State v. Lopez
| Decision Date | 29 September 2021 |
| Docket Number | NO. PD-1291-18,PD-1291-18 |
| Citation | 631 S.W.3d 107 |
| Parties | The STATE of Texas, Appellant v. Martin Rivera LOPEZ |
| Court | Texas Court of Criminal Appeals |
Michael D. Goains, for Appellee.
Nathan E. Morey, for Appellant.
Richardson, J. delivered the opinion of the Court, in which Keller, P.J., and Hervey, Newell, Walker, Slaughter, and McClure, JJ., joined.
Can a four-month delay be enough to violate a defendant's right to a speedy trial in a misdemeanor case? We hold that in this case it cannot. Appellee Martin Rivera Lopez spent 112 days in jail on a felony charge pursuant to Texas Penal Code Section 22.04(a) that was reduced after 85 days to a Class A misdemeanor pursuant to Texas Penal Code Sections 22.01(a)(3) and 22.01(c)(1). After the trial court granted Appellee's motion for speedy trial and dismissed the case, the State appealed. The court of appeals considered the four factors articulated by the Supreme Court in Barker v. Wingo – length of delay, reasons for delay, defendant's assertion of the right, and prejudice to the defendant – and upheld the trial court's dismissal. See Barker v. Wingo , 407 U.S. 514, 530-32, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ; State v. Lopez , 563 S.W.3d 409 (Tex. App. – San Antonio 2018, pet. granted). But a complete review of the brief hearings that took place at the trial court suggests the following: (1) that counsel for Appellee requested an improper remedy – asking for a speedy trial while simultaneously acknowledging Appellee's incompetence and asking for a dismissal 112 days after his arrest (both at the bench and in the speedy trial motion he filed), and (2) that the second visiting trial judge exceeded her authority by granting that motion and then dismissing the case. It is clear that during the "non-evidentiary" hearing on August 8, 2017,1 state statutes and precedent were not followed, and some of the factual and legal assertions were inaccurate. Accordingly, based on our independent review of the record and the unique circumstances in this case, we reverse.
BACKGROUND
Appellee was arrested on April 18 pursuant to a felony complaint for the offense of causing bodily injury to an elderly person. See TEX. PENAL CODE § 22.04(a). Trial counsel was appointed on May 12, and following pre-indictment hearings on June 21 and July 7 in the 144th District Court, counsel received a 75-day notice pursuant to Article 17.151 of the Texas Code of Criminal Procedure on July 2. The notice stated that Appellee had been in custody for 75 days awaiting indictment, and he was entitled to a personal recognizance bond or reduced bail if the State was not ready for trial within 90 days. On July 12, five days before the 90-day deadline, the State, using its prosecutorial discretion, dismissed the felony charge and filed an information for a Class A misdemeanor assault against Appellee for the offense of intentionally or knowingly causing offensive or provocative physical contact to Maria Lopez, an elderly person. See TEX. PENAL CODE §§ 22.01(a)(3) & 22.01(c)(1).
Two county court hearings took place – one on July 20 and one on August 8. Until the August 8 hearing, there is nothing in the record that reflects Appellee requested or filed a speedy trial motion at any time. In fact, his speedy trial motion was filed after the hearing took place on August 8. Appellee's claims that the State had no case, there was no injury, and the victim might not cooperate were based on unsworn and unsupported comments made by counsel for Appellee because there was never an evidentiary hearing during any of the prior hearings.
On July 20, 2017 (not July 27, as noted in the court of appeals’ opinion), Appellee appeared in front of the first visiting judge in County Court #7 to answer to the newly filed misdemeanor charge. There is no record of that hearing other than the court's docket sheet found in the Clerk's file, but the hearing is mentioned by both the State and Appellee at the conclusion of the August 8 hearing and in Appellee's Brief before this Court. In Appellee's Brief, he claims that (1) the first visiting trial judge violated Appellee's rights by not following Article 17.151 and not immediately releasing him once the case was reduced to a misdemeanor; and (2) Appellee's counsel had no notice of a trial setting on August 8. Specifically, Appellee claims the following:
Finally on August 8, 2017, Appellee's trial counsel was notified that his client was available in the Court without any prior notice of any type of hearing. When Trial Counsel entered the Courtroom and approached the coordinator, the State of Texas approached the bench and announced ready for trial. Neither the Appellee nor his Trial Counsel had any notice of a Trial Setting on that date and such notice cannot be shown anywhere in the record. Counsel is not attempting to raise any conspiracy that the State/and or the Court purposely denied him any notice. The situation at hand and the complexity of the matter with no proceeding legal arguments led to that result. Appellee immediately filed his Request for Speedy Trial, which he had planned on filing on that date.
Appellee claims in the July 20 hearing that he requested a bond pursuant to Article 17.151(1)(2) and noted in his brief the decision to deny Appellee a bond was "solely made by the Visiting Judge to that Court" and that the State did not oppose a bond. Other than the court's docket sheet entries and the representations by the attorneys from both sides that a hearing took place on July 20, we do not know for sure if the visiting trial judge denied Appellee a bond. What is clear is that Appellee was still in custody for the August 8 hearing.
July 20, 2017 Hearing
What we do know about the short hearing on July 20 based on a review of the briefs, court docket sheet, and the record of the discussion at the bench during the August 8 hearing (referring to the July 20 hearing) is the following: first, Appellee did not request a speedy trial during that hearing; and second, Appellee's competency was sufficiently raised by both parties such that the first County Court visiting judge ordered that he be evaluated before the next hearing on August 8. Because we do not have a record of the proceedings, it is unclear why the first visiting judge did not stay the proceeding consistent with Article 46B.004(d), which states, "[i]f the court determines there is evidence to support a finding of incompetency, the court, except as provided by Subsection (e) and Article 46B.005(d), shall stay all other proceedings in the case." TEX. CODE CRIM. PROC. ANN. 46B.004(d). But he did not resolve any evidentiary matters. The second visiting judge likewise did not issue a stay consistent with the requirements of that statute.
The August 8 trial date that Appellee claims "cannot be shown anywhere in the record" is first listed on the court's docket sheet on July 21 (the handwriting is difficult to decipher, but the date is clear) and then again in an entry on July 24 that states "Set for trial" preceding the date August 8. Again, because there is no record from the first hearing, we rely on the trial court's docket entries to determine what might have taken place. Appellee claims he was illegally denied a bond in that hearing; however, on the Court's docket sheet there is an entry marked "7/20/17 Pretrial Release Inmate with PR Bond – Conditions Mental Health – GPS System, Waive fees, interview for Haven for Hope." Further down the same docket sheet is the following "7/24/17 – PR Bond – Waive Fees – May live at Haven for Hope, Set for trial August 8, 2017."
August 8, 2017 Hearing
The next entry on the docket sheet is on August 8 when the second visiting judge was presiding. Despite his argument that he knew nothing about the setting on that date, counsel for Appellee specifically stated during that hearing, "[w]e had the case, that day, set for today." Despite the entries on the docket sheet that he be evaluated and be released to Haven for Hope, it is uncontroverted that Appellee was still in custody on August 8, 2017. As a result, we can conclude on August 8 that (1) some notice existed that the case was set for trial on August 8; (2) the competency evaluation discussed on July 20 did not take place; (3) Appellee was never admitted to Haven for Hope; and (4) the most logical explanation for Appellee still being in jail was based on comments made by the second visiting judge, who stated during the August 8 hearing:
Counsel for Appellee claims in his brief that he had no notice of the August 8 hearing and that the State immediately announced ready for trial. As noted, that is not consistent with the record before us. Although we can appreciate the fact that the second visiting judge wanted to move the docket, what occurred can only be described as a confusing hearing that included off-the-record conversations and unclear rulings that failed to follow our statutes and existing case law. The chronology is as follows: The hearing started with the trial judge asking Appellee a series of questions regarding his competency, wherein he seemed to be responsive and answered all questions in an intelligent manner. The trial judge then went off the record, so we do not know what took place. Once back on the record, counsel for Appellee immediately asserted his right to a speedy trial (with no motion filed), demanded a dismissal of the charges, and stated "I will file the official paperwork this afternoon as quickly as possible." The State responded by properly (1) requesting notice (the record reflects Appellee's attorney had not even filed such a motion); (2) announcing ready for trial; and (3) reminding the Court of the competency issues and concerns they had agreed upon with Appellee.2
At that point, the trial court immediately granted Appellee's speedy trial motion and ordered the parties to trial, but did not rule on the...
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