State v. Manley, 10-05-00341-CR.

Citation220 S.W.3d 116
Decision Date07 February 2007
Docket NumberNo. 10-05-00343-CR.,No. 10-05-00344-CR.,No. 10-05-00342-CR.,No. 10-05-00341-CR.,10-05-00341-CR.,10-05-00342-CR.,10-05-00343-CR.,10-05-00344-CR.
PartiesThe STATE of Texas, Appellant, v. Malcolm Delshaun MANLEY, Eric Deshun Lewis, Kevin Dale Brown, Jr., and Brandon Ratcliff, Appellees.
CourtCourt of Appeals of Texas
220 S.W.3d 116
The STATE of Texas, Appellant,
Malcolm Delshaun MANLEY, Eric Deshun Lewis, Kevin Dale Brown, Jr., and Brandon Ratcliff, Appellees.
No. 10-05-00341-CR.
No. 10-05-00342-CR.
No. 10-05-00343-CR.
No. 10-05-00344-CR.
Court of Appeals of Texas, Waco.
February 7, 2007.

[220 S.W.3d 118]

James M. Kuboviak, County Atty. for Brazos Atty., Bryan, for appellant.

Brad K. Cune, Bruce L. Errant, Jerry L. Gribble, Bryan, Laura L. Cass, Albuquerque, NM, for appellees.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.



The State appeals the trial court's dismissal of these four cases on speedy trial grounds. The State argues in its sole issue that the court erred by dismissing the cases because: (1) the length of delay in trying Appellees was not unreasonable; (2) legitimate reasons exist for the delay; (3) Appellees did not promptly assert their speedy trial rights; and (4) Appellees did not suffer prejudice from the delay. We will affirm.


Arrest warrants were issued for each of the Appellees for his alleged participation in a misdemeanor assault in September 2002. Malcolm Delshaun Manley and Kevin Dale Brown, Jr. were arrested in October 2002, Eric Deshun Lewis was arrested

220 S.W.3d 119

in March 2003, and Brandon Ratcliff was arrested in January 2004. The court granted the State's motion for a joint trial as to all four defendants, and a jury trial was held in June 2004. However, the court declared a mistrial on the third day of trial at the defendants' request because of the discovery of potentially exculpatory evidence which the State had not previously disclosed.

Lewis filed a motion to dismiss on speedy trial grounds in October 2004. The court heard Lewis's motion in December 2004 but deferred a ruling, allowing the State an opportunity to review the matter further and respond as appropriate. The court scheduled the matter for another hearing in January 2005, which apparently never occurred, and for trial in February 2005. The parties were notified on July 12, 2005 of a preferential trial setting for August 22, 2005. The other Appellees filed dismissal motions on speedy trial grounds three days before this August trial setting. The court granted all four dismissal motions after a hearing that same day.

Applicable Law

"[W]e apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components." Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim.App.2002). Because the court granted Appellees' speedy trial motions, we must presume that the court resolved any disputed fact issues in Appellees' favor, and we must defer to any implied findings supported by the record. Id. We "must uphold the trial court's ruling if it is supported by the record and is correct under the applicable law." Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim.App.2003).

We balance four non-exclusive factors when considering a speedy trial claim: (1) the length of the delay; (2) the reasons for the delay; (3) the timeliness of the assertion of the right to a speedy trial; and (4) any prejudice caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972); Shaw, 117 S.W.3d at 888-89; Shea v. State, 167 S.W.3d 98, 102 (Tex.App.-Waco 2005, pet. ref'd).

Effect of Joint Prosecution

The fact that the State chose to prosecute the Appellees in a single trial raises at least two issues: (1) whether the "speedy trial clock" should begin at the same time for all four of them even though they were arrested at different times; and (2) whether delays attributable to any one of them should be attributable to the others. Because our research discloses no Texas cases addressing the effect of a joint prosecution on a speedy trial claim, we will look to other jurisdictions for guidance.1

220 S.W.3d 120

According to federal decisions, there is only one "speedy trial clock" in cases involving multiple defendants which does not begin to run until the commencement of the "clock" applicable to the most recently added defendant. See Henderson v. United States, 476 U.S. 321, 323 n. 2, 106 S.Ct. 1871, 1873 n. 2, 90 L.Ed.2d 299 (1986); United States v. Gambino, 59 F.3d 353, 362 (2d Cir.1995); United States v. Piteo, 726 F.2d 50, 52 (2d Cir.1983). These decisions are grounded in the federal Speedy Trial Act, which contains a specific provision governing joint trials. Title 18, section 3161(h)(7) excludes from speedy trial calculations:

A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and no motion for severance has been granted.

18 U.S.C.S § 3161(h)(7) (LexisNexis 1993).2

Numerous states have enacted speedy trial laws with identical or substantially similar provisions.3 See Alaska R.Crim. P. 45(d)(5); ARK. R.CRIM. P. 28.3(g); COLO. REV.STAT. ANN. § 18-1-405(6)(c); COLO. R.CRIM. P. 48(b)(6)(III); CONN. PRACTICE BOOK § 43-40(4); FLA. R.CRIM. P. 3.191(l)(5); HAW. R. PEN. P. 48(c)(7); MASS. R.CRIM. P. 36(b)(2)(E); MICH. R.CRIM. P. 6.004(C)(5); NEB.REV.STAT. § 29-1207(4)(e); N.Y. PEN. LAW § 30.30(4)(d); S.D. CODIFIED LAWS § 23A-44-5.1(4)(e); see also UNIF. R.CRIM. P. 722(f)(13), 10 U.L.A. 203-04 (2001). Oklahoma by comparison permits delay if "the accused is charged as a codefendant or co-conspirator and the court has determined that the codefendants or co-conspirators must be tried before separate juries taken from separate jury panels." OKLA. STAT. § 812.2(A)(2)(f).

The State of New York has adopted the federal approach regarding when the speedy trial clock begins to run in cases involving multiple defendants. See People v. Barnett, 135 Misc.2d 1127, 517 N.Y.S.2d 849, 850-51 (Crim.Ct.1987) (construing N.Y. PEN. LAW § 30.30(4)(d)). Conversely, the State of Ohio, which does not have a comparable statutory exclusion, has rejected this approach. See State v. Leadingham, 1989 WL 62873, at *3, 1989 Ohio App. LEXIS 2242, at *5-7 (Ohio Ct.App. 1989).

Like Ohio and many other states, Texas does not have a statutory exclusion comparable to that found in the federal Speedy Trial Act for delays attributable in some manner to the State's attempt to jointly try co-defendants. In addition, a slight majority of states and the District of Columbia have concluded that, for a Sixth Amendment speedy trial claim, delays attributable to a co-defendant are not weighed against the defendant, particularly if the defendant objects to any delays sought by a co-defendant. See Kelley v. State, 568 So.2d 405, 410 (Ala.Crim.App. 1990); Sanchez v. Super. Ct. of Los Angeles

220 S.W.3d 121

County, 131 Cal.App.3d 884, 182 Cal. Rptr. 703, 708 (1982); State v. Ellis, 1987 WL 8701, at *2, 1987 Del.Super. LEXIS 1038, at *6 (Del.Super.Ct.1987); Hartridge v. United States, 896 A.2d 198, 210 (D.C. 2006); Jackson v. State, 272 Ga. 782, 534 S.E.2d 796, 800 (2000); State v. Winters, 690 N.W.2d 903, 909-10 (Iowa 2005); Epps v. State, 276 Md. 96, 345 A.2d 62, 75-76 (1975); Flores v. State, 574 So.2d 1314, 1322 (Miss.1990); contra Lee v. State, 684 N.E.2d 1143, 1146 (Ind.1997); Kelly v. Richardson, 469 S.W.2d 700, 700 (Ky. 1971); State v. Gale, 526 So.2d 861, 864 (La.Ct.App.1988); State v. Smith, 2004-Ohio-6062, at ¶ 20 (Ohio Ct.App.2004); Commonwealth v. Kimbrough, 872 A.2d 1244, 1260 (Pa.Super.Ct.2005); State v. Dukes, 256 S.C. 218, 182 S.E.2d 286, 288 (1971).

A minority of states with speedy trial statutes have similarly concluded that delays attributable to a co-defendant are not weighed against the defendant, particularly if the defendant objects to any delays sought by a co-defendant. People v. Abeyta, 195 Colo. 338, 578 P.2d 645, 646 (1978); Miner v. Westlake, 478 So.2d 1066, 1067 (Fla.1985); People v. Roberts, 133 Ill. App.3d 731, 88 Ill.Dec. 773, 479 N.E.2d 386, 390 (1985); State v. McDonald, 718 So.2d 542, 545 (La.Ct.App.1998); Flores, 574 So.2d at 1321; State v. Anthony, 448 A.2d 744, 748 (R.I.1982). Consistent with this position, courts in at least five states have concluded that delays attributable to a co-defendant should be weighed against a defendant who either joined in the co-defendant's requested delay or failed to object. See Hicks v. State, 340 Ark. 605, 12 S.W.3d 219, 222-23 (2000); State v. Faalafua, 67 Haw. 335, 686 P.2d 826, 829-30 (1984); State v. Campbell, 104 Idaho 705, 662 P.2d 1149, 1154 (1983); People v. Fluellen, 160 A.D.2d 219, 553 N.Y.S.2d 670, 672 (N.Y.App.Div.1990); State v. Morrison, 1995 WL 723031, at *2-3, 1995 Ohio App. LEXIS 5352, at *5-6 (Ohio Ct.App. 1995). At least five other states apparently take the position that delays attributable to a co-defendant should not be weighed against the prosecution or are otherwise justified under those states' respective speedy trial statutes, regardless of whether there is an objection. See State v. Hankins, 141 Ariz. 217, 686 P.2d 740, 745 (1984); Randall v. State, 474 N.E.2d 76, 84 (Ind.1985); Commonwealth v. Long, 367 Pa.Super. 190, 532 A.2d 853, 855 (1987); State v. Dent, 123 Wash.2d 467, 869 P.2d 392, 401-02 (1994); State v. Johnson, 188 Wis.2d 602, 526 N.W.2d 279, 1994 WL 564649, at *2, 1994 Wisc.App. LEXIS 1271, at *8-9 n. 4 (Wisc.Ct.App.1994) (per curiam).

The McDonald decision rendered by the Second Circuit Court of Appeals for Louisiana appears to conflict with that of its sister court, the Fourth Circuit Court of Appeals, in Gale. Compare McDonald, 718 So.2d at 545, with Gale, 526 So.2d at 864. Conversely, the Mississippi Supreme Court applied the same reasoning to both its Sixth Amendment speedy trial analysis and its statutory analysis. See Flores, 574 So.2d at 1321-22. Disregarding these decisions, we presume that the remaining four states with speedy trial statutes (Colorado, Florida, Illinois, and Rhode Island) which have determined that delays attributable to a co-defendant are not weighed against the defendant would reach the same conclusion if...

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