State v. Davis

Decision Date12 October 2017
Docket NumberNO. 03-15-00620-CR,03-15-00620-CR
Parties The STATE of Texas, Appellant v. Dennis DAVIS, Appellee
CourtTexas Court of Appeals

Ms. Linda Icenhauer-Ramirez, Attorney at Law, 1103 Nueces, Austin, TX 78701, for Appellee.

Ms. Kathryn A. Scales, Assistant District Attorney, Travis County, Texas, Mr. M. Scott Taliaferro, Assistant District Attorney, Director, Appellate Division, P. O. Box 1748, Austin, TX 78767, for Appellant.

Before Chief Justice Rose, Justices Goodwin and Bourland


Jeff Rose, Chief JusticeThe State of Texas filed this appeal contending that the district court abused its discretion by setting aside the indictment against Dennis Davis for violation of his Sixth Amendment right to a speedy trial. The State contends that the court’s order dismissing the indictment was not justified by a properly conducted analysis under Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We will reverse the district court’s order.


Our speedy-trial analysis occurs in the context of a long procedural history encompassing Davis’s indictment, jury trial resulting in a judgment of his guilt, reversal by the court of appeals, review by the Court of Criminal Appeals, remand to the district court, and his indictment being set aside. The facts of the underlying case are set forth in this Court’s 2013 opinion:

Natalie Antonetti was assaulted in her Austin apartment in the early morning hours of Sunday, October 13, 1985. There was no sign of forced entry, and nothing was stolen. Antonetti was not sexually assaulted and had no defensive wounds

. The blunt force trauma to her head, which the medical examiner found consistent with having been attacked with a club or small bat, caused skull fractures, brain contusions, and a coma from which Antonetti never recovered. Antonetti died after the withdrawal of life support. The crime remained unsolved after the death of Austin Police Department Sergeant Edward Balagia, a homicide detective who served as lead investigator and conducted most of the interviews and evidence collection.

The unsolved "cold case" was reopened in 2007 after a call to a homicide tip line from Rebecca Davis, the wife of appellant Dennis Davis. Rebecca told police that in 1991 after a few drinks, Davis cried and said he had "sinned against God and man," which she suspected was a reference to the unsolved murder of Davis’s former girlfriend, Antonetti.

Davis was charged with Antonetti’s murder. Davis’s wife Rebecca recanted her story and argued unsuccessfully that Davis’s statement to her was shielded by marital privilege. At trial, there was no physical or forensic proof connecting Davis to the crime; rather, his prosecution hinged on circumstantial evidence and testimony from witnesses, many of whom had not been contacted during the investigation back in the 1980s. The circumstantial evidence about Davis included Davis’s relationship and last interaction with Antonetti, his arrival at the scene after the assault, his statements after the assault, his alibi, his ownership of a car similar to one seen in the parking lot of the apartments on the morning of the assault, and other acts of aggression in the years since Antonetti’s assault. The jury also considered certain statements and a 911 call from Donn Chelli, Antonetti’s neighbor at the time of the assault.

Davis v. State , 413 S.W.3d 816, 820 (Tex. App.—Austin 2013, pet. ref'd). The jury convicted Davis in 2011 for Antonetti’s murder, and the court sentenced him to thirty-six years' imprisonment. Id. at 819. The jury was not presented with evidence of a potential third-party perpetrator, including evidence of Antonetti’s neighbor’s identification of a different man from a photographic lineup as the person that he had seen holding a club or small bat while looking into the neighbor’s apartment on the morning of Antonetti’s assault. See id. at 827. This Court determined that Davis received ineffective assistance of counsel, reversed his conviction, and remanded this cause for a new trial. Id. at 838. The Texas Court of Criminal Appeals refused the State’s petition for discretionary review. See In re Davis , No. PD-1520-13, 2014 Tex. Crim. App. LEXIS 183, at *1 (Tex. Crim. App. Feb. 5, 2014). This Court issued our mandate in Davis’s appeal on March 6, 2014.

On March 28, 2014, after remand, the district court appointed new counsel for Davis. Defense counsel filed a "Motion for Expedited DNA Analysis" on July 15, 2014, and the district court signed an order granting that motion the next day. Davis filed a "Motion to Dismiss for Want of a Speedy Trial" on October 1, 2014, which the district court denied at a hearing on October 13, 2014. Davis then filed a "Motion to Set Aside Indictment for Failure to Afford Constitutional Right to Speedy Trial" on November 19, 2014. The district court considered the motion to set aside the indictment at a hearing held November 25, 2014, and kept the motion under advisement.

At a status-review hearing on December 1, 2014, the State advised the district court of its intent to file a motion for continuance of the trial scheduled for December 8, 2014, seeking the completion of DNA testing. The district court stated that it was inclined to grant the State’s continuance because the parties were "all better served by having the DNA results." Davis agreed "that [wa]s the best course of action," and defense counsel added that Davis was not waiving his speedy-trial right. But Davis reemphasized the importance of the DNA testing and his willingness to wait for the completion of such testing. The district court then stated its intent to reschedule the trial for May 4, 2015.

When the State filed its motion for continuance on December 4, 2014, it also filed a motion to dismiss the criminal action against Davis "pending further investigation." That same day, the district court held a docket call and pretrial hearing, after which it denied the State’s motion to dismiss the criminal action against Davis, signed an order granting the State’s motion for continuance and resetting the trial for May 4, 2015, and kept under advisement Davis’s motion to set aside the indictment.

Between January and May of 2015, the district court signed several orders concerning the items to be subjected to DNA testing, comparison samples or profiles of certain suspects to be used in the testing, and payment arrangements for the testing. Cellmark Forensics provided the final results of its DNA testing on May 12, 2015. On July 14, 2015, Davis filed an amended "Motion to Set Aside Indictment for Failure to Afford Constitutional Right to Speedy Trial," and the State filed a response on August 4, 2015. The district court did not hold a hearing on Davis’s motion. On September 9, 2015, the district court signed an "Order Setting Aside Indictment for Failure to Afford Constitutional Right to Speedy Trial," issuing findings of fact and conclusions of law in support of its ruling. The State then filed this appeal from the order setting aside Davis’s indictment.


The State contends that the district court abused its discretion by granting Davis’s motion to dismiss the indictment for violation of his right to a speedy trial. See U.S. Const. amend. VI. The State raises four issues in this appeal that it has briefed together, collectively contending that the court erred in its application of the factors considered in determining the speedy-trial issue under the United States Supreme Court’s Barker case. Consideration of the speedy-trial issue in this appeal requires close review of the events in this case. See Emery v. State , 881 S.W.2d 702, 707 (Tex. Crim. App. 1994) (setting forth procedural history in some detail to resolve speedy-trial issue). The following is a chronology of significant events in this case:

10/13/85 assault leading to death of Natalie Antonetti
07/07/06 case reopened with "outcry" call to homicide tip line from Davis’s estranged wife
06/30/09 indictment returned charging Davis with Antonetti’s murder
07/02/09 Davis arrested
07/28/10 Davis released following bail reduction from $1,000,000 to $750,000
04/11/11 jury trial begins
04/15/11 jury renders verdict of guilty
04/18/11 district court signs judgment of conviction and sentences Davis to 36 years in prison
Davis is remanded to custody
07/08/11 Davis files notice of appeal
02/01/13 witness Donn Chelli, neighbor of the victim, dies
08/30/13 Third Court of Appeals reverses Davis’s conviction and remands case for new trial
10/07/13 Third Court of Appeals overrules State’s motion for rehearing
02/05/14 Texas Court of Criminal Appeals refuses State’s petition for discretionary review
03/06/14 Third Court of Appeals issues its mandate
03/28/14 district court appoints new trial counsel for Davis after remand
04/24/14 Davis released on bond
07/15/14 Davis’s new counsel moves for expedited DNA analysis
07/16/14 district court signs order for expedited DNA analysis
10/01/14 Davis files motion to dismiss for speedy-trial violation
10/13/14 district court denies Davis’s motion to dismiss at hearing
11/19/14 Davis files motion to set aside indictment for speedy-trial violation
11/25/14 district court holds pretrial hearing
State presents motion to dismiss "pending further investigation"
district court takes the State’s motion under advisement
Davis argues his motion to set aside indictment for speedy-trial violation
district court takes Davis’s motion under advisement
12/01/14 district court holds status-review hearing
State advises of intent to seek continuance for completion of DNA testing
district court states its intent to grant continuance and reset trial
12/04/14 district court holds pretrial hearing
State files motion to dismiss "pending further investigation," which district court denies
State files motion for continuance, which district court grants
Davis reasserts his motion to set aside indictment for speedy-trial violationdistrict court takes Davis’s motion under advisement
07/14/15 Davis

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