In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-01-138 CR
____________________
DENNIS WAYNE BRUTON, Appellant
V.
THE STATE OF TEXAS, Appellee
Jefferson County, Texas
Trial Cause No. 76060
The lone issue in this appeal is whether the trial court erred in denying appellant's pretrial motion to dismiss for lack of a speedy trial in violation of the Sixth Amendment to the United States Constitution. Texas courts follow the guidance of the United States Supreme Court when interpreting the federal constitution and the rights thereunder. State v. Guzman, 959 S.W.2d 631, 633 (Tex. Crim. App. 1998). Issues as to authoritative laws, rules and remedies designated to secure federally-guaranteed rights are federal questions. Chapman v. California, 386 U.S. 18, 21, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the Supreme Court listed four nonexclusive factors to be equally weighed in determining whether an accused has been denied his right to a speedy trial. Said factors include the length of the delay between the time a person has become "an accused," see United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 30 L. Ed. 2d 468, 474 (1971), and the time of trial; the reason provided by the State for the delay; the accused's assertion of the right; and the prejudice to the accused resulting from the delay. Barker, 407 U.S. at 530, 92 S. Ct. 2182, 33 L.Ed.2d at 117. The weight of the prejudice factor was examined in detail in the Court's subsequent case, Doggett v. United States, 505 U.S. 647, 654-58, 112 S. Ct. 2686, 120 L. Ed. 2d 520, 529-32 (1992). Indeed, the following somewhat startling observation is taken from the Doggett opinion:
Barker explicitly recognized that impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony "can rarely be shown." 407 U.S., at 532, 33 L. Ed. 2d 101, 92 S. Ct. 2182. And though time can tilt the case against either side, see id., at 521, 33 L. Ed. 2d 101, 92 S. Ct. 2187; Loud Hawk, supra, 474 U.S. at 315, 88 L. Ed. 2d 640, 106 S. Ct. 648, one cannot generally be sure which of them it has prejudiced more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, see Loud Hawk, supra, at 315, 88 L. Ed. 2d 640, 106 S. Ct. 648, it is part of the mix of relevant facts, and its importance increases with the length of delay.
Doggett, 505 U.S. at 655-56, 112 S. Ct. 2686, 120 L.Ed.2d at 530-31.
In Doggett, an 8½ year delay was the factor that essentially carried the day as there was virtually no specific prejudice shown, only a generalized discussion concerning the possibility of "oppressive pretrial incarceration," "anxiety and concern of the accused," the possibility of an impaired defense by the "dimming of memories and loss of exculpatory evidence," see id. at 654, 112 S. Ct. 2686, 120 L.Ed.2d at 529-30; and the government's explanation for the delay was attributed to its negligence, and not to bad-faith. Id. at 656-57, 112 S. Ct. 2686, 120 L.Ed.2d at 531. Furthermore, the lack of an invocation of the right by the accused in Doggett was not held against him as the undisputed evidence indicated that the accused knew nothing of the charges until he was arrested some 8½ years after being indicted. Id. at 650, 653, 112 S. Ct. 2686, 120 L.Ed.2d at 527, 529.
In the instant case, we agree with the refreshingly candid concessions in the State's brief that the first three Barker factors weigh in favor of appellant. The pretrial delay, in excess of two years, (1) is presumptively unreasonable. See Doggett, 505 U.S. at 652 n. 1, 112 S. Ct. 2686, 120 L.Ed.2d at 528 n. 1. Additionally, the record reflects no attempt by the State at the "hearing" to explain or account for the delay. (2) Finally, the State correctly notes that appellant did assert his right to a speedy trial through various letters inquiring of any pending charges, and of having any pending charges disposed of in a "timely manner."
Nevertheless, we are faced with an absolutely silent record regarding the fourth factor. We find nothing to indicate how the delay prejudiced appellant. In his brief, appellant contends that during the "hearing" on the motion to dismiss, the State remarked, "no one will admit or can remember what happened." Yet, appellant takes these words out of context as the record reflects that the prosecutor was merely quoting from paragraph five of appellant's motion to dismiss, which alleges the following:
Defendant has been harmed by this failure to furnish him knowledge and/or legal assistance in that evidence of what transpired at the time of arrest have become virtually non-existent. No one will admit or can remember what happened therefore, defendant cannot foster an effective defense since such defense involved promises made by law enforcement personnel whose memories have become dull or void. . . . (emphasis added)
The two year, six month delay in the instant case does not approach the "egregious" 8½ year delay in Doggett. As the Doggett Court noted, toleration of "official negligence," with which we are faced, varies inversely with its protractedness, and its consequent threat to the fairness of the accused's trial. Id., 505 U.S. at 657, 112 S. Ct. 2686, 120 L.Ed.2d at 532. While the official negligence in the instant case is protracted, though not excessively so, no consequent threat to the fairness of appellant's defense is present in the record before us. (3)
An appellate court must review a trial court's ruling in light of what was before the trial court at the time the ruling was made. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Appellant mentions that, prior to his indictment in the instant case, he provided written statements to both Jefferson County and Hardin County authorities concerning burglaries he had been involved in. Yet, all of the evidence concerning the statements and possible "deals" or agreements allegedly made by the police personnel who took appellant's statements is contained in the record of the punishment hearing following appellant's plea of guilty to the instant offense. The punishment hearing took place over three months after appellant entered his guilty plea. The trial court's denial of appellant's motion to dismiss occurred immediately before he entered his guilty plea in the instant case. As such, none of the evidence concerning the statements or any alleged "deals" was before the trial court at the time of the "hearing" on appellant's motion to dismiss for lack of a speedy trial. We therefore find no abuse of discretion by the trial court in denying appellant's motion to dismiss. Issue one is overruled. The judgment and the sentence are affirmed.
AFFIRMED.
PER CURIAM
Submitted on April 11, 2002
Opinion Delivered May 22, 2002
Do Not Publish
Before Walker, C.J., Burgess and Gaultney, JJ.
1. The delay period ran from the day appellant was indicted, February 19, 1998, 2. Indeed, we use the term "hearing" quite loosely as no testimonial evidence was
elicited. The proceeding consisted of the trial court perusing appellant's motion to dismiss
and the accompanying attachments, occasionally quoting from the various documents. It
is unclear if the State was even aware that after the delay of over two years was recognized
by the trial court, the State was required to give an explanation for the delay. As the
3. The record before us is woefully lacking in solid support for the position of either
party, considering the fact that the issue before us concerns an explicit