Moreno v. State

Decision Date25 February 1999
Docket NumberNo. 13-97-156-CR,13-97-156-CR
Citation987 S.W.2d 195
PartiesJason Omar MORENO, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Mark Alexander, McAllen, for appellant.

Theodore C. Hake, Asst. Criminal Dist. Atty., Rene Guerra, Dist. & County Atty., Rolando Garza, Asst. Dist. Atty., Edinburg, for appellee.

Before Chief Justice SEERDEN and Justices HINOJOSA and YANEZ.


Opinion by Justice HINOJOSA.

A jury found appellant, Jason Omar Moreno, guilty of the offenses of aggravated kidnapping, aggravated sexual assault, and aggravated robbery and assessed his punishment at: (1) imprisonment for thirty-five years and a $5,000 fine for the aggravated kidnapping, (2) imprisonment for thirty-five years and a $10,000 fine for the aggravated sexual assault, and (3) imprisonment for thirty-five years and a $5,000 fine for the aggravated robbery. The trial court ordered that the three sentences run concurrently. By four points of error, appellant contends he was denied a speedy trial, the trial court erred by failing to instruct the jury in accordance with TEX.CODE CRIM. PROC. ANN. art. 38.23, the search conducted by the police officers was illegal, and the trial court erroneously allowed appellant's oral statement into evidence. We affirm.


By his first point of error, appellant complains the trial court erred in not dismissing his case because he was denied his constitutional right to a speedy trial.

Criminal defendants are entitled to a speedy trial under both federal and state constitutions. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. There is no defined period of time that has been held to be a per se violation of a defendant's right to a speedy trial under the Sixth Amendment. Barker v. Wingo, 407 U.S. 514, 529-30, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Knox v. State, 934 S.W.2d 678, 680 (Tex.Crim.App.1996); Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App.1994). The following balancing test, weighing the conduct of the prosecution and the accused, has been developed by the United States Supreme Court to determine whether an accused has been denied a speedy trial: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his speedy trial right, and (4) prejudice to the defendant from the delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182; Pierce v. State, 921 S.W.2d 291, 293 (Tex.App.--Corpus Christi 1996, no pet.). None of the four factors involved are alone either a necessary or sufficient condition to finding a deprivation of the right to a speedy trial. Barker, 407 U.S. at 533, 92 S.Ct. 2182; Turner v. State, 545 S.W.2d 133, 139 (Tex.Crim.App.1976). They must be considered together in a sensitive balancing process. Turner, 545 S.W.2d at 139.

Although the rights to a speedy trial under the Texas and United States constitutions are independent, Texas courts look to the federal courts in determining state constitutional rights. Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App.1992); State v. Empak, Inc., 889 S.W.2d 618, 621 (Tex.App.--Houston [14th Dist.] 1994, pet. ref'd). Texas uses the Barker balancing test to determine whether a defendant has been denied his state speedy trial right. Harris, 827 S.W.2d at 956; Melendez v. State, 929 S.W.2d 595, 597-98 (Tex.App.--Corpus Christi 1996, no pet.).

The primary burden for assuring cases are promptly brought to trial lies with prosecutors and the courts. Barker, 407 U.S. at 530, 92 S.Ct. 2182. The defendant has the initial burden of showing sufficient delay has occurred to require application of the Barker balancing test. Ramirez v. State, 897 S.W.2d 428, 431 (Tex.App.--El Paso 1995, no pet.); State v. Hernandez, 830 S.W.2d 631, 635 (Tex.App.--San Antonio 1992, no pet.). Upon such a showing, the burden shifts to the State to justify the delay; the defendant then has the burden of showing his diligent assertion of the right to a speedy trial and prejudice resulting from the delay. Ramirez, 897 S.W.2d at 431; Hernandez, 830 S.W.2d at 635.

Because the Barker test presents mixed questions of fact and law, 1 this Court has determined that the first step in conducting a speedy trial review is to establish the circumstances surrounding the bringing of the case to trial (i.e., date the defendant was arrested or charged; date the defendant was tried; the State's excuse for the delay; the defendant's actions in asserting his right whether evidence or witnesses have been lost; whether the defendant has suffered emotionally from the wait). State v. Flores, 951 S.W.2d 134, 138 (Tex.App.--Corpus Christi 1997, no pet.). We conduct our review of the factual determinations with due deference to the trial court's findings. Id. at 139-40. Once the facts have been established, we undertake a de novo review of the application of the balancing test first enunciated in Barker to those facts. Id. Each case is reviewed on its own merits. Knox v. State, 934 S.W.2d 678, 681 (Tex.Crim.App.1996).

1. Length Of The Delay

The facts underlying the "length of the delay" prong are undisputed. We, therefore, review the trial court's application of the law to those facts de novo. Flores, 951 S.W.2d at 138.

The delay in commencement of the trial must be sufficient to be presumptively prejudicial before a review of the remaining three factors is triggered. Barker, 407 U.S. at 531 n. 31, 92 S.Ct. 2182. The length of delay is measured from the time of arrest or formal accusation. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Harris, 827 S.W.2d at 956. Most delays of eight months or longer are considered presumptively unreasonable and prejudicial. Marion, 404 U.S. at 313, 92 S.Ct. 455; Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); Harris, 827 S.W.2d at 956; Pierce, 921 S.W.2d at 294.

On November 16, 1994, an indictment was filed against appellant for the offenses involved in this appeal--aggravated kidnapping, aggravated sexual assault, and aggravated robbery. Appellant's trial commenced on November 7, 1996. We consider a delay of almost two years between indictment and trial to be presumptively unreasonable and prejudicial. Accordingly, we will review the remaining three factors.

2. Reason For The Delay

The State has the initial burden of justifying a lengthy delay. Emery v. State, 881 S.W.2d at 708. If a silent record, or one containing reasons insufficient to excuse the delay, exists, it must be presumed that no valid reason for the delay existed. Turner, 545 S.W.2d at 137-38. In examining the reasons for the delay, different weights should be assigned to different reasons. Barker, 407 U.S. at 531, 92 S.Ct. 2182. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the State. Id. A more neutral reason, such as negligence or overcrowded court dockets, should be weighed less heavily, but nevertheless should be considered because the ultimate responsibility for such circumstances must rest with the State rather than with the defendant. Id. The State's negligence, however innocent, militates against the State. Empak, 889 S.W.2d at 624; Pierce, 921 S.W.2d at 294; Branscum v. State, 750 S.W.2d 892, 895 (Tex.App.--Amarillo 1988, no pet.).

It is helpful to set out a time line of this case to analyze the severe delay experienced by appellant. On November 16, 1994, appellant was formally indicted for the present offenses. On November 28, 1994, appellant was arraigned. From January to June 1995, there were continuing plea negotiations between the prosecutor and appellant's attorney. In August 1995, appellant's attorney was involved in a motorcycle accident and requested a six-month continuance. Appellant was advised that he could have another attorney represent him, but he decided to keep his present counsel. From the beginning of 1996 through March/April 1996, there were continuing discussions between the State and appellant's attorney concerning trial dates. The State tried to set the trial during "Spring Break" because the victim was a teacher. During this time, appellant's counsel was unavailable. There were attempted settings for June and July, but appellant's counsel was in federal court or on vacation. On August 20, 1996, appellant pleaded guilty to the three charges. On September 9, 1996, appellant withdrew his guilty plea. The case was called for trial on October 22, 1996, but was reset by agreement of both parties for October 28. It was called for trial on October 25, 1996, and set for a pretrial motion for October 31. On October 31, appellant's counsel did not appear because he was in federal court, and the case was reset for November 6, 1996. On November 6, 1996, everyone appeared for trial and announced ready. Before trial commenced, the trial court conducted a speedy trial hearing.

Appellant attributes the delays to the "system," i.e., overcrowded trial dockets and conflicts that were not attributable to him. He argues that these delays should be charged against the State. While it is true that overcrowded dockets of trial courts do not excuse trial delays, and the responsibility for the situation rests with the State under Chapman v. Evans, 744 S.W.2d 133, 136 (Tex.Crim.App.1988), the present delay cannot be blamed on the "system."

The State contends the present situation did not result from a backlog of cases in the trial court. The State argues the delay in this case resulted from: (1) unsuccessful, but time-consuming, plea negotiations, (2) a six-month continuance requested by the defense, (3) inability of defense counsel to fit a trial date into his schedule of federal court hearings and vacation, and (4) a guilty plea by appellant.

Because of the dispute, we will apply an abuse of discretion standard of review to this prong. Flores, 951 S.W.2d at 138. Under this standard, questions of law are reviewed de novo while substantial deference is accorded...

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