State v. Moreno
| Decision Date | 15 February 2022 |
| Docket Number | 01-19-00861-CR |
| Citation | 651 S.W.3d 399 |
| Parties | The STATE of Texas, Appellant v. Marco Antonio MORENO, Appellee |
| Court | Texas Court of Appeals |
Charles Karakashian Jr., Waco, Julie L. Renken, for Appellant.
Michael Mowla, Duncanville, John Winkelmann, for Appellee.
Panel consists of Justices Kelly, Guerra, and Farris.
A grand jury indicted appellee, Marco Antonio Moreno, for the felony offense of aggravated assault with a deadly weapon in 2012.1 Over seven years later, in 2019, Moreno moved to set aside the indictment, asserting the State had violated his speedy trial right under the Sixth Amendment. The trial court granted Moreno's motion and dismissed the indictment with prejudice.
In its sole issue on appeal, the State contends the trial court erred in granting Moreno's motion to set aside the indictment because it did not conduct a proper analysis under applicable United States Supreme Court precedent.
We affirm.
On April 18, 2012, a grand jury indicted Moreno for aggravated assault with a deadly weapon (the "assault charge"). The same day, the grand jury also indicted Moreno on an unrelated charge for possession of a controlled substance (the "possession charge"). The trial court appointed counsel to represent Moreno. Four months later, in August 2012, Moreno sought a reduction of his bond. The trial court denied this motion, and Moreno remained in custody.
About three weeks before the first trial setting in September 2012, Moreno moved for a psychiatric examination, requesting that an expert be appointed to examine his sanity and competency to stand trial. The trial court granted this motion. Over the next fifteen months, both Moreno and the State moved for competency determinations, and multiple competency evaluations by experts occurred. On December 11, 2013, after a trial, a jury determined that Moreno was competent to stand trial.2 Following the jury's competency verdict, the trial court set both cases against Moreno for a jury trial on January 6, 2014. Moreno moved for a new trial on the competency issue, and while the trial court denied the motion for new trial, it reset the cases on the jury trial docket for April 28, 2014.
On April 28, 2014, a jury trial was held solely on the possession charge. The assault charge—the charge underlying this appeal—did not proceed to trial. After the jury found Moreno guilty of possession of a controlled substance, the trial court, in June 2014, assessed his punishment at confinement for 33 years. Moreno appealed his conviction to this Court, and his appointed appellate counsel filed a brief under Anders v. California . See 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (). On September 24, 2015, a panel of this Court issued a memorandum opinion holding that Moreno's appeal was frivolous (the "possession appeal"). See Moreno v. State , No. 01-14-00584-CR, 2015 WL 5626624, at *1 (Tex. App.—Houston [1st Dist.] Sept. 24, 2015, no pet.) (mem. op., not designated for publication) (per curiam). We granted his appointed counsel's motion to withdraw and affirmed the judgment of conviction for possession. Our mandate issued on December 4, 2015.
Six days before this Court issued its opinion in the possession appeal, on September 18, 2015, Washington County District Clerk Tammy Brauner emailed the assigned prosecutor for Moreno's cases about the status of the still-pending assault charge. In this email, Brauner stated:
We still show cause no. 16199-Marco Moreno [assault] pending. He had two cases 16198 and 16199 that went to jury trial but we only finished cause no. 16198 [possession]. Can you please check on this whenever you get a chance and let me know the status.
The prosecutor responded:
It is still pending. Although evidence of 16199 [assault] came in during the punishment portion of 16,198 [possession], 16199 is still alive and well. We have not determined when we want to request the court to bench warrant Moreno back to take him to trial on 16199.
A copy of this email exchange was filed with the district clerk the same day.
In summer 2018, Moreno was granted parole on the possession conviction and was released from confinement. In October 2018, the trial court coordinator issued a scheduling order setting the assault charge for a non-trial setting on December 6, 2018. The case was reset until January 10, 2019, "[t]o allow [Moreno] time to retain an attorney." Moreno's counsel, who had represented him since December 2013, moved to withdraw. The trial court granted the motion and reset the case until January 24, 2019, for appointment of new counsel.
On January 24, 2019, the trial court appointed new counsel for Moreno. That same day, the State moved to find Moreno's bond insufficient. In this motion, the State recited the history of the case as follows:
At some point during the summer of 2018, Moreno was released on parole. Due to being incarcerated on a drug offense, no notice was given to the victim or the District Attorney's Office of his release. It was only during a chance conversation with officers from the Brenham Police Department that the District Attorney's Office became aware of his presence in the community.
The State argued that, by releasing Moreno on the possession conviction, the Texas Department of Criminal Justice ("TDCJ") had improperly granted Moreno a personal recognizance bond for the assault charge. The State requested that the trial court "find Defendant's personal recognizance bond invalid and issue a capias for his arrest." The trial court granted the State's motion, issued a capias for Moreno's arrest, and set his bond at $25,000. The same day, Moreno executed a surety bond.
Also on January 24, 2019, the trial court coordinator issued a scheduling order, signed by counsel for both Moreno and the State, setting the assault charge for a jury trial on August 19, 2019. One month before this trial setting, on July 19, 2019, Moreno moved to set aside the assault indictment with prejudice for the failure to afford him his right to a speedy trial under both the United States and Texas Constitutions. This motion was originally set for hearing on July 25, 2019 but was later reset for November 1, 2019. The case was also placed on the bench trial docket for the same date.
At the hearing on Moreno's motion, the trial court agreed to take judicial notice of Moreno's file. Two witnesses testified at this hearing: Brauner and Kenneth Franklin, the director of a men's recovery center in Bryan, Texas. Brauner testified about the email exchange she had with the prosecutor in September 2015.
Franklin testified that he has been the director of a men's recovery center in Bryan for three years. Moreno came to the center as a client about 18 months before the hearing, but he had graduated from the recovery program and now worked as an intern for the program. Franklin was aware that Moreno had been released on parole. Franklin was also aware of Moreno's mental health history and stated that he interacts with Moreno every day and Moreno confides in him. Once a month, Franklin takes Moreno to get an injection at MHMR Mental Health in Bryan to help with his anxiety. Franklin testified that Moreno does not sleep well, he "worries a lot," and "[s]ometimes he gets sort of, like, a paranoid state
, like, he wants to be to himself." Franklin believed that Moreno was worried about his future and that he could go back to prison. On cross-examination, Franklin agreed that Moreno was on parole for at least the next 20 years and could be sent back to prison for violating his parole. He agreed with the State that Moreno "could be worried about that, too, separate and aside from this case."
At the close of the hearing, the trial court granted Moreno's motion to set aside the assault indictment and dismissed the indictment with prejudice. At the State's request, the trial court issued written findings of fact and conclusions of law in support of its order dismissing the indictment. The State appealed the trial court's order. See TEX. CODE CRIM. PROC. art. 44.01(a)(1) ().
In its sole issue, the State contends that the trial court erred by granting Moreno's motion to set aside the indictment for violating his speedy trial right.
In all criminal prosecutions, the Sixth Amendment guarantees the defendant a speedy trial. U.S. CONST. amend. VI ; Vermont v. Brillon , 556 U.S. 81, 89, 129 S.Ct. 1283, 173 L.Ed.2d 231 (2009) ; see also TEX. CONST. art. I, § 10 (); Cantu v. State , 253 S.W.3d 273, 280 n.16 (Tex. Crim. App. 2008) (). This guarantee is "one of the most basic rights preserved by our Constitution." Klopfer v. North Carolina , 386 U.S. 213, 226, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Yet the right remains "vague," "amorphous," and "slippery," making it "impossible to determine with precision when the right has been denied." Barker v. Wingo , 407 U.S. 514, 521–22, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). It is not subject to quantification in days or months. Ussery v. State , 596 S.W.3d 277, 282 (Tex. App.—Houston [1st Dist.] 2019, pet. ref'd). Instead, its status depends on the application of the balancing test adopted by the United States Supreme Court in Barker v. Wingo , "in which the conduct of both the prosecution and the defendant are weighed" on an ad hoc basis, considering these four factors:
407 U.S. at 530, 92 S.Ct. 2182 ; see Cantu , 253 S.W.3d at...
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