State v. Flores

Decision Date26 June 1997
Docket NumberNo. 13-96-271-CR,13-96-271-CR
Citation951 S.W.2d 134
PartiesThe STATE of Texas, Appellant, v. Mario Alberto FLORES, Appellee.
CourtTexas Court of Appeals

Ernesto Gonzales, Harlingen, for Appellee.

John A. Olson, Asst. County & District Attorney, Luis V. Saenz, Yolanda De Leon, District Attorney, Brownsville, for State.

Before DORSEY, FEDERICO G. HINOJOSA, Jr. and CHAVEZ, JJ.

OPINION

CHAVEZ, Justice.

The State appeals from the trial court's order dismissing charges against appellee Mario Alberto Flores for failure to afford him a speedy trial. Flores was arrested on December 21, 1991 for involuntary manslaughter. 1 He was released on a $20,000 bond shortly after his arrest. Flores was not indicted until December 13, 1995. Flores moved to dismiss for failure to afford a speedy trial on January 5, 1996. A hearing on the motion was held on March 28, 1996, and the motion was granted on May 5, 1996. In a single point of error, the State argues that the trial court abused its discretion in ordering the case dismissed. We affirm the judgment of the trial court.

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. 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 v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972).

Although the constitutional speedy trial rights of Texas and the United States 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.), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992); State v. Empak, Inc., 889 S.W.2d 618, 621 (Tex.App.--Houston [14th Dist.] 1994, pet. ref'd). Texas uses the Barker test to determine whether a defendant has been denied his state speedy trial right. Harris, 827 S.W.2d at 956; Clarke v. State, 928 S.W.2d 709, 713 (Tex.App.--Fort Worth 1996, pet. ref'd).

The primary burden for assuring that cases are promptly brought to trial lies with prosecutors and the courts. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. The defendant has the burden of first showing that 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, and 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.

Standard of Review

A review of speedy trial cases in Texas indicates some confusion regarding the proper standard of review. Some courts have indicated willingness to reverse only if the trial court has abused its discretion, 2 while others describe their review as de novo. 3 For the reasons expressed below, we conclude that the proper method of review is to separate the speedy trial issue into a factual component and a legal component, and apply an abuse of discretion standard of review to the factual component while reviewing the legal component de novo.

The speedy trial issue presents a mixed question of law and fact. Clarke v. State, 928 S.W.2d 709, 724 (Tex.App.--Texarkana 1996, pet ref'd) (Livingston, J., concurring). The United States Supreme Court has frequently discussed the components of mixed questions and the appropriate standard of review in cases concerning the constitutional rights of criminal defendants. "Factual issues" means "basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators." Thompson v. Keohane, 516 U.S. 99, ----, 116 S.Ct. 457, 464, 133 L.Ed.2d 383 (1995) (quoting Townsend v. Sain, 372 U.S. 293, 310 n. 6, 83 S.Ct. 745, 756 n. 6, 9 L.Ed.2d 770 (1963)). Some issues go beyond the scope of "basic, primary, or historical facts," but nevertheless are considered "fact" issues because the trial court is better positioned to decide these issues. Thompson at ----, 116 S.Ct. at 465. Examples include jury bias and competency to stand trial, which depend heavily on the trial court's evaluation of the demeanor and credibility of the individuals in the trial courtroom. Id.

Other issues are mixed issues, which contain a factual element and a legal element. For example, under the area of law emerging from Miranda v. Arizona 4 and dealing with custodial interrogations, determining whether a suspect is "in custody" requires two discrete inquiries: 1) what were the circumstances surrounding the interrogation, and 2) given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Id. Federal courts review the state trial court's findings of fact regarding the circumstances surrounding the interrogation in a deferential manner, presuming them to be correct. 28 U.S.C.A. § 2254(d) (West 1992). After the facts have been established, the second inquiry calls for application of the controlling legal standard to the historical facts. Id.

The speedy trial analysis is analogous to the two stage analysis above. First, the circumstances surrounding the bringing of the case to trial must be established (i.e., when was the defendant arrested or charged, when tried, what is the State's excuse for the delay, what did the defendant do to try to assert his right, have witnesses or evidence been lost, has the defendant suffered emotionally from the wait ... ). After these facts have been established, then the legal standard of Barker must be applied to these historical facts.

The Thompson court held that "once the historical facts are resolved" de novo review of the application of the legal principle to those facts was appropriate. Thompson, 516 U.S. at ---- - ----, 116 S.Ct. at 465-67. Thompson does not expressly say what sort of review, if any, is appropriate for the "historical facts" component. However, under section 2254(d)(8), "pertinent to a review of the sufficiency of the evidence," the federal appellate court does not apply the presumption favoring a state trial court's fact finding when "such factual determination is not fairly supported by the record." 28 U.S.C.A. § 2254(d)(8) (West 1992). We consider section 2254(d)'s limited presumption to be roughly analogous to the deference Texas appellate courts show to the decisions on factual issues by Texas trial courts.

The Court of Criminal Appeals recognized the distinction between the factual component and legal component presented by many of the constitutional rights of criminal defendants in Higbie v. State, 780 S.W.2d 228 (Tex.Crim.App.1989). 5 In Higbie, the police had set up a roadblock at a time and location specifically designed to catch drunk drivers. The roadblock was challenged as an unreasonable search under the fourth amendment. U.S. CONST. amend. IV. The court said that the "probable cause analysis" used in Fourth Amendment cases first entails a review of the facts, and then those facts are applied to the law of search and seizure. 6 Higbie at 231.

The recent opinions applying only de novo review rely on Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App.1994). The relevant language in Emery states:

The reviewing court must consider four factors: the length of the delay, the reasons for the delay, whether the defendant asserted his speedy trial rights, and any resulting prejudice to the defendant.

This language does nothing more than reiterate the test set out in Barker. The court's statement that this test is to be applied by "the reviewing court" provides some subtle indication that a de novo analysis is necessary for the application of the legal test stated in Barker. However, in order to apply the Barker test, first the facts must be established. We do not agree that there should be no review of the underlying factual determinations, or that review of the underlying factual determinations should be conducted without deference to the trial court.

The majority opinion in Holmes v. State said in a footnote "we agree in principle ... that we should review the trial court's decision 7 rather than making a de novo review because this is a fact-driven question." Holmes v. State, 938 S.W.2d 488, 490 n. 1 (Tex.App.--Texarkana 1996, no pet.) But the court goes on to say that it feels compelled by Emery to conduct de novo review, despite its feeling that fact issues deserve deferential review. Id. We think the solution to the dilemma faced by the Texarkana court is to conduct deferential review of the underlying facts, and de novo review of the application of the Barker test to those facts.

We also consider the application of an abuse of discretion review only to be inadequate. For example, in State v. Empak Inc., the First Court of Appeals in Houston said "a court deciding speedy trial issues reviews with deference the trial court's determination that the government was negligent in pursuing the accused." State v. Empak, Inc., 889 S.W.2d 618, 623 (Tex.App.--Houston [14th Dist.] 1994, pet. ref'd) citing Doggett v. United States, 505 U.S. 647, 652-64, 112 S.Ct. 2686, 2691, 120 L.Ed.2d 520 (1992). The Houston court concludes "we cannot say the trial court abused its discretion in this case by finding that Empak's speedy trial right was violated." Empak, 889 S.W.2d at 625. In Doggett the U.S. Supreme Court called for deferential review of the trial court's determination that the government was negligent in bringing the accused to trial. Doggett at 652-54, 112 S.Ct. at 2691. However, deference is appropriate...

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    ...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 ......
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