Opinion issued October 13, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00525-CR
DARRELL LYNN HARVEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Court at Law No. 2
Galveston County, Texas
Trial Court Cause No. 224168
MEMORANDUM OPINION
A jury convicted appellant, Darrell Lynn Harvey, of driving while intoxicated and assessed punishment at a $2,000 fine. On appeal, Harvey contends the trial court erred in (1) denying his speedy-trial motion to dismiss; (2) denying his motions attacking the court’s personal and subject matter jurisdiction; and (3) denying his motion to recuse. In addition, the State asks on appeal that we vacate Harvey’s sentence because it is in error. We hold that the State did not violate Harvey’s right to a speedy trial, that the trial court had jurisdiction over Harvey, and that Harvey waived his recusal arguments by filing an untimely motion to recuse. Pursuant to the State’s appeal, we also hold that Harvey’s sentence falls outside the statutory range because the jury failed to assess the required confinement in jail. We thus affirm the judgment of conviction, but vacate the sentence and remand the case to the trial court for re-sentencing.
Facts
On March 22, 2003, a League City patrol officer observed Harvey driving a vehicle in Galveston County in an erratic manner. The officer stopped Harvey and noticed that his eyes were bloodshot and glassy, and that his breath smelled of alcohol. After Harvey failed three standardized field-sobriety tests, the officer arrested him. Harvey posted bond, and authorities released him from jail.
Approximately two months later, the State filed an information and complaint, alleging that Harvey operated a motor vehicle in a public place while intoxicated. On October 29, 2003, almost six months after the information was filed, Harvey moved to set aside the complaint for failure to grant him a speedy trial. The trial court did not rule on this motion. Harvey re-filed the speedy-trial motion on March 18, 2004, and the trial court scheduled a hearing on it. Harvey failed to appear at the hearing, and the trial court denied the motion. Before trial, Harvey filed three other motions contending that the trial court lacked personal and subject matter jurisdiction, all of which the trial court denied. On the day of trial—May 10, 2004—Harvey moved to disqualify and recuse the judge. The trial court denied the motion.
Speedy Trial
In his first issue, Harvey contends the trial court “failed to recognize” his right to a speedy trial. According to Harvey, the State exceeded the sixty-day requirement afforded by statute in which to proceed to trial and thus violated his constitutional right to a speedy trial.
The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and is applicable to the states through the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184 (1972). The Texas Constitution and Code of Criminal Procedure independently guarantee a speedy trial, but Texas courts look to the federal courts to determine constitutional rights and apply the Barker test for a speedy-trial analysis. Ervin v. State, 125 S.W.3d 542, 545 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992)); see also Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon Supp. 2004–2005).
The Barker test requires that we consider (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice to the defendant. Barker, 407 U.S. at 530, 92 S. Ct. at 2192; Shaw v. State, 117 S.W.3d 883, 888–89 (Tex. Crim. App. 2003). No single factor is necessary or sufficient to establish a violation of the defendant’s right to a speedy trial. Barker, 407 U.S. at 533, 92 S. Ct. at 2193; Shaw, 117 S.W.3d at 889. In conducting a speedy-trial analysis under the Barker test, we review legal issues de novo, but defer to a trial court’s resolution of factual issues. Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005).
1. The Length of the Delay
We measure the first factor, length of the delay, from the time the defendant is arrested or formally accused. Shaw, 117 S.W.3d at 889. Harvey contends the approximate fourteen-month delay between his arrest and the trial violates the Speedy Trial Act, which requires the State to prosecute him within sixty days. See Tex. Code Crim. Proc. Ann. art. 32A.02 § 1(3) (Vernon 1989) (“a court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within . . . 60 days of the commencement of a criminal action if the defendant is accused of a misdemeanor punishable by a sentence of imprisonment for 180 days or less or punishable by a fine only”).
Initially, we note that the Speedy Trial Act has been declared unconstitutional. See Meshell v. State, 739 S.W.2d 246, 258 (Tex. Crim. App. 1987) (declaring Speedy Trial Act unconstitutional because it violates separation of powers). A violation of the Speedy Trial Act thus provides no basis for a dismissal. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992) (holding that “[b]ecause the Act is invalid, it cannot provide [a] basis for relief”).
The fourteen-month delay between Harvey’s arrest and trial, however, is presumptively unreasonable. See id. at 956 (noting that courts generally hold delays of eight months or longer presumptively unreasonable); Shaw, 117 S.W.3d at 889 (holding that “[i]n general, delay approaching one year is sufficient to trigger a speedy-trial inquiry”). This delay does not necessarily mean that there is a speedy-trial violation; rather, it triggers a Barker speedy-trial analysis. Ervin, 125 S.W.3d at 546; Harris, 827 S.W.2d at 956. Once a presumptively unreasonable delay is proven, the court considers, “as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Shaw, 117 S.W.3d at 889 (quoting Doggett v. United States, 505 U.S. 647, 652, 112 S. Ct. 2686, 2691 (1992)). Here, the delay was several months more than the minimum needed to trigger the inquiry. This factor thus weighs in favor of finding a speedy-trial violation.
2. The Reason for the Delay
In reviewing the second factor, the reasons justifying the delay, we assign different weights to different reasons—some reasons are valid and serve to justify the delay, while other reasons are invalid and do not serve to justify it. Shaw, 117 S.W.3d at 889. Here, Harvey did not appear for the hearing on his motion for speedy trial, and thus no evidence was adduced concerning the reason for the delay. There is no evidence in the record of any party filing a continuance. At the time of trial, the trial court observed that the State never announced that it was not ready for trial, and advised Harvey that his trial had been delayed because of the high number of cases on the court’s docket: “You are not being denied a trial. It’s just that you are in there with 8,000 other cases I have in this court.” A crowded docket is not a valid reason for delay and thus is counted against the State, although not heavily. Shaw, 117 S.W.3d at 890.
3. The Defendant’s Assertion of His Right
The third factor, the defendant’s assertion of his right, considers whether the defendant really desired a speedy trial. Id. “A motion to dismiss notifies the State and the court of a speedy-trial claim, but a defendant’s motivation in asking for a dismissal rather than a prompt trial is clearly relevant, and may sometimes attenuate the strength of his claim.” Ervin, 125 S.W.3d at 547 (citing Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983)). Here, seven months after his arrest, Harvey filed a motion to set aside the complaint, demanding that the charges against him be dismissed because the State failed to prosecute the case within sixty days. Five months later, Harvey re-filed this motion. Harvey never requested a trial—rather, he merely sought to have his case dismissed because it was not prosecuted within sixty days, as required by the unconstitutional Speedy Trial Act. Harvey’s request for a dismissal, and not a trial, weighs against him. See id. Moreover, Harvey did not appear at the hearing on his motion to dismiss and adduced no evidence to support his claim of a speedy-trial violation. This factor thus weighs against finding a speedy-trial violation.
4. Prejudice to the Defendant Resulting from the Delay
The final Barker factor focuses on whether the defendant suffered prejudice as a result of the delay. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. Prejudice to a defendant is considered in light of the interests that the right to a speedy trial is intended to protect: (1) to prevent oppressive incarceration; (2) to minimize the defendant’s anxiety; and (3) to limit the possibility that the defendant’s defense will be impaired. Id.
Here, Harvey does not allege any prejudice to him; nor does the record indicate that any prejudice existed. First, Harvey was out on bond pending his trial and thus did not suffer oppressive pretrial incarceration. Second, Harvey did not offer evidence to the trial court that the delay had caused him any unusual anxiety or concern. See Shaw, 117 S.W.3d at 890. Third, Harvey based his entire defense on his cross-examination of the arresting officer. This officer’s testimony primarily came from the notes he took the night of the arrest and the videotape of the standardized tests, neither of which changed during the delay. This factor thus weighs against finding a speedy-trial violation. See id.
5. Balancing the Barker Factors
We note that the delay was presumptively unreasonable, as it was due to the court’s heavy docket, but under Barker these facts weigh only slightly against the State. When coupled with Harvey’s request for a dismissal rather than a trial, and his failure to appear at the hearing, we conclude that the balance favors no speedy-trial violation. Moreover, Harvey has not alleged, and we do not find, any prejudice caused by the delay. The trial court thus did not err in overruling Harvey’s motion to dismiss for failure to grant a speedy trial.
Subject Matter Jurisdiction
In his second issue, Harvey contends the trial court lacked both personal and subject matter jurisdiction. Harvey asserts this argument in a single paragraph and cites to no authority. Our review of the record indicates that the trial court had proper jurisdiction.
Subject matter jurisdiction is conferred on a court by statute or constitution. Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981) (noting power of court over subject matter of case is conveyed by statute or constitutional provision). County courts at law have jurisdiction over misdemeanor offenses. See Tex. Const. art. V, §§ 16, 17; Tex. Gov. Code Ann. §§ 25.0003, 25.0732 (Vernon 2004). Here, Harvey was charged with the misdemeanor of driving while intoxicated in Galveston County and was tried by a Galveston County court. The trial court thus had subject matter jurisdiction.
The presentment of an information vests the trial court with jurisdiction over the person of the defendant—personal jurisdiction. See Tex. Const. art. V, § 12(b) (“The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.”); Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App. 2003) (“the mere presentment of an information to a trial court invests that court with jurisdiction over the person of the defendant”). Here, the State filed an information against Harvey, charging him with driving while intoxicated. The trial court thus had personal jurisdiction.
Motion to Recuse
In his third issue, Harvey contends the trial court erred in denying his motion to recuse. Harvey contends that under Rule 18a(c), the judge either had to recuse himself or refer the motion to the presiding judge of the administrative district—he could not simply deny the motion. See Tex. R. Civ. P. 18a(c). The State contends Harvey waived this issue because he did not file his motion until the day of trial.
We review a judge’s denial of a motion to recuse for an abuse of discretion. Bruno v. State, 916 S.W.2d 4, 6 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d). Harvey filed his motion to recuse under Texas Rule of Civil Procedure 18a. Rule 18a, a civil rule setting forth the procedures for the recusal of judges, applies to criminal cases. Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993).
Rule 18a states that “[a]t least ten days before the date set for trial . . ., any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case.” Tex. R. Civ. P. 18a(a). When a timely motion is filed, “the judge shall either recuse himself or request the presiding judge of the administrative judicial district to assign a judge to hear such motion.” Tex. R. Civ. P. 18a(c).
In a criminal case, a trial judge has no duty to recuse or refer if the recusal motion is not timely filed. De Leon v. Aguilar, 127 S.W.3d 1, 5 n.3 (Tex. Crim. App. 2004) (orig. proceeding) (“A timely filed recusal motion triggers the trial judge’s duty to recuse or to refer. The trial judge has no such duty when a recusal motion is not timely filed.”); Arnold, 853 S.W.2d at 544–45 (holding that defendant’s failure to comply with ten-day notice provision waived appeal of denial to have motion heard by judge other than one assigned to case).
Here, Harvey’s motion to recuse was untimely—Harvey filed it on the day of trial. We thus hold that Harvey failed to preserve his recusal argument.Illegal SentenceIn a cross-issue on appeal, the State contends that the trial court erred in allowing the jury to return a punishment that was not within the statutory punishment range. A sentence that is outside the maximum or minimum range of punishment is unauthorized by law and thus illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). The State may raise the issue of an illegal sentence by a cross-point in its appellate brief and need not file its own notice of appeal to do such. Id. at 806–07. An illegal sentence cannot be enforced. Harris v. State, 670 S.W.2d 284, 285 (Tex. App.—Houston [1st Dist.] 1983, no pet.).
Harvey was charged with driving while intoxicated. Our Penal Code provides that, in the absence of a finding of an open container, a first-offense driving while intoxicated “is a Class B misdemeanor, with a minimum term of confinement of 72 hours.” Tex. Pen. Code § 49.04(b) (Vernon Supp. 2004–2005). Here, the jury found Harvey guilty of driving while intoxicated but assessed only a fine—it did not assess confinement. The punishment is below the prescribed statutory minimum and thus the punishment portion of the sentence is void. See Fullbright v. State, 818 S.W.2d 808, 809 (Tex. Crim. App. 1991) (holding that if punishment is not authorized by law, portion of sentence imposing that punishment is void); State v. Magee, 29 S.W.3d 639, 640 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (reversing sentence for Class B misdemeanor driving while intoxicated because it did not include required confinement).
Here, the sentencing error affects only the punishment assessed and not the conviction. We thus affirm the trial court’s judgment of conviction and remand the case to the trial court for a new sentencing hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004–2005); State v. Rowan, 927 S.W.2d 116, 116–17 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Conclusion
We conclude (1) the trial court did not err in denying Harvey’s speedy-trial motion to dismiss; (2) the trial court did not err in denying Harvey’s motions attacking the court’s personal and subject matter jurisdiction; and (3) Harvey failed to preserve his argument concerning his motion to recuse the trial judge. We also sustain the State’s cross-issue because we conclude that Harvey’s sentence is outside the statutory punishment range and thus is void. We affirm the judgment of conviction, vacate the sentence, and remand the case to the trial court for a new sentencing hearing.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
Do not publish. Tex. R. App. P. 47.2(b).