Martinez Diaz v. State

• Decision Date: 13 May 1987
• Docket Number: No. 3-86-170-CR,3-86-170-CR
• Citation: 730 S.W.2d 853
• Parties: Antonio MARTINEZ DIAZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 853

730 S.W.2d 853

Antonio MARTINEZ DIAZ, Appellant, v. The STATE of Texas, Appellee.

No. 3-86-170-CR.

Court of Appeals of Texas Austin.

May 13, 1987.

Discretionary Review Refused July 22, 1987.

Juan Martinez Gonzales, Beeville, for appellant.

Bill M. Reimer, Co. Atty., New Braunfels, for appellee.

Before POWERS, GAMMAGE and CARROLL, JJ.

PER CURIAM.

A jury found appellant guilty of the misdemeanor offense of driving while intoxicated and assessed his punishment at incarceration for 180 days and a fine of $1,500. Tex.Rev.Civ.Stat.Ann. art. 6701l -1(a)(2)(A), (b), (c) (Supp.1987). We will affirm the judgment of conviction.

In point of error one, appellant maintains he was denied his constitutional and statutory rights to a speedy trial. The relevant background to this point of error is as follows: Appellant was arrested on February 20, 1986, the date of the offense, and was tried 137 days later, on July 7, 1986. He first raised the speedy trial claim in a written motion on the day of trial, and a hearing on that motion was held immediately before trial. At that hearing, the prosecutor stated, "We have been ready to proceed, and we could have gone to trial in this matter at any time since we filed the case [on April 7, 1986]." The prosecutor also stated that the delay was due solely to "the crowded court docket." Under questioning by defense counsel, the prosecutor conceded that up to that point in time he had not interviewed the State's key witnesses, the two arresting police officers, explaining that he had no reason to do so because he had "examined the police offense reports and found them to be totally adequate to go forward to trial with." The prosecutor also admitted that, prior to June 3, 1986 (103 days after appellant's arrest), he had not subpoenaed his witnesses, prepared his direct examination questions, or prepared his jury argument. Appellant himself presented no argument or evidence suggesting any prejudice had come to him because of the four-and-a-half-month delay between his arrest and trial. At the conclusion of the hearing, the trial court overruled appellant's speedy trial motion.

We turn first to appellant's argument as it relates to his statutory right to a speedy trial. Under Tex.Code Cr.P.Ann. art. 32A.02 §§ 1(2) and 2 (Supp.1987), the prosecution was required to be ready for trial within 90 days of appellant's arrest. When the prosecutor declared at the pretrial hearing that he was then ready and had been ready at the times required by the statute, a presumption arose that the prosecution was in compliance with the statute. The burden then shifted to the defense to rebut that presumption. Philen v. State, 683 S.W.2d 440 (Tex.Cr.App.1984); see M. Youngblood, The Texas Speedy Trial Act: A Technical Point of View, 48 Tex.B.J. 462 (1985). The prosecutor's statement that he did not conduct personal witness interviews within 90 days of appellant's arrest did not rebut the presumption of compliance. Waldo v. State, 705 S.W.2d 381 (Tex.App.1986, pet. granted); Brown v. State, 667 S.W.2d 630 (Tex.App.1984), aff'd, 692 S.W.2d 497 (Tex.Cr.App.1985). Nor did his admission that he did not subpoena his witnesses within the 90-day period. Philen v. State, supra. Nor, we hold today, did his admission that he did not prepare his direct-examination questions or jury argument within the 90-day period, since a reasonably able prosecutor can easily prepare such things once a trial date has been set.

We turn next to appellant's argument that he was denied his constitutional right to a speedy trial. A speedy trial is, of course, guaranteed by our state and federal constitutions. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Hull v. State, 699 S.W.2d 220 (Tex.Cr.App.1985); see M. Youngblood, In Addition to the Texas Speedy Trial Act: The Constitutional Guarantee, 49 Tex.B.J. 1216 (1986). In determining whether an accused has been denied this right, a court must consider the unique facts of each case, with particular focus on four factors: (1) the length of the delay; (2) the reason for the delay; (3) the accused's assertion of the right; and (4) prejudice to the accused resulting from the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Hull v. State, supra.

No specific length of delay automatically constitutes a violation of the right to a speedy trial. The delay is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Hull v. State, supra. Here, appellant was arrested February 20, 1986, and was tried July 7, 1986, four and a half months later.

In Barker v. Wingo, supra, the court held:

The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.

407 U.S. at 530, 92 S.Ct. at 2192. Our research reveals that the courts of this and other states have held that delays of the length experienced by appellant are not presumptively prejudicial. See Pete v. State, 501 S.W.2d 683 (Tex.Cr.App.1973); Adams v. State, 434 S.W.2d 866 (Tex.Cr.App.1968); LaFave & Israel, Criminal Procedure § 18.2(b) (1984). Even were we to consider the other factors enunciated in Barker v. Wingo, supra, we would be forced to conclude that, on the facts and arguments before us, those factors weigh against appellant. Point of error one is overruled.

In points of error two, three, and four, appellant complains of comments (emphasized in the passage below) and actions made by the prosecutor during his concluding argument at the guilt/innocence stage. The record reflects that during his own summation, defense counsel used posters with handwritten notes to emphasize testimony, given by two of appellant's friends, that was highly favorable to appellant. When defense counsel concluded his argument, the posters were left on display. The prosecutor then began his final argument:

PROSECUTOR: Ladies and gentlemen, what you see here [referring to the posters] is absolutely meaningless because what you have here is two friends testifying --

[At approximately this point, the prosecutor threw or dropped the posters on the floor beside his table.]

DEFENSE COUNSEL: I'm going to object to that. He's accusing me of perjury or subornation of perjury by throwing those exhibits on the floor and saying that it's not true and I would ask permission for a mistrial at this time.

THE COURT: Mr. Abbott [the bailiff], will you take defense counsel's [posters] and place them back on the seat of the first row bench?

[At this point the bailiff complied with the Court's request.]

THE COURT: Mr. Reimer [the prosecutor], I will instruct you that that gesture constitutes a side-bar remark directed to counsel. Don't repeat it. Do you understand me?

PROSECUTOR: Certainly, Your Honor.

THE COURT: Defense motion for mistrial will be denied. The jury is instructed to disregard that little exchange.

* * *

PROSECUTOR: ... Common sense, ladies and gentlemen. You have a right to use common sense and, when you hear a cock and bull story [referring to defense testimony], ladies and gentlemen, you have a right to disregard it.

DEFENSE COUNSEL: Again, Your Honor, I would object.

PROSECUTOR: And I think you have a right to assume--

THE COURT: Mr. Reimer.

MR. REIMER: --that anybody in here is credible or not credible...