IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 1442-00

 

ROSARIO ZAMORANO, Appellant


v.



THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY

Keller, P.J., filed a dissenting opinion in which WOMACK and KEASLER, JJ., joined.

DISSENTING OPINION



I cannot agree with the Court's conclusion that appellant has been deprived of his right to a speedy trial. We have explained that the "essential ingredient of the Sixth Amendment's speedy trial guarantee is 'orderly expedition and not mere speed.'" (1) To determine whether this orderly expedition has been denied, the courts are called upon to balance four factors: (1) the length of delay, (2) the reasons for delay, (3) the defendant's assertion of the right, and (4) prejudice suffered by the defendant as a result of the delay. (2) We view these factors through a bifurcated prism: we defer to the trial court on the factual components of the issue and review de novo the legal components. (3)

I agree that the delay in this case is sufficiently long to trigger an analysis of the remaining Barker factors, but I disagree with the Court's conclusion that the length of delay counts heavily against the State. Because the defendant announced "not ready" on July 19, 1996, the delay between October 20, 1995 and that date should not count against the State at all. Absent any indication to the contrary, we should presume - in deference to the trial court's ruling - that this portion of the delay was attributable to the defendant's lack of readiness. (4)

Moreover, while the record shows that a number of resets occurred that were not requested by the defendant, the record does not reflect that appellant objected to any of these resets until filing his speedy trial motion on June 3, 1998. The record is not unclear - it does not show any objection by appellant - but if it were unclear, the ambiguity should be resolved against appellant, because the trial court ruled 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 period allowed should not count heavily against the State. Hearing the motion two and a half months later, on August 21st, was not an unduly lengthy time. That leaves fourteen months until the trial occurred - or a year, if one counts from the time the motion to reconsider was filed. Although sufficient to trigger a Barker analysis, this time period is hardly the overwhelming amount of time that courts have found to weigh heavily against the government, as eight months to a year has generally been considered the minimum to trigger a speedy trial analysis in the first place. (5)

Concerning the State's reasons for delay, the Court infers that the delay was occasioned by the prosecutors' inability to comprehend the Spanish videotape. But another reason is apparent from the record: plea negotiations. Appellant pled no contest immediately after the trial court heard the speedy trial motion a second time (October 1999), and the parties informed the trial court that they had entered a plea agreement. Although the record does not reflect how extensive the negotiations were or when they occurred, the timing of the plea is evidence that at least some time was spent on plea negotiations. We have previously recognized that engaging in plea negotiations is a valid reason for delay and does not weigh against the State. (6) And because the record does not show how much of the delay was for plea negotiations as opposed to some other purpose, it is problematic to arrive at the conclusion that any of the delay weighs against the State - much less that it weighs heavily.

As for the assertion-of-the-right factor, the defendant waited approximately two-and-a-half years from the time he was charged to file his speedy trial motion. Although he filed a motion to reconsider two months after his original motion was denied, the record does not reflect that he tried to procure a hearing on the motion any earlier than the hearing actually held in October of 1999. Given that a year elapsed between the time the motion to reconsider was filed and the time it was heard, the defense's conduct can hardly be considered a "persistent" assertion of the right.

Finally, appellant has failed to show significant prejudice. Because he was on bail, appellant did not suffer oppressive incarceration because of the delay. And he has never asserted that his defense was impaired in any way. His claim to prejudice relates to anxiety suffered and the loss of some income from missing work. Although appellant gave some testimony at the August 21, 1998 hearing regarding anxiety that he suffered, that testimony is general and does not indicate that the anxiety suffered is any more than would ordinarily flow from a criminal prosecution. The Court says that the length of delay itself supports an inference of actual prejudice. But holding that one of the Barker factors standing alone can ever support an inference of actual prejudice is contrary to Barker. Moreover, even if one could infer actual prejudice from the existence of one Barker factor, the length of delay in this case would not support such an inference.

And finally, although appellant did suffer financially from having to appear 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 six days while the maximum term of confinement was 180 days, and appellant faced a maximum possible fine of $2,000. (7)

So, the delay attributable to the State was not particularly long, the delay was due at least in part to plea negotiations, appellant's assertions of the right to a speedy trial were tardy and infrequent, and the prejudice suffered was minimal. A balancing of the four Barker factors leads me to conclude that appellant was not deprived of his constitutional right to a speedy trial.

I respectfully dissent.

KELLER, Presiding Judge

Filed: September 11, 2002

Publish







1. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

2. Id.; Barker v. Wingo, 407 U.S. 514 (1972).

3. Munoz, 991 S.W.2d at 821.

4. In footnote 31, the Court argues that a single announcement of "not ready" should not automatically waive the period of delay occurring before the announcement. The Court points out that unforeseeable events - such as medical, personal, or professional problems - could temporarily make the defense unable to proceed on a specific 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 should assume that the defendant was not ready prior to his announcement. If the defendant was ready before and became unready due to an unforeseeable event, then the defendant should ensure that the record reflects those facts, so that an appellate court can take those into account without engaging in speculation.

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

6. Munoz, 991 S.W.2d at 824-825.

7. See TEX. PEN. CODE 12.22 & 49.04(c)(1996).