zamorano v state, 84 s w 3d 643 (tex crim app 2002)

8/14/2019 zamorano v state, 84 s w 3d 643 (tex crim app 2002)

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Zamorano v. State, 84 S.W.3d 643 (Tex.Crim.App. 09/11/2002)

[1] Texas Court of Criminal Appeals

[2] NO. 1442-00

[3] 84 S.W.3d 643, 2002.TX.0005820

[4] September 11, 2002

[5] ROSARIO ZAMORANO, APPELLANTv.

THE STATE OF TEXAS

[6] ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEWFROM THE FOURTH COURT OF APPEALS BEXAR COUNTY

[7] The opinion of the court was delivered by: Cochran, J.

[8] Cochran, J., delivered the opinion of the Court in which Meyers, Price,Johnson, and Holcomb, J.J., joined. Keller, P.J., filed a dissentingopinion in which Womack and Keasler, J.J., joined. Womack, J., fileda dissenting opinion in which Keller, P.J., joined. Hervey, J., is notparticipating.

[9] OPINION

[10] Appellant was charged with Driving While Intoxicated ("DWI") inOctober 1995, but his case was repeatedly reset and lingered on thedocket for almost four years. Appellant twice filed speedy trialmotions, which the trial court heard and denied. The court of appealsaffirmed the trial court's ruling. *fn1 We granted review in this case todetermine whether the court of appeals correctly applied the federalconstitutional speedy trial factors set out in Barker v. Wingo. *fn2 Weconclude that, under the applicable United States Supreme Court
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precedent, appellant was denied his right to a speedy trial. Therefore,we reverse the trial court's judgment of conviction.

[11] I.

[12] On October 20, 1995, appellant was charged with DWI- OpenContainer. He posted bail that same day and made his first courtappearance on November 13, 1995. His case was reset to December 13.He appeared on that date. And on December 14, and again on January16, 1996, when his case was reset for a jury trial. On June 3, 1998,after his case was reset six more times over the subsequent two andone-half years, appellant finally moved to set aside the indictment,

arguing that he had been denied his right to a speedy trial. At anAugust 21, 1998 hearing-in which appellant's counsel listed each of theprior appearances, appellant testified to how he had been prejudiced,and the State stood silent-the trial judge denied the motion. Appellantcontinued to appear in court for additional resets. After two moreresettings in two months, appellant filed a motion to reconsider hisoriginal speedy trial motion.

[13] Despite the filing of appellant's motion to reconsider on October 19,

1998, the trial court did not hear it until August 6, 1999. By then,appellant had appeared in court some fifteen times. Almost four yearshad passed since he was originally charged with DWI. After the trialjudge again denied appellant's speedy trial motion, appellant thenpleaded no contest.

[14] Appellant appealed the denial of his speedy trial motion. The court ofappeals affirmed and held that the trial court did not err in denyingappellant's motion for speedy trial and his motion to reconsider. *fn3The court of appeals reasoned that "[a]lthough the State failed tointroduce any reason for the delay, [appellant] failed to assert his rightfor over two and one-half years, and he failed to show that he wasprejudiced by the delay." *fn4

[15] II.

[16] The Sixth Amendment to the United States Constitution guarantees theaccused's right to a speedy trial. *fn5 In addition, Article I, 10 of the
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Texas Constitution guarantees the accused in all criminal prosecutionsthe right to a speedy and public trial. *fn6 The Supreme Court hasstated that, "On its face, the Speedy Trial Clause is written with suchbreadth that, taken literally, it would forbid the government to delay thetrial of an `accused' for any reason at all." *fn7 Thus, in Barker v.Wingo, the Court "qualified the literal sweep of the provision" byanalyzing the constitutional question in terms of four specific factors:

[17] 1) "whether delay before trial was uncommonly long"; *fn8

[18] 2) " whether the government or the criminal defendant is more toblame for that delay"; *fn9

[19] 3) "whether, in due course, the defendant asserted his right to a speedytrial"; *fn10 and

[20] 4) "whether he suffered prejudice as the delay's result." *fn11 TheTexas constitutional speedy trial right exists independently of thefederal guarantee, but this Court has traditionally analyzed claims of adenial of the state speedy trial right under the factors established in

Barker v. Wingo. *fn12

[21] Under Barker v. Wingo, courts must analyze federal constitutionalspeedy trial claims by first weighing the strength of each of the abovefactors and then balancing their relative weights in light of "theconduct of both the prosecution and the defendant." *fn13 None of thefour factors is "either a necessary or sufficient condition to the findingof a deprivation of the right of speedy trial." *fn14 Instead, they arerelated factors, which must be considered together along with anyother relevant circumstances. *fn15 No one factor possesses"talismanic qualities," thus courts must "engage in a difficult andsensitive balancing process" in each individual case. *fn16

[22] In reviewing the trial court's ruling on appellant's federal constitutionalspeedy trial claim, we apply a bifurcated standard of review: an abuseof discretion standard for the factual components, and a de novostandard for the legal components. *fn17 Because appellant lost in thetrial court on his speedy trial claim, we must presume the trial courtresolved any disputed fact issues in the State's favor, and we must also
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defer to the implied findings of fact that the record supports. *fn18Because most of the facts are undisputed, the primary issue in this caseinvolves the legal significance of these facts to appellant's claim. *fn19

[23] III.

[24] A. Length of the Delay

[25] The length of the delay between an initial charge and trial (or thedefendant's demand for a speedy trial) acts as a "triggeringmechanism." *fn20 Unless the delay is presumptively prejudicial,

courts need not inquire into examine the other three factors. *fn21Given the "imprecision of the right to speedy trial, the length of delaythat will provoke such an inquiry is necessarily dependent upon thepeculiar circumstances of the case." *fn22 However, the SupremeCourt has explained that "the delay that can be tolerated for anordinary street crime is considerably less than for a serious, complexconspiracy charge." *fn23 If the accused shows that the intervalbetween accusation and trial has crossed the threshold dividing"ordinary" from "presumptively prejudicial" delay, a court must thenconsider the extent to which that delay stretches beyond the bare

minimum needed to trigger judicial examination of the claim. *fn24This second inquiry is significant to the speedy trial analysis because"the presumption that pretrial delay has prejudiced the accusedintensifies over time." *fn25 Thus, any speedy trial analysis dependsfirst upon whether the delay is more than "ordinary"; if so, the longerthe delay beyond that which is ordinary, the more prejudicial that delayis to the defendant.

[26] In this case, the State conceded (and the court of appeals agreed) thatthe delay between appellant's arrest and the hearing on his speedy trialmotion in this plain-vanilla DWI case, a delay of two years and tenmonths, was sufficiently lengthy to trigger the court of appeals'analysis of the other Barker factors. We agree. *fn26 Furthermore, thenearly four-year delay between appellant's October 20, 1995, arrest andhis August 6, 1999, plea hearing clearly triggers analysis of the otherBarker factors. Because the length of the delay stretched well beyondthe bare minimum needed to trigger judicial examination of the claim,this factor-in and of itself--weighs heavily against the State.
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[27] B. Reasons for the Delay

[28] "[R]elated to length of delay is the reason the government assigns tojustify the delay." *fn27 We assign different weights to differentreasons. For example,

[29] [a] deliberate attempt to delay the trial in order to hamper the defenseshould be weighted heavily against the government ... [while a] moreneutral reason such as negligence or overcrowded courts should beweighted less heavily but nevertheless should be considered since theultimate responsibility for such circumstances must rest with thegovernment rather than with the defendant. *fn28

[30] Although a finding of "bad-faith delay" renders relief almostautomatic, a finding of mere negligence will not become"automatically tolerable simply because the accused cannotdemonstrate exactly how it has prejudiced him." *fn29

[31] The court of appeals found that this factor weighed against the State"[b]ecause the record is silent regarding the reason for the delay," but

the court of appeals did not weigh it heavily because "no evidenceexists that the State deliberately attempted to delay the trial." *fn30 Weagree that this factor weighs against the State. The docket sheet showsthat twenty-two resets occurred between November 13, 1995 (the dateof appellant's first appearance) and August 6, 1999 (the date of thedenial of the motion to reconsider the motion for speedy trial, and pleaof no contest). As the court of appeals notes, and appellant candidlyadmits, he announced "not ready" on July 19, 1996. One reset istherefore clearly attributable to appellant's conduct. *fn31 But thatreset was apparently for three days, until July 22, 1996, to giveappellant time to file written pretrial motions in limine, to suppressevidence, and to request a list of the State's witnesses. Still, the Stategave no reason for the remainder of the delay that the court of appealsconsidered- the delay "between the date Zamorano announced `notready' and the date his motion for speedy trial was heard - a delay ofapproximately two years." And more strikingly, the State gave noreason for the continued delay-the additional year between the dateappellant's original motion for speedy trial was denied and the date thatthe trial court rejected his motion to reconsider. *fn32 This was not acomplex case; it was a simple DWI, and yet the State had noexplanation for why it could not try the case for four years.
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[32] We disagree that the record is entirely silent concerning the reasons forthe delay. The docket sheet entry for January 14, 1999 states: "Transferto CC #2 (Video is in Spanish)" and "Set for Motions & Trial 2-18-99." This entry supports trial counsel's explanation, at the speedy trialhearing, that the delay arose partially because the prosecutors did notunderstand appellant, who spoke Spanish. Had appellant spoken anunusual language, the difficulty in finding an interpreter would beunderstandable and support additional delay, but Spanish speakers andinterpreters in San Antonio, Texas, are hardly rare. While no evidenceindicates that the State deliberately attempted to delay the trial, the factthat the State could not evaluate appellant's Spanish-speaking video formore than three years, until the case was transferred to another court,

constitutes official negligence. "Although negligence is obviously to beweighed more lightly than a deliberate intent to harm the accused'sdefense, it still falls on the wrong side of the divide between acceptableand unacceptable reasons for delaying a criminal prosecution once ithas begun." *fn33 We find that this factor weighs against the State--while not heavily, not lightly either. Furthermore, this factor weighsmore heavily against the State because, even after the case wastransferred to another court for a Spanish-speaking prosecutor to assessappellant's DWI video, the case still lingered on the docket for anothersix months.

[33] C. Assertion of the Right

[34] According to the Supreme Court, the nature of the speedy trial right"makes it impossible to pinpoint a precise time in the process when theright must be asserted or waived, but that fact does not argue forplacing the burden of protecting the right solely on defendants." *fn34Of course, the defendant has no duty to bring himself to trial; that isthe State's duty. *fn35 This does not mean that the defendant has noresponsibility to assert his right to a speedy trial. *fn36 Whether andhow a defendant asserts his speedy trial right is closely related to theother three factors because the strength of his efforts will be shaped bythem. *fn37 Therefore, the defendant's assertion of his speedy trialright is entitled to strong evidentiary weight in determining whether thedefendant is being deprived of the right. *fn38 Conversely, a failure toassert the right makes it difficult for a defendant to prove that he wasdenied a speedy trial. *fn39
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[35] Appellant filed his motion for speedy trial on June 3, 1998, about twoand one-half years from the date of his arrest. *fn40 The record isunclear whether appellant objected to the resets before that date.During the two hearings, defense counsel argued that appellant hadannounced "ready" on all dates, save the one "not ready" mentionedabove. The court of appeals discounted appellant's second try for aspeedy trial because "there [was] no indication that he requested animmediate setting of the motion to reconsider," and held thatappellant's "delay and lack of persistence in asserting his right to aspeedy trial weigh[ed] against him." *fn41

[36] We disagree that the assertion-of-the-right factor weighs againstappellant. It is true that appellant's initial motion was tardy. This late

assertion, had no subsequent motion been filed, might well haveundercut his Sixth Amendment claim. *fn42 But appellant's secondattempt to seek a speedy trial, which came less than two months afterthe trial court denied his initial motion, evidenced his persistence.*fn43 This is not a case where appellant never asked for a hearing.*fn44 Nor is this a case in which evidence shows a defendant'saffirmative desire for any delay. *fn45 Appellant's repeated assertionweighs in his favor.

[37] D. Prejudice Caused by the Delay

[38] "Prejudice, of course, should be assessed in the light of the interests ofdefendants which the speedy trial right was designed to protect." *fn46The Supreme Court has identified three such interests: 1) to preventoppressive pretrial incarceration; 2) to minimize anxiety and concernof the accused; and 3) to limit the possibility that the defense will beimpaired. *fn47 Although the last type of prejudice is the most serious,*fn48 a defendant's claim of a speedy trial violation need notnecessarily demonstrate prejudice to his ability to present defensivematters. *fn49 Appellant was on bail pending his trial and has neverclaimed that his defense was specifically impaired. The first and thirdinterests are not strongly implicated. The second clearly is. Appellanttestified regarding his anxiety and concern:

[39] Q: Mr. Zamorano, were you arrested for a D.W.I. back in October of1995?
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[40] A: Yes.

[41] Q: And did you hear me telling the Court all the court dates that wehad been present for?

[42] A: Yes.

[43] Q: And is it true that you have been present in court on all of thosedates?

[44] A: Yes.

[45] Q: And what do you do for a living, sir?

[46] A: I'm a cement finisher, concrete finisher.

[47] Q: And when you've had to come to these court dates, have you missed

work?

[48] A: I've had to work. Right now I was going to work. I was going towork now.

[49] Q: And if you don't work, do you get paid?

[50] A: No.

[51] Q: So you've had to miss working on at least eleven days because ofthis case?

[52] A: Yes, the whole time - the whole time I've missed.

[53] Q: And you didn't get paid for any of those days?


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[54] A: No.

[55] Q: And it's true that you're out on a bond right now; is that correct?

[56] A: Yes. Yes.

[57] ***

[58] Q: How often do you have to report to the company?

[59] A: Every Tuesday-On Tuesdays.

[60] Q: And when you have to report to the bond company, do you alsomiss work?

[61] A: No, I have work, but I've gone at 9, 8 at night, even as late as 10 atnight.

[62] Q: So you have to go after work?

[63] A: From the work I go to report.

[64] Q: And has this case caused you anxiety?

[65] A: Yes, a lot of desperation I've had. Yes.

[66] Q: Have you been worried about what was going to happen every timeyou've come to court?

[67] A: Yes. Yes.


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[68] Q: Can you tell the Judge ho-how it's affected you that you've had tocome back to court now for three years?

[69] A: Well, it's like-it's like affected me a lot because they give me 120per day and I don't earn, I lose. Well, I can't-can't-can't go, becauselike last night they called me and now I can't go.

[70] Q: And how does that make you feel? Are you stressed out, worried?

[71] A: Yes, yes like thinking about what was going to go on tomorrowthinking-thinking-I wanted to receive something from her-from her[defense counsel]. I wanted to see her, but she was working here in thecenter of town. But I got out late-I got out late and I could not see her.

[72] The State did not cross examine appellant, put on any evidence, orargue against the motion.

[73] The court of appeals- relying on the fact that "the only evidence[appellant] offered to demonstrate his anxiety was his testimony"-found that appellant's testimony was too little and too late to support ashowing of prejudice. The court of appeals said: "given [appellant's]failure to pursue a motion for speedy trial for over two and one-halfyears, we infer that the main source of his anxiety was his fear ofconviction, which is not a proper consideration." *fn50 We cannotagree with this inference. In Klopfer v. North Carolina, the Courtnoted:

[74] The petitioner is not relieved of the limitations placed upon his libertyby this prosecution merely because its suspension permits him to go"whithersoever he will." The pendency of the indictment may subjecthim to public scorn and deprive him of employment, and almostcertainly will force curtailment of his speech, associations andparticipation in unpopular causes. By indefinitely prolonging thisoppression, as well as the "anxiety and concern accompanying publicaccusation," the criminal procedure condoned in this case ... clearlydenies the petitioner the right to a speedy trial ... *fn51


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[75] In Barker, the Court added that, "even if an accused is not incarceratedprior to trial, he is still disadvantaged by restraints on his liberty and byliving under a cloud of anxiety, suspicion, and often hostility." *fn52Appellant testified-in Spanish - that he lost $120 per day that he didnot work. When appellant testified, he had missed at least eleven daysof work due to court appearances. That is a minimum of $1,320 worthof personal prejudice to a day laborer. *fn53 It is true that the onlyevidence appellant offered to demonstrate his anxiety was his owntestimony. However, because the State did not challenge appellant'stestimony, it is at least some evidence of the type of "anxiety" that theSupreme Court considers under the prejudice prong of Barker. *fn54The court of appeals dismissed the main source of appellant's anxietyas "his fear of conviction." *fn55 Even assuming that the court ofappeals correctly characterized the source of appellant's anxiety, the

sword of Damocles weighs no less merely because the source ofanxiety is appellant's fear of conviction and the resultant as-yet-unknown punishment. Here, the length of the delay itself supports aninference of actual prejudice, as does appellant's testimony of thedirect economic costs, the four years' worth of disruptions to his job,and the weekly requirement to report to the bonding company. *fn56

[76] E. Balancing

[77] We find that all four factors weigh in favor of relief. First, the length ofthe initial delay- two years and ten months- was presumptivelyprejudicial, and the additional year of delay after the denial ofappellant's original speedy trial motion was clearly prejudicial. Second,the delay was the result of the State's negligence. Third, appellanttwice asserted his right to a speedy trial. Finally, appellant producedevidence of prejudice which the State failed-indeed did not attempt- torebut. At no point did the State challenge the merits of appellant's claimto a speedy trial. The State sat silent on all fronts; it neither offered anyevidence, nor cross-examined appellant, nor made any legal argumentin the trial court to justify the delay. *fn57 Because the State'snegligence caused a delay which was nearly six times as long as thedelay generally considered sufficient to trigger judicial review and itdid not rebut, explain, or minimize the presumption of prejudice,appellant is entitled to relief. *fn58 Even if appellant's actual prejudicewas minimal, "[c]ondoning prolonged and unjustifiable delays inprosecution would both penalize many defendants for the state's faultand simply encourage the government to gamble with the interests ofcriminal suspects assigned a low prosecutorial priority." *fn59 ThisDWI prosecution may have been of little moment to the State, but it
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mattered greatly to appellant. *fn60 Because we find that appellant'sconstitutional right to a speedy trial was violated, we reverseappellant's conviction and remand the case to the trial court for entry ofa judgment of acquittal.

[78] Publish

[79] Keller, P.J., filed a dissenting opinion in which WOMACK andKEASLER, JJ., joined.

[80] DISSENTING OPINION

[81] I cannot agree with the Court's conclusion that appellant has beendeprived of his right to a speedy trial. We have explained that the"essential ingredient of the Sixth Amendment's speedy trial guaranteeis `orderly expedition and not mere speed.'" *fn61 To determinewhether this orderly expedition has been denied, the courts are calledupon to balance four factors: (1) the length of delay, (2) the reasons fordelay, (3) the defendant's assertion of the right, and (4) prejudicesuffered by the defendant as a result of the delay. *fn62 We view these

factors through a bifurcated prism: we defer to the trial court on thefactual components of the issue and review de novo the legalcomponents. *fn63

[82] I agree that the delay in this case is sufficiently long to trigger ananalysis of the remaining Barker factors, but I disagree with the Court'sconclusion that the length of delay counts heavily against the State.Because the defendant announced "not ready" on July 19, 1996, thedelay between October 20, 1995 and that date should not count againstthe State at all. Absent any indication to the contrary, we shouldpresume - in deference to the trial court's ruling - that this portion ofthe delay was attributable to the defendant's lack of readiness. *fn64

[83] Moreover, while the record shows that a number of resets occurred thatwere not requested by the defendant, the record does not reflect thatappellant objected to any of these resets until filing his speedy trialmotion on June 3, 1998. The record is not unclear - it does not showany objection by appellant - but if it were unclear, the ambiguityshould be resolved against appellant, because the trial court ruled
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against him, and we should assume that he agreed to the resets. Since,at the least, appellant did not complain about the resets, the time periodallowed should not count heavily against the State. Hearing the motiontwo and a half months later, on August 21st, was not an unduly lengthytime. That leaves fourteen months until the trial occurred - or a year, ifone counts from the time the motion to reconsider was filed. Althoughsufficient to trigger a Barker analysis, this time period is hardly theoverwhelming amount of time that courts have found to weigh heavilyagainst the government, as eight months to a year has generally beenconsidered the minimum to trigger a speedy trial analysis in the firstplace. *fn65

[84] Concerning the State's reasons for delay, the Court infers that the delay

was occasioned by the prosecutors' inability to comprehend theSpanish videotape. But another reason is apparent from the record:plea negotiations. Appellant pled no contest immediately after the trialcourt heard the speedy trial motion a second time (October 1999), andthe parties informed the trial court that they had entered a pleaagreement. Although the record does not reflect how extensive thenegotiations were or when they occurred, the timing of the plea isevidence that at least some time was spent on plea negotiations. Wehave previously recognized that engaging in plea negotiations is a validreason for delay and does not weigh against the State. *fn66 And

because the record does not show how much of the delay was for pleanegotiations as opposed to some other purpose, it is problematic toarrive at the conclusion that any of the delay weighs against the State -much less that it weighs heavily.

[85] As for the assertion-of-the-right factor, the defendant waitedapproximately two-and-a-half years from the time he was charged tofile his speedy trial motion. Although he filed a motion to reconsidertwo months after his original motion was denied, the record does notreflect that he tried to procure a hearing on the motion any earlier thanthe hearing actually held in October of 1999. Given that a year elapsedbetween the time the motion to reconsider was filed and the time it washeard, the defense's conduct can hardly be considered a "persistent"assertion of the right.

[86] Finally, appellant has failed to show significant prejudice. Because hewas on bail, appellant did not suffer oppressive incarceration becauseof the delay. And he has never asserted that his defense was impairedin any way. His claim to prejudice relates to anxiety suffered and the


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loss of some income from missing work. Although appellant gavesome testimony at the August 21, 1998 hearing regarding anxiety thathe suffered, that testimony is general and does not indicate that theanxiety suffered is any more than would ordinarily flow from acriminal prosecution. The Court says that the length of delay itselfsupports an inference of actual prejudice. But holding that one of theBarker factors standing alone can ever support an inference of actualprejudice is contrary to Barker. Moreover, even if one could inferactual prejudice from the existence of one Barker factor, the length ofdelay in this case would not support such an inference.

[87] And finally, although appellant did suffer financially from having toappear in court a repeated number of times, he eventually obtained a

very favorable deal from the State: fifteen days confinement and a$500 fine. The minimum term of confinement for the charged offense,driving while intoxicated with an open container in the car, was sixdays while the maximum term of confinement was 180 days, andappellant faced a maximum possible fine of $2,000. *fn67

[88] So, the delay attributable to the State was not particularly long, thedelay was due at least in part to plea negotiations, appellant's assertionsof the right to a speedy trial were tardy and infrequent, and the

prejudice suffered was minimal. A balancing of the four Barker factorsleads me to conclude that appellant was not deprived of hisconstitutional right to a speedy trial.

[89] I respectfully dissent.

[90] KELLER, Presiding Judge

[91] Womack, J., filed a dissenting opinion in which Keller, P.J., joined.

[92] What does the Court's opinion say? It may say either, or both, of twothings.

[93] The first, and I hope only, thing the Court says today is that, as amatter of law, the State cannot justify years of delay in trying a case bysaying that a prosecutor and a court in Bexar County couldn't, or
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wouldn't, interpret words spoken in Spanish on a videotape. Whilesuch a justification may be disappointing and surprising, I would notsay it necessarily amounts to a constitutional violation.

[94] The other thing the Court might be understood to say is that adefendant can make out a constitutional violation if the only detrimenthe can show is that he was worried about the pending charge. If that isenough to amount to a constitutional violation, then delays per se willbe constitutional violations if they were not occasioned by thedefendant.

[95] Surely the adage I learned in law school is still true: "Never tried,

never convicted." That is, delay normally helps the defendant. (Afterlaw school, I learned an important qualification: the adage applies onlyif the defendant is on bail. If the defendant is in jail awaiting trial,punishment has effectively started without a conviction.)

[96] The appellant was on bail. He sought a delay, and got one for threemonths, when the court accepted his announcement of "not ready."This suggests that his concern about a speedy trial did not mature untilhe thought he had a colorable claim for dismissal. It is almost

judicially noticeable that a speedy trial is the last thing most speedy-trial movants want, if they are admitted to bail.

[97] The harm to the public of having someone who drinks and drives(which I understand to be an unquestioned fact) on bail for four yearsmight be more grave than any harm that the appellant alleged.

[98] I agree with much of the Presiding Judge's opinion, ante. I respectfullydissent.

Opinion Footnotes

[99] *fn1 Zamorano v. State, 21 S.W.3d 664 (Tex. App. - San Antonio2000).
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[100] *fn2 Barker v. Wingo , 407 U.S. 514 (1972). We granted review on thefollowing issues: 1) Whether the court of appeals has decided animportant question of law in conflict with the decisions of the SupremeCourt of the United States, in that the court held that a defendantwaives his claim that he was denied a speedy trial where he does notassert the claim with immediacy, and that the defendant must showmore than "some" prejudice when asserting he has been denied hisright to a speedy trial; and 2) Whether the court of appeals hassanctioned a departure from the accepted and usual course of judicialproceedings by the trial court, so as to call for the exercise of the Courtof Criminal Appeals power of supervision, in that the court of appealsaffirmed the trial court's clearly erroneous application of the law to the

facts, placing an unconstitutional degree of burden on a defendant whoattempts to assert his constitutional right to a speedy trial was violated.

[101] *fn3 Zamorano, 21 S.W.3d at 667.

[102] *fn4 Id.

[103] *fn5 See Barker v. Wingo, 407 U.S. at 515; Dickey v. Florida, 398U.S. 30, 37 (1970); Smith v. Hooey, 393 U.S. 374, 377-78 (1969);Klopfer v. North Carolina, 386 U.S. 213, 223 (1967).

[104] *fn6 Article 1.05 of the Texas Code of Criminal Procedure alsoprovides that "[i]n all criminal trials the accused shall have a speedypublic trial by an impartial jury."

[105] *fn7 Doggett v. U.S., 505 U.S. 647, 651 (1992).

[106] *fn8 Id. (citing Barker v. Wingo, 407 U.S. at 530).

[107] *fn9 Id.

[108] *fn10 Id.
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[109] *fn11 Id.

[110] *fn12 See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App.1992); see also Deeb v. State, 815 S.W.2d 692, 704 (Tex. Crim. App.1991); Chapman v. Evans, 744 S.W.2d 133, 135 (Tex. Crim. App.1988); Hull v. State, 699 S.W.2d 220, 221-224 (Tex. Crim. App. 1985).

[111] *fn13 407 U.S. at 530.

[112] *fn14 Id. at 533.

[113] *fn15 Id.

[114] *fn16 Id.

[115] *fn17 State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

[116] *fn18 Id.

[117] *fn19 "The balancing test as a whole . . . is a purely legal question.Legal questions are reviewed de novo." Johnson v. State, 954 S.W.2d770, 771 (Tex. Crim. App. 1997).

[118] *fn20 Barker v. Wingo, 407 U.S. at 530.

[119] *fn21 Id.

[120] *fn22 Id. at 530-31.

[121] *fn23 Id. at 531.

[122] *fn24 Doggett v. U.S., 505 U.S. at 652.
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[123] *fn25 Id.

[124] *fn26 See Harris v. State, 827 S.W.2d at 956 (recognizing that courtsgenerally hold that any delay of eight months or longer ispresumptively unreasonable and triggers speedy trial analysis).

[125] *fn27 Barker v. Wingo, 407 U.S. at 531.

[126] *fn28 Id.

[127] *fn29 Doggett, 505 U.S. at 656-57.

[128] *fn30 Zamorano, 21 S.W.3d at 666-67.

[129] *fn31 One could argue that, in certain circumstances, a singleannouncement of "not ready" by defense counsel automatically waives

the entire time period and all of the delay before that announcement.Such a rule, however, would make a defendant's right to a speedy trialforfeitable due to unforeseeable events. Medical, personal, andprofessional problems or conflicts could temporarily make either thedefense or prosecution unready to proceed on a specific trial date.Although announcing "not ready" at a particular trial setting mightshow either the State's or defense counsel's lack of preparedness, lackof readiness at one setting does not automatically apply to all priortime periods. Such a rule would be unfair to both the defense andState.

[130] *fn32 Cf. Harris, 827 S.W.2d at 956 (no denial of a speedy trial wherethe state's delay was due to the case's complexity; "it is apparent fromthe record that the prosecution's case was in fact quite complicated anddoubtlessly required a great deal of preparation. Indeed, ourexamination of the record shows that the State presented 51 witnessesand 161 exhibits during appellant's five-month trial").

[131] *fn33 Doggett, 505 U.S. at 657.


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[132] *fn34 Barker, 407 U.S. at 527 (footnotes omitted).

[133] *fn35 Id.

[134] *fn36 Id.

[135] *fn37 Id. at 531.

[136] *fn38 Id. at 531-32.

[137] *fn39 Id. at 532.

[138] *fn40 Appellant's motion was framed as a motion to dismiss. This factpotentially weakens appellant's case, as "a dismissal instead of aspeedy trial weakens [a speedy trial] claim because it shows a desire tohave no trial instead of a speedy trial." Parkerson v. State, 942 S.W.2d

789, 791 (Tex. App.-- Fort Worth 1997, no pet.). But "[e]ach case mustturn on its own facts, and the particular relief a defendant seeks is butone fact to consider." Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim. App. 1983). At the hearing on appellant's motion, defensecounsel stated, "And I believe that we've met all the requirementsneeded for the Court to grant us a speedy trial, and we ask you to dothat." Given the circumstances, the motion to dismiss was a means ofalerting the trial court and the State of the delay and appellant's lack ofacquiescence to it, and not necessarily an attempt to escape trialcompletely.

[139] *fn41 21 S.W.3d at 667.

[140] *fn42 Although Judge Womack's adage, "Never tried, neverconvicted," see infra slip op. at 2 (Womack, J., dissenting), may betrue as a general proposition, this case proves the exception to thatrule. Here, the trial judge may well have been within his discretion indenying appellant's first speedy trial motion, but surely, once appellanthad clearly asserted his right to a speedy trial, he should have been


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[147] *fn49 Appellant's failure to cite any specific "demonstrable" prejudice--that is, impairment of his ability to present potential defenses--doesnot doom his claim, since excessive delay can compromise a trial'sreliability in unidentifiable ways. Moore v. Arizona, 414 U.S. 25, 26-27 (1973)(per curiam). "[T]hough time can tilt the case against eitherside . . . one cannot generally be sure which of them it has prejudicedmore severely. Thus, we generally have to recognize that excessivedelay presumptively compromises the reliability of a trial in ways thatneither party can prove or, for that matter, identify. While suchpresumptive prejudice cannot alone carry a Sixth Amendment claimwithout regard to the other Barker criteria, . . . it is part of the mix ofrelevant facts, and its importance increases with the length of delay."Doggett, 505 U.S. at 655- 56.

[148] *fn50 21 S.W.3d at 667.

[149] *fn51 386 U.S. at 221-22 (footnote omitted).

[150] *fn52 407 U.S. at 532.

[151] *fn53 See, e.g., State v. Burckhardt, 952 S.W.2d 100, 104 (Tex.App.-San Antonio 1997)(prejudice established, in part, where appellantshowed disruptions in his work and income stream).

[152] *fn54 Cf. Schenekl v. State, 996 S.W.2d 305, 314 (Tex. App.- FortWorth 1999)("Though appellant has established [via his testimony that"the delay in bringing him to trial put him on `pins and needles' thewhole time"], and the State has failed to rebut, the anxiety element, itis not enough to cause the prejudice prong to weigh in appellant'sfavor."), aff'd, 30 S.W.3d 412 (Tex. Crim. App. 2000).

[153] *fn55 21 S.W.3d at 667.

[154] *fn56 Doggett, 505 U.S. at 655-56.

[155] *fn57 See Santallan v. State, 922 S.W.2d 306, 308 (Tex. App.-FortWorth 1996, pet. ref'd)(accepting as evidence appellant's allegations


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that he did not receive his trial until more than two years after he firstrequested a speedy trial because the allegations were uncontested at thespeedy trial hearing).

[156] *fn58 See Doggett, 505 U.S. at 657-58.

[157] *fn59 Id. at 657.

[158] *fn60 "The Government, indeed, can hardly complain too loudly, forpersistent neglect in concluding a criminal prosecution indicates anuncommonly feeble interest in bringing an accused to justice; the more

weight the Government attaches to securing a conviction, the harder itwill try to get it." Doggett, 505 U.S. at 657.

[159] *fn61 State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

[160] *fn62 Id.; Barker v. Wingo, 407 U.S. 514 (1972).

[161] *fn63 Munoz, 991 S.W.2d at 821.

[162] *fn64 In footnote 31, the Court argues that a single announcement of"not ready" should not automatically waive the period of delayoccurring before the announcement. The Court points out thatunforeseeable events -such as medical, personal, or professionalproblems - could temporarily make the defense unable to proceed on aspecific trial date. I agree. My point is not that an announcement of"not ready" automatically and inflexibly waives the preceding time.My point is that we should give deference to the trial court's resolution,and that absent an indication to the contrary in the record, we shouldassume that the defendant was not ready prior to his announcement. Ifthe defendant was ready before and became unready due to anunforeseeable event, then the defendant should ensure that the recordreflects those facts, so that an appellate court can take those intoaccount without engaging in speculation.

[163] *fn65 See Doggett v. United States, 505 U.S. 647, 657-658 (one yeargenerally considered the threshold for speedy trial claim; a six year
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delay attributable to the government - out of an eight-and-a-half yeartotal delay - was considered especially egregious); Knox v. State, 934S.W.2d 678, 681 (Tex. Crim. App. 1996)(stating that an eight-monthdelay is generally sufficient to trigger a speedy trial claim).

[164] *fn66 Munoz, 991 S.W.2d at 824-825.

[165] *fn67 See TEX. PEN. CODE 12.22 & 49.04(c)(1996).

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Documents

zamorano v state, 84 s w 3d 643 (tex crim app 2002)