COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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THE STATE OF TEXAS, ) No. 08-04-00125-CR
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Appellant, ) Appeal from
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v. ) 34th District Court
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JOSE LUIS URENDA, ) of El Paso County, Texas
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Appellee. ) (TC# 980D04641)
O P I N I O N
The State of Texas appeals from an order dismissing an indictment for violation of the defendant’s right to a speedy trial. See Tex.Code Crim.Proc.Ann. art. 44.01(a)(1)(Vernon Pamph. 2004-05). We reverse.
FACTUAL SUMMARY
On May 12, 1998, detectives in the narcotics division of the El Paso Police Department received information that a white van contained drugs. Detectives found the van in a grocery store parking lot and set up surveillance. A blue Ram Charger, driven by Appellee, Jose Luis Urenda, parked several spaces away from the white van. Moments later, Jorge Castillo arrived in an LTD. Urenda and Castillo opened the white van and moved several duffle bags from the van to the trunk of the LTD. Castillo drove away in the LTD and Urenda drove away in the white van, leaving the Ram Charger in the parking lot. The surveillance continued with one group of officers following the white van and another group following the LTD. When Castillo committed a traffic violation, the officers stopped the LTD. Castillo consented to a search of his vehicle and the officers found 100 pounds of marihuana.
The officers following Urenda observed him drive into an alley where he parked the van and met Luis Bouche. Urenda and Bouche crossed the street and got into a Suburban. Bouche drove the Suburban and Urenda sat in the front passenger seat. The officers followed the Suburban to a residence on McKinley which both Bouche and Urenda entered. After a short time inside of the residence, Urenda and Bouche exited carrying duffle bags which they put in the Suburban. Bouche committed a traffic violation and a marked police unit stopped them. Bouche consented to a search of the Suburban and the officers discovered several duffle bags that smelled like marihuana. Urenda was arrested on an outstanding warrant.
Other police officers had continued to maintain surveillance on the white van parked in the alley. During a subsequent search of the McKinley residence, officers found more marihuana, a large amount of money, and the keys to the white van. As they approached the van, the officers could smell a strong odor of marihuana emanating from inside of the van and they could see in plain view what appeared to be marihuana bundles in the rear of the van. They searched the van and found 1,200 pounds of marihuana.
That same day, Urenda was charged with possession of marihuana. A grand jury indicted him on July 16, 1998. Urenda hired counsel, Ron Henry and Joe Vasquez, and filed a written waiver of arraignment on August 21, 1998. Urenda, who had been released on $100,000 bond two days after his arrest, remained free on bond.
Over the next several years, from September of 1998 through July of 2003, the trial court repeatedly set Urenda’s case for pretrial hearings, including hearings on Urenda’s motion to suppress evidence, and for jury trial, but Urenda consistently requested and obtained continuances. More specifically, the case was set for pretrial hearing on Urenda’s motion to suppress on seventeen occasions, but the hearings were continued at Urenda’s request. The case was also set for jury trial on eleven occasions, but Urenda obtained continuances of those settings, sometimes due to scheduling conflicts, other times because defense counsel requested a hearing on the motion to suppress, and in other instances, because defense counsel set the matter for a plea rather than trial. The State did not ask for any continuances.
The State and Urenda’s attorneys engaged in good faith plea negotiations throughout the pendency of the case. Initially, the State’s offer involved imprisonment. Urenda’s case was set for entry of a guilty plea on several occasions, but Urenda never entered a plea of guilty and his case had to be re-set. Later, in early 2003, the State dropped its offer to a ten-year probated sentence, and Urenda’s case was again set for a guilty plea on June 9, 2003. Urenda refused the State’s offer and obtained new counsel, Eduardo Lerma, on June 6, 2003.
Urenda, through counsel, filed a new motion to suppress on June 13, 2003. On July 18, 2003, he filed a motion to dismiss for failure to provide a speedy trial. The trial court conducted the suppression hearing on August 19, 2003, but continued it until September 12, 2003. A visiting judge, the Honorable Dick Alcala, was assigned to hear that motion, but Urenda filed an objection to the visiting judge on September 11, 2003. Thus, the suppression hearing was not heard on September 12, 2003. Judge Alcala overruled the visiting judge objection, but Urenda subsequently filed a motion to recuse Judge Alcala based on a challenge to the assignment of visiting judges to the Impact Court. Judge Alcala voluntarily recused himself. The Honorable Eduardo Marquez was assigned to hear the case. Judge Marquez set the suppression hearing for October 28, 2003, but Urenda’s counsel could not attend because of a scheduling conflict so on October 15, 2003, the court conducted a hearing on what it construed as a motion for a continuance by Urenda. That same date, Urenda filed a motion re-urging his right to a speedy trial and seeking dismissal. The suppression hearing took place on December 19, 2003. By written order signed February 9, 2004, the trial court denied the motion to suppress.
On February 24, 2004, the trial court conducted a hearing on Urenda’s motion to dismiss for failure to provide him with a speedy trial. Urenda testified that his former attorney did not keep him apprised of the status of his case. On one occasion, Urenda asked Mr. Henry what was taking so long. Counsel replied that they had to work around his busy schedule. Urenda changed attorneys because he did not want to enter a guilty plea but instead wanted a trial. He only told his attorney one time that he wanted a trial. He admitted that although he had met with his attorneys about “a hundred times,” he had never told them he wanted a speedy trial.
The court granted the motion by a written order signed on May 10, 2004. The trial court also entered findings of fact and conclusions of law. In those findings, the court concluded that Urenda had not consented to the continuances obtained by defense counsel. Further, the court found that the former attorneys were ineffective as a result of seeking continuances over Urenda’s objections and request for a speedy trial. The State timely filed its notice of appeal.
SPEEDY TRIAL
In its sole issue on appeal, the State complains that the trial court abused its discretion when it dismissed the indictment for failure to provide a speedy trial. The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution. Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184, 33 L. Ed. 2d 101 (1972); Ramirez v. State, 897 S.W.2d 428, 431 (Tex.App.--El Paso 1995, no pet.). When analyzing a trial court’s decision to grant or deny a speedy trial claim, we must balance four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his speedy trial rights; and (4) any resulting prejudice to the defendant. Barker, 407 U.S. at 530, 92 S. Ct. at 2191; Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994). None of the four factors alone is a necessary or sufficient condition to finding a deprivation of the right to a speedy trial. Barker, 407 U.S. at 533, 92 S. Ct. at 2193. We 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). This means that we independently weigh and balance the Barker factors, but we presume the trial court resolved any disputed fact issues in a manner that supports its ruling. Zamarano, 84 S.W.3d at 648; State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999).
Length of Delay
The length of the delay is measured from the time the defendant is arrested or formally accused. Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim.App. 2003); Emery, 881 S.W.2d at 708. To trigger a speedy trial analysis, the defendant has the burden of first demonstrating a delay of sufficient length to be considered presumptively prejudicial under the circumstances of the case. Barker, 407 U.S. at 530, 92 S. Ct. at 2192; Emery, 881 S.W.2d at 708. The defendant meets his burden by showing that the interval between accusation and trial has crossed the threshold dividing ordinary delay from presumptively prejudicial delay. Doggett v. U.S., 505 U.S. 647, 651-52, 112 S. Ct. 2686, 2690, 120 L. Ed. 2d 520 (1992). Only then does it become necessary to consider the other three factors in the Barker analysis. Emery, 881 S.W.2d at 708; Lott v. State, 951 S.W.2d 489, 493 (Tex.App.--El Paso 1997, pet. ref’d). In general, delay approaching one year is sufficient to trigger consideration of all the Barker factors. Shaw, 117 S.W.3d at 889.
Here, the delay between indictment and dismissal was five years and ten months and is sufficient to trigger an analysis of the remaining Barker factors. See Shaw, 117 S.W.3d at 889. Further, the delay stretched well beyond the bare minimum needed to trigger judicial examination of the speedy trial claim. Consequently, this factor weighs heavily in favor of finding a violation of Urenda’s right to a speedy trial. Dragoo v. State, 96 S.W.3d 308, 314 (Tex.Crim.App. 2003).
Reason for Delay
The State has the initial burden of assigning reasons to justify a lengthy delay. Dragoo, 96 S.W.3d at 314; Emery, 881 S.W.2d at 708. In examining the reasons for the delay, we accord different weights to various reasons. Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Dragoo, 96 S.W.3d at 314. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the State. Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Emery, 881 S.W.2d at 708. Valid reasons justify the delay and are not weighed against the State at all. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. And delay that is attributable in whole or in part to the defendant may constitute a waiver of the speedy trial claim. Munoz, 991 S.W.2d at 822. When the record is silent as to the reason for the delay, we may presume neither a valid reason nor a deliberate attempt to prejudice the defense. Dragoo, 96 S.W.3d at 314.
The State met its burden by producing substantial evidence showing that the overwhelming majority of the six-year delay is attributable to ongoing plea negotiations, continuances and re-sets obtained by the defense, Urenda’s decision to obtain a new attorney who required time to prepare a defense, and his objection to the visiting judge assigned to his case. These reasons for the delay are not weighed against the State. See Munoz, 991 S.W.2d at 824 (ongoing good faith plea negotiations is a valid reason for delay and is not weighed against the State); Shaw, 117 S.W.3d at 890 (continuances obtained by the defense not weighed against the State); Halbert v. State, 881 S.W.2d 121, 127 (Tex.App.--Houston [1st Dist.] 1994, pet. ref’d)(defendant changed attorneys causing delay, not weighed against State); Holmes v. State, 938 S.W.2d 488, 490-491 (Tex.App.--Texarkana 1996, no pet.)(in speedy trial analysis, re-sets at defendant’s request chargeable to defendant; defendant’s recusal of sitting judge causing delay not weighed against State).
Rather than following a large body of case law which requires that this factor be weighed heavily against Urenda, the trial court instead blamed the State for not objecting to the continuances sought by defense counsel. The State is not obligated to object to the continuances sought by the defense in order to have this factor weigh against the defendant. While the State has the burden of explaining the delay, it is not responsible for the actions of the defendant which result in a delay of the proceedings.
The trial court also concluded that Urenda had been denied the effective assistance of counsel by his first two attorneys, and therefore, the actions of his attorneys in causing the delay could not be imputed to or held against him. The trial court reached this conclusion without applying the standard enunciated in Strickland v. Washington and without any evidence regarding the rationale or reasoning behind counsel’s decisions.
The proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two-step analysis adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel’s performance was deficient, to the extent that counsel failed to function as the “counsel” guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Under the second prong, the defendant must establish that counsel’s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L.Ed.2d at 693; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771. When we review a claim of ineffective assistance of trial counsel, we must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable, professional assistance, and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W .2d at 771. If the record is silent as to the facts, circumstances, and rationale behind an attorney’s particular course of action, we are compelled to find that the defendant did not rebut the presumption that it was a reasonable course of action. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). Failure to make the required showing of deficient performance defeats the ineffectiveness claim. Id.
An attorney’s decision to seek a continuance is a matter of trial strategy. The burden was on Urenda, not the State, to establish by a preponderance of evidence that seeking continuances and delaying a jury trial was not a sound trial strategy. The record is silent with respect to counsel’s motivation or rationale for delaying the case. When the record does not show counsel’s reasons for requesting a continuance, a court may not speculate and must rely on the presumption that counsel’s action was based on trial strategy. See Brown v. State, Nos. 2-02-442-CR, 2-02-443-CR, 2003 WL 21940905, at *2 (Tex.App.--Fort Worth Aug. 14, 2003, pet. ref’d)(not designated for publication)(where record does not show counsel’s reasons for requesting continuance, appellate court may not speculate and must rely on presumption that counsel’s action was based on sound trial strategy). To conclude that trial counsel’s representation was deficient without a proper record exploring counsel’s trial strategy would require this court to speculate as to counsel’s motivation and reasoning, which we may not do. The trial court erred in concluding that Urenda rebutted the presumption that counsel provided effective assistance.
Further, there is no evidence to support the trial court’s finding that trial counsel sought continuances over Urenda’s objections or over an alleged request for a speedy trial. Urenda specifically testified that he never told his attorneys that he desired a speedy trial. The only occasion on which he told his attorney that he wanted a trial was when he rejected the final plea bargain offer in June of 2003. Urenda waited five years before telling his attorneys that he wanted a jury trial, and even then, he did not demand a speedy trial. In the absence of any factual support for the trial court’s findings, the court’s conclusion that Urenda was denied the effective assistance of counsel is unsupported by the record. We conclude that the delay must be held against Urenda. This factor weighs heavily against finding a speedy trial violation.
Assertion of Right to Speedy Trial
We next consider the defendant’s responsibility to assert his right to a speedy trial. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. Assertion of the right is entitled to strong evidentiary weight in determining whether the defendant was deprived of the right. Id. at 531-32, 92 S. Ct. at 2192-93. This failure weighs more heavily against the defendant as the delay gets longer; the longer the delay, the more likely a defendant who really wants a speedy trial would take some action to obtain it. Dragoo, 96 S.W.3d at 314. Conversely, a defendant’s failure to assert his right in a timely and persistent manner indicates strongly that he did not really want a speedy trial. Barker, 407 U.S. at 529, 532, 92 S. Ct. at 2193. Seeking a dismissal rather than a trial may attenuate the strength of a speedy trial claim. Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983).
Here, Urenda did not assert his right to a speedy trial for five years, and even then, he sought dismissal rather than a trial. Urenda’s motivation in requesting a dismissal rather than a prompt trial is relevant. See Phillips, 650 S.W.2d at 401. Because Urenda waited five years to assert his right to speedy trial and he requested dismissal rather than a prompt trial, his actions suggest that he did not really want one. See Barker, 407 U.S. at 529, 532, 92 S. Ct. at 2193; Dragoo, 96 S.W.3d at 314. As the Court of Criminal Appeals observed in McCarty v. State, “[I]t is fair to say his prime object was not to gain a speedy trial, but was an attempt to have the charge against him dismissed.” McCarty v. State, 498 S.W.2d 212, 215 (Tex.Crim.App. 1973). This factor also weighs heavily against finding a speedy trial violation.
Prejudice Resulting from Delay
Finally, we must determine whether Appellant suffered prejudice as a result of the delay. In some cases, the delay may be so excessive so as to be presumptively prejudicial. Guajardo v. State, 999 S.W.2d 566, 570 (Tex.App.--Houston [14th Dist.] 1999, pet. ref’d), citing Doggett v. United States, 505 U.S. 647, 654-57, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). A four-year delay is presumptively prejudicial. Zamarano, 84 S.W.3d at 654. However, a defendant’s acquiescence in that delay attenuates the presumption, and as with any legal presumption, it can be overcome. Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 315. Further, even in the case where the delay is presumptively prejudicial, the defendant must nevertheless show that he has been prejudiced by the delay. Id. Once the defendant has made such a showing, the burden shifts to the State to refute it. Id.
Prejudice must be assessed in light of the interests which the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. Of these three, the most serious is the last because the inability of the defendant to prepare a defense skews the fairness of the entire system. Id. Affirmative proof of prejudice is not essential to every speedy trial claim because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify. Doggett, 505 U.S. at 655, 112 S. Ct. 2686.
While the six-year delay is presumptively prejudicial, nearly all of the delay is attributable to the defense. Therefore, the presumption of prejudice is significantly attenuated. When we examine the prejudice factors identified by Barker, we conclude that Urenda failed to establish prejudice. Because Urenda has remained free on bond throughout the pendency of his criminal case, we are not concerned with oppressive pretrial incarceration. At the hearing, Urenda testified that he suffered anxiety during the pendency of his criminal case. Yet he offered no evidence that the delay had caused him any unusual anxiety or concern, i.e., any anxiety or concern beyond the level normally associated with being charged with a felony sexual crime. See Shaw, 117 S.W.3d at 890. Finally, with respect to the third interest, we must presume that the lengthy delay adversely affected Urenda’s ability to defend himself, but this presumption is substantially weakened by Urenda’s actions in not only acquiescing in the delay but actually having caused the majority of it. See Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 315.
Urenda’s efforts to show prejudice at the hearing were ineffectual. Defense counsel argued that Urenda’s defense had been prejudiced by the delay because he not been able to obtain the traffic citation issued to Luis Bouche or the police radio broadcasts from his arrest. Defense counsel argued that this evidence was relevant to the suppression motion, a matter which had already been heard and denied, because it could be used to illustrate that the officers lacked probable cause and were lying about the reason for stopping Bouche. Defense counsel did not seek discovery of the recorded dispatch communications until after the first suppression hearing, and even then, he did not obtain a ruling on his motion. Defense counsel did not attempt to discover the traffic citation until after the second suppression hearing had concluded. Further, he did not obtain a ruling on his motion. Under these circumstances, Urenda did not show that the items were lost due to the delay, and therefore, he has not shown prejudice. Consequently, this factor weighs against finding a violation of his right to a speedy trial. See Shaw, 117 S.W.3d at 891 (defendant failed, in context of speedy trial claim, to demonstrate any actual prejudice arising from 38-month delay between indictment and second trial; defendant was out on bond at all relevant times, he offered no evidence that delay had caused him any unusual anxiety or concern, and presumption of prejudice was extenuated by defendant’s longtime acquiescence in the delay).
Weighing the Barker Factors
The only factor weighing heavily in favor of a speedy trial violation is the excessive length of the delay. The second and third factors, however, weigh heavily against finding a speedy trial violation. The majority of the delay is attributable to Urenda, who did not assert his right to a speedy trial for five years and even then sought dismissal, not a prompt trial. While there is a presumption of prejudice due to the excessive delay, it is extenuated because Urenda caused the delay. Because Urenda did not establish any actual prejudice resulting from the delay, the fourth factor also weighs against Urenda. Consequently, we conclude that the weight of the four factors, balanced together, is against finding a violation of Urenda’s right to a speedy trial. See Barker v. Wingo, 407 U.S. at 534, 92 S. Ct. 2182 (where defendant was not seriously prejudiced by five-year delay between arrest and trial and he did not really want a speedy trial, his right to a speedy trial was not violated); Shaw, 117 S.W.3d at 891 (delay of thirty-eight months between indictment and defendant’s second trial did not violate constitutional right to speedy trial; while delay was excessive and State offered no valid reason for most of delay, defendant failed to assert speedy trial right until twenty-nine months after first trial and waited another six months before seeking a hearing to enforce that right, and he also failed to demonstrate any prejudice resulting from delay); Dragoo, 96 S.W.3d 308 (where defendant demonstrated no serious prejudice by 3 1/2 year delay between arrest and trial and he waited until just before trial to assert his right to a speedy trial, his right to a speedy trial was not violated); Phipps v. State, 630 S.W.2d 942, 946 (Tex.Crim.App. 1982)(where defendant demonstrated no prejudice by four-year delay between arrest and trial and he waited until one month before trial to assert his right to a speedy trial, his right to a speedy trial was not violated). The State’s sole issue is sustained and the trial court’s order dismissing the indictment is reversed. The cause is remanded to the trial court for a speedy trial.
August 4, 2005
ANN CRAWFORD McCLURE, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)