Clarke v. State

• Decision Date: 08 August 1996
• Docket Number: No. 2-94-250-CR,2-94-250-CR
• Parties: Matthew Thomas CLARKE, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 709

928 S.W.2d 709

Matthew Thomas CLARKE, Appellant, v. The STATE of Texas, State.

No. 2-94-250-CR.

Court of Appeals of Texas,

Fort Worth.

Aug. 8, 1996.

Rehearing Overruled Sept. 19, 1996.

Matthew Thomas Clarke, pro se, Rosharon, H.F. Rick Hagen, Jackson & Hagen, Denton, for appellant.

Bruce Isaacks, Criminal District Attorney; Kathleen A. Walsh, Lisa Decker, Assistant District Attorneys, Denton, for appellee.

Before DAY, LIVINGSTON and HOLMAN, JJ.

OPINION ON REHEARING

DAY, Justice.

PROCEDURAL HISTORY AND APPELLATE REVIEW

We handed down this opinion on February 29, 1996 and published only those portions of the opinion addressing the speedy trial and venue points of error. This opinion has raised concerns about the proper standard of review of a speedy trial claim. On March 18, 1996, Matthew Thomas Clarke filed his amended motion for rehearing in this case, which we grant. Our prior opinion is withdrawn and this opinion is substituted in its entirety.

A jury found Clarke guilty of aggravated sexual assault on April 6, 1988. Clarke appealed his conviction, and we found reversible error and remanded the case for a new trial on the punishment phase only. Clarke v. State, 785 S.W.2d 860 (Tex.App.--Fort Worth 1990), aff'd, 811 S.W.2d 99 (Tex.Crim.App.), cert. denied, 502 U.S. 946, 112 S.Ct. 390, 116 L.Ed.2d 340 (1991). In the second trial, the jury assessed punishment at 99 years' imprisonment. Clarke appeals this conviction in eight points of error. We affirm his conviction.

SPEEDY TRIAL

In his first two points of error, Clarke argues that the State violated his right to a speedy trial because his punishment was tried two years and five months after the United States Supreme Court denied certiorari on his first case. The Sixth Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment, guarantees the right to a speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 223-24, 87 S.Ct. 988, 993-94, 18 L.Ed.2d 1, 8 (1967). Although the Texas Constitution also guarantees the right to a speedy trial, Clarke complains only of the violation of his federal right. However, the test applied under either the state or federal constitution is the same. Hull v. State, 699 S.W.2d 220, 221 (Tex.Crim.App.1985); Russell v. State, 598 S.W.2d 238, 248 (Tex.Crim.App.), cert. denied, 449 U.S. 1003, 101 S.Ct. 544, 66 L.Ed.2d 300 (1980). To determine whether an accused has been denied the right to a speedy trial, the trial court employs the balancing test first enunciated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17 (1972).

Standard of Review

In Clarke's amended motion for rehearing, he argues that this court incorrectly March 1987 Clarke commits this aggravated sexual assault.

                applied an abuse of discretion standard in reviewing a trial court's analysis of a speedy trial claim under Barker v. Wingo, citing Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995) and Phillips v. State, 650 S.W.2d 396, 398 (Tex.Crim.App.1983).  According to these two Court of Criminal Appeals opinions, intermediate courts should apply the Barker v. Wingo balancing test anew.  While the language in these two opinions is subtle, we agree that Clarke is correct in determining that we must conduct the Barker balancing test de novo.  In applying this test, we consider four factors:  1) length of delay;  2) reason for the delay;  3) defendant's assertion of the right;  and 4) prejudice to the defendant resulting from that delay.  Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 116-17.   To facilitate this analysis and to address some of Clarke's misstatements of our original opinion, we have compiled the following time line
                

April 6, 1988 A jury convicts Clarke and assesses punishment at 99 years.

April 29, 1988 Clarke files notice of appeal on this offense.

August 25, 1989 A jury convicts Clarke of first extraneous offense, the aggravated sexual assault of C.V.

January 24, 1990 A jury convicts Clarke of second extraneous offense, the aggravated sexual assault of D.L.

January 31, 1990 We reverse and remand for a new trial on punishment for this aggravated assault.

May 25, 1990 Clarke files petition for discretionary review for this offense.

September 12, 1990 Court of Criminal Appeals grants PDR for this offense.

April 17, 1991 Court of Criminal Appeals affirms our opinion. 811 S.W.2d 99.

November 4, 1991 U.S. Supreme Court denies certiorari. 502 U.S. 946, 112 S.Ct. 390, 116 L.Ed.2d 340.

June 29, 1992 Conviction for first extraneous offense becomes final.

November 6, 1992 Conviction for second extraneous offense becomes final.

November 17, 1993 Clarke files motion for speedy retrial for this offense. He also files his first motion for a pretrial hearing for his more than 32 outstanding motions.

January 24, 1994 A bench warrant indicates that trial was set for this date. No record of why passed.

March 1, 1994 Clarke files first motion to dismiss for failure to provide a speedy retrial.

March 15, 1994 Trial court calls the case and sets a pretrial hearing for March 29, 1994.

March 16, 1994 A second bench warrant indicates that trial was set for this date.

March 17, 1994 Clarke files a supplemental motion for a pretrial hearing.

March 24, 1994 Clarke files second motion to dismiss for failure to provide a speedy retrial.

March 29, 1994 Pretrial hearing begins.

April 8, 1994 Pretrial hearing continues.

April 11, 1994 Pretrial hearing continues.

April 18, 1994 Retrial on punishment held and jury assesses punishment at 99 years.

June 8, 1994 Clarke files notice of appeal.

Barker

Analysis

Length of Delay

First, we must measure the length of delay. Although no specific length of time triggers a speedy trial analysis, the Court of Criminal Appeals notes that some courts presume that a delay of eight months or longer is prejudicial. See Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App.), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992). In other cases, delays of three to four years have been upheld. ¹ See Phipps v. State, 630 S.W.2d 942, 946 (Tex.Crim.App. [Panel Op.] 1982); Swisher v. State, 544 S.W.2d 379, 381 (Tex.Crim.App.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977). The U.S. Supreme

Court denied Clarke's petition for certiorari on November 4, 1991, and he was retried on April 11, 1994. Because the State concedes that this 29 month delay triggers a speedy trial analysis, we must next consider the reason for the delay.

Reason for the Delay

Once a court determines that the length of the delay triggers a speedy trial analysis or the State concedes the issue, it is the State's burden to excuse this delay. See Phillips v. State, 650 S.W.2d at 400; Turner v. State, 545 S.W.2d 133, 137-38 (Tex.Crim.App.1976). In the hearing on the speedy trial motion, the State presented only one witness, an employee of the Denton County Sheriff's Department. The employee testified that the Denton County jail was overcrowded in the two years before Clarke's retrial and that because of the overcrowding, the jail did not have a "special cell" that Clarke supposedly required when he returned to Denton for retrial. She also testified that Clarke required a large amount of space in the property room for his legal materials. However, overcrowded conditions in a county jail do not justify a two-and-a-half-year delay in bringing a case for trial. The State concedes that the record reveals no other excuse for the delay. In light of a silent record, we must presume that no valid reason existed for the delay. Phillips, 650 S.W.2d at 400. Accordingly, the State did not meet its burden in excusing the delay, and the delay weighs against the State.

Assertion of the Right

However, closely tied to the second Barker factor is the defendant's assertion of his right to a speedy trial. Assertion of the right is entitled to strong evidentiary weight. Barker, 407 U.S. at 531-32, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 117-18. A lengthy delay in asserting the right makes it difficult to prove denial of a speedy trial and tends to diminish the importance of the State's inability to excuse the delay. See County v. State, 668 S.W.2d 708, 712 (Tex.Crim.App.1984), overruled on other grounds by Holladay v. State, 709 S.W.2d 194, 195 (Tex.Crim.App.1986). Clarke filed a motion for a speedy trial on November 17, 1993, two years after the U.S. Supreme Court denied certiorari. Our original opinion correctly stated that Clarke filed his first motion for a speedy retrial on November 17, 1993. Our original opinion did not say that Clarke never asserted his right, as he incorrectly states in his motion for rehearing. He filed his first motion to dismiss for failure to provide a speedy trial on March 1, 1994 and his second on March 24, 1994. The trial court denied both motions.

A defendant's motivation in asking for a dismissal rather than a prompt trial may attenuate the strength of the claim. Phillips, 650 S.W.2d at 401; Orosco v. State, 827 S.W.2d 575, 577 (Tex.App.--Fort Worth 1992, pet. ref'd), cert. denied, 506 U.S. 960, 113 S.Ct. 425, 121 L.Ed.2d 347 (1992). In Orosco, the defendant did not request a speedy trial until two years after his indictment. Then, he did not pursue the request, but instead moved for dismissal of the indictment. This diminished the strength of his claim. Orosco, 827 S.W.2d at 577. Similarly, Clarke did not pursue his motion for a speedy trial, but moved for dismissal. He set his motions for dismissal for hearing immediately before trial. Further, Clarke's assertion of the right must be viewed in light of his other conduct. See Burgett v. State, 865 S.W.2d 594, 598 (Tex.App.--Fort Worth 1993, pet. ref'd.). Because Clarke filed his motion for a speedy trial on the same day he filed 32 other motions, ² the judge may have believed his assertion was weak.

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