State v. Kuri

• Decision Date: 07 January 1993
• Docket Number: No. C14-91-00432-CR,C14-91-00432-CR
• Citation: 846 S.W.2d 459
• Parties: The STATE of Texas, Appellant, v. Jorge Elias KURI, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 459

846 S.W.2d 459

The STATE of Texas, Appellant, v. Jorge Elias KURI, Appellee.

No. C14-91-00432-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Jan. 7, 1993.

Dissenting Opinion of Justice Sears

Jan. 14, 1993.

Discretionary Review Refused May 26, 1993.

Lester Blizzard, Houston, for appellant.

Jack B. Zimmermann, Jim Lavine, Houston, for appellee.

Before ROBERTSON, SEARS and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

This is an appeal by the state from a dismissal for lack of a speedy trial. Appellee, an attorney, was indicted for the offense of delivery of a controlled substance, cocaine. The Honorable Norman Lanford granted Appellee's Motion to Dismiss for Lack of a Speedy Trial, holding that appellee was denied a speedy trial in violation of the U.S. and Texas Constitutions. The state in three points of error contends Judge Lanford erred by failing to properly apply the constitutional standards for a speedy trial to the facts of this case. We reverse and remand.

The right to a speedy trial is guaranteed by the Sixth Amendment of the U.S. Constitution as applied to the states through the Fourteenth Amendment. U.S. Const. amend. VI; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Texas Constitution also guarantees the accused in all criminal prosecutions the right to a speedy public trial. Tex. Const. art. I, sec. 10. Although the Texas and federal constitutional rights to a speedy trial are separate and distinct, the federal courts' interpretation and application of this Sixth Amendment right has served as a useful guide for the Texas courts in interpreting our state constitutional right to a speedy trial. Chapman v. Evans, 744 S.W.2d 133, 135 (Tex.Crim.App.1988); Hull v. State, 699 S.W.2d 220 (Tex.Crim.App.1985). In Barker v. Wingo, the United States Supreme Court adopted a four-part "balancing test" to determine whether an accused has been denied the right to a speedy trial under the Sixth Amendment. The factors to be considered in each case are: (1) the length of delay; (2) the reason for the delay; (3) the accused's assertion of the right; and (4) the prejudice to the accused resulting from the delay. Barker, 407 U.S. at 530, 92 S.Ct. at 2192; Chapman, 744 S.W.2d at 136. These factors are applied on an ad hoc basis as a balancing test in which the conduct of the prosecution and the defendant are weighed. Barker, 407 U.S. at 530, 92 S.Ct. at 2192; Thompson v. State, 804 S.W.2d 577 (Tex.App.--Houston [14th Dist.] 1991, no pet.).

A brief procedural history of this case reflects that appellee was indicted on August 19, 1988, and charged with delivery and possession of cocaine weighing at least 400 grams. On June 20, 1989, the case was dismissed on the state's motion following the trial court's denial of the state's motion for a two-day continuance. Approximately one year later, on June 22, 1990, appellee was again indicted and charged only with the offense of delivery of cocaine which arose out of the same transaction as the initial indictment. The parties agreed to a setting of the case for trial on April 22, 1991. On April 23, 1991, Judge Lanford granted appellee's Motion to Dismiss for Lack of Speedy Trial. Other relevant facts and procedural details of the case will be provided in the remainder of this opinion as the issues are discussed.

The delicate balancing process set out in Barker v. Wingo mandates that the trial court, and we, as an appellate court, consider the conduct of both the state and the defendant in determining the speedy trial issue. No one factor of the four set out in Barker is sufficient or necessary to determine a speedy trial violation. Rather, they are related and must be considered together along with other factors to assist us as we carry out the delicate balancing process. Barker, 407 U.S. at 533, 92 S.Ct. at 2193. To facilitate discussion and for clarity, we have separated the four factors in this opinion, but they are interrelated and will be examined in that context.

LENGTH OF DELAY

Length of delay alone is not the measure. The right to a speedy trial cannot be quantified into a specific number of days or months. Id. at 521-522, 92 S.Ct. at 2187-2188. Thus no specific length of delay automatically constitutes a violation of the right to a speedy trial. Hull, 699 S.W.2d at 221; Easley v. State, 564 S.W.2d 742, 744 (Tex.Crim.App.1978), cert. denied, 439 U.S. 967, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978); Chapman, 744 S.W.2d at 136. In Barker, five years had passed, and the Supreme Court acknowledged that this was too long, but found against the defendant because there were counterbalancing factors. Barker, 407 U.S. at 533, 92 S.Ct. at 2193. One of these factors in Barker was the defendant's failure to assert the right, as evidenced by his acquiescence in various continuances. However, length of delay is to some degree a triggering mechanism. Until some delay results which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Id. at 530, 92 S.Ct. at 2192. Since appellee has asserted and the trial court found actual prejudice, we must make the inquiry into the other factors. However, we must consider the length of delay only in conjunction with the other factors and circumstances. First, we must determine by the balancing process what the relevant length of delay is in this case.

The trial court largely hinged its speedy trial determination on its conclusion that there was a 32-month length of delay in this case. Appellee and the trial court arrived at this total by including three separate time periods. The first is a ten-month period from the initial indictment on August 19, 1988, to June 20, 1989, when it was dismissed on the state's motion. The second is a 12-month period from the dismissal date until June 22, 1990, during which time appellee was not under any indictment. The third is a ten-month period from June 22, 1990, the date of the second indictment, to April 23, 1991, when Judge Lanford granted appellee's Motion to Dismiss for Lack of Speedy Trial.

The record reveals that the initial ten-month period of delay which the trial court included was primarily brought about by the parties' agreed resets. From the date of the original indictment, August 19, 1988, until its dismissal on June 20, 1989, the appellee agreed to no less than eight resets. In the next-to-last reset, the parties had agreed to a trial setting of May 19, 1989. Appellee asked the state if it would agree to a later reset because Judge Lanford would be attending a judicial seminar on that date and appellee did not want to try the case before a visiting judge. The state agreed to reset it to June 19, 1989, which turned out to be the last setting. Prior to this setting, the state prosecutor asked for a reset because a state's witness was unavailable. Appellee's counsel refused and the state filed its first Motion for Continuance on June 14. Appellee vigorously opposed this motion. The record is unclear when the court denied the motion. The court's finding of fact states that it was denied on June 14, however, the statement of facts relating to the hearing indicates that the court carried the matter over to June 20, 1989, without any objection from appellee. In the interim, on June 16, the state filed its second Motion for Continuance, because another essential witness would be unavailable to testify until later that week. The state requested only a two-day continuance. Appellee vigorously opposed even this minimal continuance. Judge Lanford asked the parties if they would be able to try the case later in the week, or during the following week. Appellee's counsel responded that he very much opposed the motion. Judge Lanford at first granted the state's Motion for Continuance and set the case for trial the following Monday. The court then heard further argument by appellee's counsel and stated:

"I hate to appear wishy-washy, but I have reconsidered this. I am going to deny the Motion for a Continuance. I think the State ought to go. Please be back at 1:30 this afternoon."

The state was forced later that same day to file a Motion to Dismiss the Indictment, which the trial court granted.

Our review of the record persuades us that the trial court erred in including this initial ten-month period for speedy trial purposes. In our opinion, the trial court did not apply the proper balancing test because it did not consider the conduct of the defendant as required by Barker. This initial period of delay was almost exclusively brought about by resets agreed to by the appellee. We have previously held that the time covered by a defendant's agreed resets is to be excluded from speedy trial consideration. Caicedo v. State, 769 S.W.2d 597, 598 (Tex.App.--Houston [14th Dist.] 1989, no pet.); Lewis v. State, 686 S.W.2d 243 (Tex.App.--Houston [14th Dist.] 1985), aff'd, 711 S.W.2d 41 (Tex.Crim.App.1986). We firmly believe that a defendant's agreement to various resets is inconsistent with assertion of a speedy trial right, and the delay covered by such resets should not be included in speedy trial computations. There is no question that the defendant's conduct in agreeing to resets is a factor to be considered in the balancing process enunciated in Barker. Barker, 407 U.S. at 530, 92 S.Ct. at 2192.

The second period of delay included by the court in its speedy trial determination ran from the dismissal of the first indictment to June 22, 1990, when the second indictment was voted by the grand jury. This was a period of approximately twelve months. We find this time period should also be excluded from the speedy trial computation. There can be no speedy trial guarantee when there are no formal charges pending, unless the person is being restrained in some way. The right attaches only when a person is formally "accused," which occurred here with the second indictment. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct....