Turner v. State

Decision Date06 October 1976
Docket NumberNo. 51762,51762
Citation545 S.W.2d 133
PartiesRobert F. TURNER, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of felony theft under the provisions of our former penal code; the jury assessed punishment at imprisonment for 10 years.

Appellant challenges the sufficiency of the evidence and contends that he was denied the right to a speedy trial. In light of our disposition of this cause, we need only address the latter contention.

The offense is alleged to have occurred on June 30, 1972; an indictment was returned against appellant on August 14, 1972. Although the record is not clear, appellant and the State agree that at the time the indictment was returned appellant was incarcerated in a federal penitentiary, and that thereafter, on August 15, 1972, a detainer was placed on appellant by the authorities of this State. Subsequent to the placing of the detainer, appellant made several efforts to obtain a speedy trial; a chronology and summary of those efforts and the official action taken as reflected by the record follows:

August 14, 1972: Indictment returned.

August 15, 1972: Detainer placed on appellant

December 29, 1972: Appellant filed a motion denominated 'Petition for a Fair and Speedy Trial,' requesting that he be brought to trial or, in the alternative, that the charges against him be dismissed.

July 17, 1973: Letter from Gray County District Clerk to appellant, informing him that the above motion had been filed and that a copy of the motion had been forwarded to the District Attorney.

July 23, 1973: Appellant filed a motion to quash the indictment, requesting, in the alternative, that he be granted a speedy trial.

August 26, 1973: Letter from appellant to Gray County District Clerk inquiring whether any action had been taken on his motion filed on July 23, 1973.

_ _: Undated letter from Gray County District Clerk to appellant, repeating what she had stated in her letter of July 17, and indicating the District Attorney had advised her 'that the other defendant in this case is trying to make restitution and this will need to be considered.'

October 24, 1973: A letter bearing this date from the Attorney General of Texas to the District Attorney for the 31st Judicial District advised that action be taken on appellant's request for a speedy trial at the 'earliest opportunity.' 1

October 26, 1973: A letter to the District Attorney from an administrative assistant at the United States Penitentiary at Leavenworth, Kansas, inquiring on behalf of appellant whether any action had been taken on his request for a speedy trial.

September 23, 1974: Counsel was appointed for appellant.

September 23, 1974: Application for writ of habeas corpus ad prosequendum filed by District Attorney.

September 30, 1974: Application for writ of habeas corpus ad prosequendum filed by District Attorney.

October 10, 1974: Application for writ of habeas corpus ad prosequendum filed by District Attorney.

October 30, 1974: Application for writ of habeas corpus ad prosequendum filed by District Attorney.

October 30, 1974: Writ of habeas corpus ad prosequendum issued to the warden of the federal penitentiary in Springfield, Missouri.

November 12, 1974: A letter from appellant to Gray County District Clerk contained a copy of a 'Motion for Writ of Prohibition' purportedly filed in the United States District Court for the Western District of Texas. The motion requested that the federal court prohibit the effectuation of a writ of habeas corpus ad prosequendum to move appellant from the U.S. Medical Center for Federal Prisoners, Springfield, Missouri, to Gray County, Texas, for trial. Appellant contended that his right to speedy trial had been violated and that he could no longer be brought to trial on the pending charges.

November 18, 1974: Appellant's pretrial motion to quash the indictment filed by his appointed counsel heard and overruled.

November 20, 1974: Trial on the merits.

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution as applied through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Baker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The same right is assured by Article I, Section 10 of the Texas Constitution and Article 1.05, V.A.C.C.P.

The determination of whether an accused has been denied the right to a speedy trial is to be made by use of a 'balancing test' which was set out in Barker v. Wingo, supra. In each individual case the Court requires consideration of the following factors although they are not exclusive: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant resulting from the delay. See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Wilkerson v. State, 510 S.W.2d 589 (Tex.Cr.App.1974); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973). We will consider each of these criteria as applied to the case at bar.

LENGTH OF DELAY

The length of delay, much the same as the other criteria, is to be considered on a case by case basis. There is no precise length of delay which would irrefutably constitute a violation of the right to a speedy trial in all cases. In Barker v. Wingo, supra, it was said that:

'The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiring into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the particular circumstances of the case.' 2

In determining whether the right to speedy trial has been denied, the length of delay is measured from the time the defendant is formally accused or arrested. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). In this case appellant was incarcerated in a federal penitentiary at the time he was indicted on August 14, 1972; thereafter, on August 15, 1972, a detainer was placed upon appellant by this State. The time between the return of the indictment and the trial was some two years and three months. Such a delay is not, per se, a deprivation of the appellant's right to a speedy trial, but is certainly a fact requiring further consideration of appellant's claim. Barker v. Wingo, supra; and see McCarty v. State, 498 S.W.2d 212 (Tex.Cr.App.1973); Harris v. State, 489 S.W.2d 303 (Tex.Cr.App.1973); McKinney v. State, supra.

REASON FOR THE DELAY

It has been said that in considering the reason for delay different weight should be assigned to different reasons.

'A deliberate attempt to delay the trial in order to hamper the defensive should be weighted heavily against the government (footnote omitted). A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.' Barker v. Wingo, supra, 92 S.Ct. at 2192.

And see Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

The reason for the delay in this case is not well developed in this record. The appellant was incarcerated by federal authorities during the entire period of delay. The State has asserted that the delay was due in part to the fact that appellant was moved from one institution to another, that 'on several occasions when the State's Application for Writ of Habeas Corpus Ad Prosequendum arrived at the federal institution, the defendant had been transferred to another federal institution and it was necessary for the State to file a new writ.' While this may have been the case, we note that the record reflects the State did not file its first application for a writ until two years and one month after appellant had been indicted. At the hearing on appellant's pretrial motion to quash the indictment, the prosecutor admitted that after the appellant initially requested a speedy trial a lengthy period of time had elapsed during which the State made no effort to return appellant for trial; he did, however, assert that some delay was attributable to various motions appellant had allegedly filed in an attempt to resist a return to this jurisdiction. In the record before us, the only indication we find that appellant resisted this State's attempts to bring him to trial is the 'Motion for Writ of Prohibition' filed in a Federal District Court some two weeks prior to the trial of this case and some two years and three months after he was indicted.

The State has failed to supply a reason which would excuse the delay in bringing the appellant to trial. In Dickey v. Florida, supra, it was said the '(t)he State suggests no tenable reason for deferring the trial in the face of petitioner's diligent and repeated efforts by motions in the state court . . . to secure a prompt trial.' 90 S.Ct. 1564, at 1568. It can therefore be seen that the burden of excusing the delay rests with the State and that in light of a silent record or one containing reasons insufficient to excuse the delay, it must be presumed that no valid reason for delay existed.

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