Ramirez v. State

Decision Date03 March 1995
Docket NumberNo. 08-94-00195-CR,08-94-00195-CR
Citation897 S.W.2d 428
PartiesTommy Joe RAMIREZ, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Al W. Schorre, Jr., Dist. Atty. of Midland County, Midland, for State.

Before BARAJAS, C.J. and McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

Tommy Joe Ramirez appeals his conviction for possession of a deadly weapon in a penal institution, enhanced. A jury found Appellant guilty and the court, upon finding both enhancement paragraphs true, assessed his punishment at thirty-five years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

I. Denial of Right to a Speedy Trial

In his first point of error, Appellant contends that he was denied his right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Texas Constitution. 1 The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment. Barker v. Wingo, 407 U.S. at 515, 92 S.Ct. at 2184, 33 L.Ed.2d 101. The same right is provided to an accused under the Texas Constitution. TEX. CONST. art. I, § 10; Hull v. State, 699 S.W.2d 220, 221 (Tex.Crim.App.1985).

Appellant was arrested for this offense on April 15, 1993, and formally charged by an indictment filed on May 21, 1993. The trial court first set Appellant's case, along with twenty-nine other criminal cases, for jury trial on September 27, 1993. According to the court's setting notice, the cases were to be called in sequential order. Appellant's case, which was twenty-fifth on that list, was apparently not reached during that trial week. Consequently, his case was re-set for trial as the twenty-second case on November 8, 1993. Again, his case was not reached. On January 31, 1994, Appellant, acting pro se even though he was represented by appointed counsel, filed a document entitled "Motion for Speedy Trial." After a brief hearing conducted on March 17, 1994, the trial court set Appellant's case for trial to begin on March 28, 1994. Appellant claims in his brief that trial began on April 10, 1994. However, our review of the record reveals that trial began on March 28, 1994.

A. Presentation of Speedy Trial Claim at Trial

Before we are required to analyze the asserted denial of Appellant's right to a speedy trial, the record must reflect that Appellant raised his speedy trial claim in the trial court. See Mulder v. State, 707 S.W.2d 908, 914-15 (Tex.Crim.App.1986) (defendant's failure to file motion to dismiss on speedy trial grounds in trial court presented nothing for review on appeal); Serna v. State, 882 S.W.2d 885, 889-90 (Tex.App.--Corpus Christi 1994, no pet.) (the appellant has the burden to establish that he asserted the right to a speedy trial in the trial court; asserting the right for the first time on appeal waives the issue). In this case, Appellant presented his claim to the trial court in a pro se motion for speedy trial which the court considered during pretrial hearings.

B. Barker v. Wingo Analysis

The framework for Sixth Amendment speedy trial analysis was set forth by the United States Supreme Court in Barker v. Wingo. Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App.1994). No definite period of time has been held to be a per se violation of a defendant's right to a speedy trial; alleged violations are considered on a case by case basis. Emery, 881 S.W.2d at 708, citing Barker v. Wingo, 407 U.S. at 529-30, 92 S.Ct. at 2191-92. When engaging in the Barker v. Wingo balancing test, the reviewing court must consider four factors:

(1) the length of the delay;

(2) the reason for the delay;

(3) whether the defendant asserted his speedy trial rights; and

(4) any resulting prejudice to the defendant.

Emery, 881 S.W.2d at 708, citing Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2191. None of the four factors alone is a necessary or sufficient condition to finding a deprivation of the right to a speedy trial. See Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. at 2193.

C. Burden of Proof

The defendant has the burden of first showing that sufficient delay has occurred to require application of the Barker v. Wingo balancing test. 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. Id. at 635.

D. Application of the Factors
1. Length of the Delay

The length of the delay is measured from the time the defendant is arrested or formally accused. Harris, 827 S.W.2d at 956, citing United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). To some extent, the length of the delay is a triggering mechanism, so that a speedy trial claim will not be heard until passage of a period of time that is, prima facie, unreasonable under the existing circumstances. Harris, 827 S.W.2d at 956, citing Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192. There must be enough of a delay to be presumptively prejudicial to the defendant before it becomes necessary to consider the other three factors in the Barker analysis. Emery, 881 S.W.2d at 708; Lazcano v. State, 836 S.W.2d 654, 657 (Tex.App.--El Paso 1992, pet. ref'd).

Appellant's case was not tried until eleven months after his arrest. The case was not complicated and the State's case-in-chief consisted of only two witnesses. Even though there is no evidence that the delay was deliberately caused by the State, we find the delay sufficient to require us to consider the remaining factors.

2. Reason for the Delay

The State has the initial burden of justifying a lengthy delay. Emery, 881 S.W.2d at 708; Turner v. State, 545 S.W.2d 133, 137-38 (Tex.Crim.App.1976). In light of a silent record or one containing reasons insufficient to excuse the delay, it must be presumed that no valid reason for 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. Emery, 881 S.W.2d at 708. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the State. Emery, 881 S.W.2d at 708. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily, but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the State rather than with the defendant. Emery, 881 S.W.2d at 708.

The State did not put on any evidence at the pretrial hearing for the purpose of explaining the delay. Appellant would have us hold this failure to directly explain the reason for the delay at the hearing against the State. While it might be the better practice for the State to offer evidence and provide a direct explanation, we do not construe Barker v. Wingo or Turner as requiring the State to do so in every case. The State has met its burden of providing a reason for the delay if the record reflects sufficient reasons. Furthermore, when we consider the manner in which Appellant presented his claim to the trial court, we find it inappropriate to hold the failure to put on evidence at the hearing against the State. In his written motion, Appellant specifically requested that the trial court immediately set his case for trial or dismiss the indictment. Thus, he expressly sought dismissal of the indictment only if the court did not grant his request for an immediate trial. The trial court initially entered an order refusing to consider Appellant's pro se motion on the ground he was represented by appointed counsel. Our review of the record reveals that the pretrial hearing was not called for the purpose of considering the speedy trial motion, but rather addressed Appellant's complaints about his trial counsel's lack of communication with him. When the court advised Appellant that he would appoint a different attorney to represent him, Appellant asked the trial judge to reconsider his motion for speedy trial and allow trial counsel to remain on his case. In response, the judge stated he would provide Appellant with a trial the next week and allow trial counsel to remain on the case, but he would appoint an additional attorney to represent Appellant along with trial counsel. Appellant presented no evidence on his motion, and in fact, seemed satisfied with the court's ruling. Since the trial court granted Appellant's request and set the case for immediate trial, it appears to us that the State had no opportunity or obligation to explain the delay.

On appeal, the State argues that the delay was due to: (1) a crowded criminal trial docket; (2) miscommunication or lack of communication between Appellant and trial counsel; and (3) plea negotiations. The evidence supports only the first proffered explanation. Appellant's case was first set for trial less than four months after his arrest, but was not reached on two occasions due to the large volume of cases on the trial docket. Although there is some evidence in the record that Appellant perceived that trial counsel had not adequately communicated with him, there is no evidence from which we can infer that any problem between Appellant and counsel contributed to the delay. Finally, the State argues that ongoing plea negotiations contributed to the delay. With regard to those negotiations, we have found only one small reference in the record. In a pretrial hearing held on March 23, 1994, Appellant's trial counsel stated to the trial court that the plea agreement that had been previously announced had not been consummated. While this is some evidence that plea negotiations were ongoing, there is no evidence that the negotiations contributed to the delay. Thus, we find that the record supports only...

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