McCarty v. State

• Decision Date: 11 July 1973
• Docket Number: No. 46146,46146
• Citation: 498 S.W.2d 212
• Parties: Aubrey Langston McCARTY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 212

498 S.W.2d 212

Aubrey Langston McCARTY, Appellant, v. The STATE of Texas, Appellee.

No. 46146.

Court of Criminal Appeals of Texas.

July 11, 1973.

Rehearing Denied Sept. 7, 1973.

Jack R. Bailey and Paul R. Lawrence, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough, Ronald G. Woods, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction is for passing a forged instrument; the punishment, enhanced under the provisions of Article 63, Vernon's Ann.P.C., life imprisonment.

The first ground of error asserts the appellant was deprived of the right to a speedy trial.

The offense is alleged to have occurred on June 2, 1967. On July 8, 1967, the appellant was arrested in Knox County, Tennessee for an offense committed in that state. He was tried, convicted and imprisoned in Tennessee. The record does not clearly show when the appellant was accused of the offense in this case or when a detainer was placed on him by the authorities of this State. The instant indictment was returned December 9, 1968. The appellant was transferred on May 13, 1970, from the Tennessee prison system to a federal prison to serve time for a Federal offense. The appellant was returned to Harris County on June 14, 1971, and an attorney appointed to represent him. A pretrial hearing was had on June 12, 1971, and after another hearing on July 21, 1971, his trial before a jury was commenced on the next day, resulting in the conviction from which he appeals.

The right to a speedy trial in a State case is guaranteed by the Sixth Amendment to the Constitution of the United States as applied through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). The same rights are assured by Article 1, Section 10 of the Constitution of the State of Texas, Vernon's Ann.St. and Article 1.05, Vernon's Ann.C.C.P.

A 'balancing test' to determine whether an accused has been denied the right to a speedy trial under the United States constitutional provision has been formulated by the Supreme Court in the recent case of Barker v. Wingo,407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The guidelines set out by the Supreme Court which must be applied to each individual case require consideration of (1) the length of delay; (2) the reason for the delay; (3) defendant's assertion of his right, and (4) the prejudice to the defendant. We will consider each of these criteria as applied to the case at bar.

LENGTH OF DELAY

' 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. Nevertheless, because of the imprecision of the right to speedy trial, the right of delay that will provoke such an inquiry is necessarily dependent upon the particular circumstances of the case.' Barker v. Wingo, 92 S.Ct. 2182 at page 2192.

In determining whether a speedy trial has been denied, the length of delay is measured from the time the defendant was accused. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In this case the appellant was arrested in another state for another offense. As already noted, the exact time when the appellant was accused and the exact time which this State's detainer was requested are not clearly shown in this record. The time between the return of the indictment and the trial was some two years and seven months. Such a delay is not, per se, a deprivation of the appellant's right to a speedy trial, but is fact requiring further consideration of the appellant's claim. Barker v. Wingo, supra, and see Courtney v. State,472 S.W.2d 151 (Tex.Cr.App.1971); Harris v. State, 489 S.W.2d 303 (Tex.Cr.App.1973); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973).

REASON FOR THE DELAY

In considering the reason for the delay it is said by the Supreme Court that different weight should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense would be weighed heavily against the State. A more neutral reason such as negligence, or overcrowded courts, should be weighed less heavily, but nevertheless should be considered since the ultimate responsibility of such circumstances must rest with the State rather than the defendant. Barker v. Wingo, supra; Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

The reason for the delay in this case is not well developed in the record. The appellant was incarcerated for almost the entire period of time either by Tennessee State authorities or by Federal authorities. The State had made some inquiries and some efforts toward returning the appellant to Texas for trial while he was imprisoned in Tennessee. Before these efforts were consummated he was transferred to the Federal prison. During this time the appellant was bombarding State and Federal Courts with various motions to gain a dismissal of his case rather than a speedy trial. There is no showing that the State intentionally delayed appellant's trial at any stage. There is little to show that the State was negligent in returning the appellant for trial under the circumstances.

APPELLANT'S ASSERTION OF HIS RIGHTS

The failure of the defendant to assert his right would make it difficult for a defendant to prove that he was denied a speedy trial. The strength of his efforts must be considered along with the length of the delay, the reason for the delay, and particularly by the personal prejudice which is occasioned by the delay. The defendant's assertion of, or failure to assert his right to a speedy trial is but one of the factors to be considered in the overall inquiry into the deprivation of the right. Barker v. Wingo, supra.

The appellant's first request for a speedy trial was received by the Harris County District Attorney's Office on December 26, 1969.

In considering the numerous motions filed by the appellant in the various courts, it is fair to say his prime object was not to gain a speedy trial, but was an attempt to have the charge against him dismissed. Although these various motions served as notice to the prosecutors, they somewhat weaken the appellant's present claim that he purposefully pursued and asserted his right to a speedy trial at all times. ¹

PREJUDICE TO THE DEFENDANT

The three interests to be considered in determining prejudice to the defendant are: (1) prevention of oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Barker v. Wingo, supra; see also, United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627; Smith v. Hooey, supra; Klopfer v. North Carolina, supra; Harris v. State,supra, and McKinney v. State, supra.

During almost the entire time in question, the appellant was in custody under convictions in other jurisdictions. Under these circumstances we are therefore mainly concerned with whether or not appellant's ability to defend himself was prejudiced by the delay. Harris v. State, supra.

Although a showing of 'actual prejudice' is not required in Texas, the burden is on the accused to make some showing of prejudice which was caused by the delay of his trial. Harris v. State, supra, and Courtney v. State, supra.

The appellant makes a rather weak claim that he was deprived of an alibi witness and certain character witnesses. ²

When non-availability of witnesses is the basis of the alleged prejudice, an appellant must show that the witnesses were unavailable at the time he was tried; that their testimony may be relevant and material to his defense, and that due diligence was exercised in an attempt to locate such witnesses at the time he was tried. This would constitute some showing of prejudice. Harris v. State, supra.

The appellant in this case has failed to make such proof. No subpoenas were issued and no other efforts were shown to have been made to secure the trial attendance of the alleged missing witnesses. Appellant made no motion for continuance in order to locate these witnesses as was done in Dickey v. Florida, supra. The appellant made no request for investigative funds which are provided for in Article 26.05 § 1(d), V.A.C.C.P. We conclude that the appellant has not made 'some showing of prejudice.'

It is also appropriate to consider the strength of the State's case. The State's proof in this case consisted of close-up photographs of the appellant and the checks which were allegedly passed, which were shown to have been made at the time the checks were passed, the checks themselves, and the testimony of the witnesses to whom the checks were passed. We must view the appellant's claim that he was deprived of an alibi witness in light of such clear and overwhelming evidence.

Considering all of the factors, including the strength of the State's case, we find that the appellant was not prejudiced by the delay in his ability to defend himself. Barker v. Wingo, supra; Harris v. State, supra; McKinney v. State, supra, and Courtney v. State, supra. See State v. Bishop, 493 S.W.2d 81 (Tenn.S.Ct.1973).

Applying the balancing test of Barker v. Wingo, supra, we find no denial of appellant's right to a speedy trial, and overrule his contention.

The next complaint is that: 'The habitual criminal statute was unconstitutionally applied to appellant, as it deprived the appellant of the equal protection under the laws as guaranteed by the Fourteenth Amendment.'

The appellant was charged as a recidivist and the primary offense charged has a comparatively light maximum penalty. It is appellant's contention that he was not equally treated because his bargaining...