Shaw v. State

• Decision Date: 15 October 2003
• Docket Number: No. 1539-02.,1539-02.
• Citation: 117 S.W.3d 883
• Parties: James William SHAW, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

117 S.W.3d 883

James William SHAW, Appellant, v. The STATE of Texas.

No. 1539-02.

Court of Criminal Appeals of Texas.

October 15, 2003.

Joseph L. Lanza, Houston, for appellant.

Betty Marshall, Assist. St. Atty., Matthew Paul, State's Attorney, Austin, for state.

OPINION

HOLCOMB, J., delivered the opinion of the unanimous Court.

The court of appeals held that the trial court erred in denying appellant's motion to dismiss for want of a speedy trial. Shaw v. State, No. 06-01-00130-CR, 2002 WL 1300044 (Tex.App.-Texarkana 2002) (unpublished). We reverse.

The Relevant Facts

On December 10, 1997, a Waller County grand jury indicted appellant for aggravated sexual assault of a child younger than fourteen years. See Tex. Pen.Code § 22.021. On March 18, 1998, the State brought appellant to trial under the indictment, but that trial ended in a hung jury. The trial court set the case for re-trial on August 24, 1998, but the case was not reached on that date, and numerous re-sets followed.

On August 29, 2000, appellant, citing both the Sixth Amendment to the United States Constitution and Article I, § 10, of the Texas Constitution, filed a written motion to dismiss the indictment for want of a speedy trial. In his motion, appellant, who had been out on bond since being indicted, argued that the delay had nevertheless "prejudiced [him] by causing him mental anguish." On February 23, 2001, just before appellant's re-trial commenced, he urged his motion to the trial court for the first time, and the trial court held a hearing thereon. The hearing, at which neither appellant nor the State offered any evidence, was brief and proceeded in relevant part as follows:

DEFENSE COUNSEL [Gerald Fry]: I would submit to the court that there has been cases tried in this court that are not as old as my case; and that my case should have had preferential treatment and tried earlier. The defendant being on bond and under the subject of having a trial, the mental pressure and so forth, and him trying to schedule his life to make court appearances has been horrendous; and we would ask the court to dismiss the case for want of a speedy trial.

THE COURT: Anything else?

THE STATE [Doug Pettit]: Judge, the State would respond in that there are numerous continuances in the file from the date of the last trial setting until today filed by the defendant. It is an old case, but it's not the State's fault that this case has not gone to trial. The dockets are crowded; the motions for continuance have been granted. We are ready to go to trial. We've been ready for trial. It's just the cases have not been reached. Last time this case was set for trial, it was agreed by Mr. Fry to pass the case because one of his witnesses was in the hospital. Is that correct Gerald? The defendant's mother was in the hospital.

DEFENSE COUNSEL: Not this last time. One time I think there was, yeah.

THE STATE: I don't think it's on the State. It's not the fault of the State that this case is not going forward. The motions for continuance have been filed by the defendant.

THE COURT: Y'all tried it in '98. I believe there was a mistrial.

THE STATE: Yes.

* * *

THE COURT: You've alleged that there has been some motions for continuance by the defendant.

THE STATE: Yes, Judge.

THE COURT: There may have been. I'm not seeing them.... Show me some motions for continuance. Your motion, I think it's completely discretionary. I really don't think it's good, but if there's any motions for continuance after '98, the docket sheet doesn't reflect that there was an agreement. It just says it was set from April the 10th [2000] to June 26 [2000] at 2:00 p.m. and July 10 [2000] at 9:00 a.m. Then it doesn't say. There is no other entry on the docket sheet until today that I'm seeing. Didn't y'all have it set for January the 8th?

THE STATE: That's the date when I originally got on the case, and Mr. Fry's client's mother was in the hospital.

DEFENSE COUNSEL: We asked that it be tried the 19th or later because she was going to be out of town when it was set that day.... We asked 19th or later because she was out of town. Then we got today's date, Your Honor.

* * *

DEFENSE COUNSEL: I know I filed a motion for continuance. I don't know if I filed one or two at different times during the years. I don't know when.

THE STATE: There has been one motion for continuance filed, Judge.

DEFENSE COUNSEL: I would agree that there has been at least one motion for continuance filed.

THE COURT: When was that filed?

DEFENSE COUNSEL: I know I had a case up in Dallas. I'm pretty sure I filed a motion for continuance for that.

THE COURT: Well, did you urge this motion to dismiss back in these other 2000 settings? You filed it in October [sic]....

DEFENSE COUNSEL: I would agree with the prosecutor and have a ruling on it at the time it was set for trial.

* * *

THE STATE: Judge, I have a motion for continuance when the case was set for trial August 24, 1998, after the first trial. It was filed 8/21/98.

THE COURT: There is Mr.—

THE STATE: Mr. Fry's motion for continuance. That was granted. Doesn't say it was granted. But, it was granted in August of '98.

THE COURT: Does anybody have any resets, any copies of that?

THE STATE: I notice a reset signed by Judge Beck, Mr. Shaw, Mr. Fry setting the case from January 4, 1999, for pre-trial and then jury trial January the 11th, 1999.

THE COURT: I'm still with the motion to dismiss.

THE CLERK: The reset should be in the order that they were—

THE COURT: They are not at the back of the file. Okay. Here's a reset. I know I'm going for April. It was reset for July for jury trial. There ought to be a reset after October. I'm going to deny your motion to suppress under the Speedy Trial Act [sic] at this time.

The jury later found appellant guilty and assessed his punishment at imprisonment for eight years, probated for five years.

On direct appeal, appellant brought five points of error. He argued in his first point that the trial court erred in denying his motion to dismiss. In particular, appellant argued that (1) he filed only one motion for continuance during the interval between his two trials; (2) he "asserted his right to a speedy trial by filing a motion to dismiss"; (3) he "had to wait those many months for the second trial, with the attendant worry and anxiety"; (4) "overcrowded dockets do not excuse trial delays"; (5) "[t]he delay in this case is so unreasonable that it alone is sufficient to find that the trial judge should have dismissed this case"; and (6) "due to the delay in reaching the second trial, a presumption arises that the defense was prejudiced."

The court of appeals sustained appellant's first point of error, reversed the trial court's judgment, and rendered a judgment of acquittal. Shaw v. State, No. 06-01-00130-CR, supra. The court of appeals explained its holding thusly:

Even though Shaw failed to show prejudice, no single Barker factor¹ is a necessary or sufficient condition to the finding of a speedy trial violation. We consider the related Barker factors, together with such other circumstances as may be relevant. In this case, the thirty-five-month delay from the first trial to the second was unreasonable and excessive. Although the delay may not have been intentional, the State offered no tenable reason for it. By moving to dismiss the indictment, Shaw asserted his right to a speedy trial. The trial court erred in denying this motion. We sustain Shaw's first point of error.

Id., slip op. at 12 (citations and some punctuation omitted).

We subsequently granted the State's petition for discretionary review to determine whether the court of appeals erred. See Tex.R.App. Proc. 66.3(c).

Analysis

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial."² This right was made applicable to state criminal prosecutions by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). In addition, Article I, § 10, of the Texas Constitution provides that "[i]n all criminal prosecutions the accused shall have a speedy ... trial." If a violation of the right to a speedy trial is established, the proper remedy is dismissal of the prosecution with prejudice. Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Hull v. State, 699 S.W.2d 220, 224 (Tex.Crim.App.1985).

In determining whether a criminal defendant has been denied his federal or state constitutional right to a speedy trial, a court must use a balancing test in which the conduct of both the State and the defendant are weighed. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); 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). The factors to be weighed in the balance include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant's assertion of his speedy trial right, and the prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. 2182. No single factor is necessary or sufficient to establish a violation of the defendant's right to a speedy trial. Id. at 533, 92 S.Ct. 2182.

An appellate court reviewing a trial court's ruling on a motion to dismiss for want of a speedy trial must do so in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). And, the appellate court must uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App.1999).

The Length of the Delay. The first factor, the length of the delay, is measured from the time the defendant is arrested or formally accused. United...