In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-05-254 CR
____________________
THE STATE OF TEXAS, Appellant
V.
TERRI LYNN DORNBURG, Appellee
Montgomery County, Texas
Trial Cause No. 04-10-08405
The State prosecutes this appeal from an order granting appellee Terri Lynn Dornburg's motion to dismiss for failure to provide Dornburg with a speedy trial in violation of both the United States and Texas Constitutions. See U.S. Const. amend. VI; Tex. Const. art. I, ยง 10. The resolution of the issues before us, as is typical in most appeals involving a speedy trial matter, requires a careful examination of the historical facts of the particular prosecution. In the instant case, the general theory of prosecution involved allegations that Dornburg, while an assistant district attorney, agreed to dismiss, in exchange for money, certain misdemeanor cases against defendants represented by her husband, a local criminal defense attorney. Both Terry Dornburg and her husband, Brent Dornburg, ("Brent") were eventually indicted, with appellee being initially indicted for the offenses of bribery and tampering with a governmental record, and later re-indicted only for the offense of bribery.
On appeal, the State contends the trial court abused its discretion in granting the motion to dismiss because appellee contributed to the delay, failed to timely assert her right to a speedy trial, and failed to show actual prejudice resulting from any delay. The State's complaints are taken from the detailed speedy trial analysis constructed in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The Barker Court made the following observation, the significance of which should become apparent as this opinion progresses: (1) The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system.
. . . .
A second difference between the right to speedy trial and the accused's other constitutional rights is that deprivation of the right may work to the accused's advantage. Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof. Thus, unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself.
Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. . . . There is nothing comparable to the point in the process when a defendant exercises or waives his right to counsel or his right to a jury trial. Thus, as we recognized in Beavers v. Haubert, supra, [198 U.S. 77, 25 S. Ct. 573, 49 L. Ed. 950 (1905)] any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case: 'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice." 198 US, [sic] at 87, 49 L. Ed. at 954.
Barker, 407 U.S. at 519-22, 92 S. Ct. 2182, 33 L.Ed.2d at 110-12. (emphasis added)(footnotes omitted).
Since Barker, reviewing courts have been analyzing federal constitutional speedy trial claims "on an ad hoc basis" by weighing and then balancing four factors: 1) length of the delay, 2) reason for the delay, 3) assertion of the right, and 4) prejudice to the accused. Barker, 407 U.S. at 530; State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). This balancing test requires a case-by-case weighing of "the conduct of both the prosecution and the defendant." Barker, 407 U.S. at 530; Munoz, 991 S.W.2d at 821. No single Barker factor is a "necessary or sufficient condition to the finding" of a speedy trial violation. Barker, 407 U.S. at 533. These four factors "must be considered together with such other circumstances as may be relevant." Barker, 407 U.S. at 533; Munoz, 991 S.W.2d at 821.
"An appellate court reviewing a trial court's ruling on a motion to dismiss for want of a speedy trial must do so in light of the arguments, information, and evidence that was available to the trial court at the time it ruled." Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003) (citing Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003)). The appellate court must uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. Shaw, 117 S.W.3d at 889 (citing Munoz, 991 S.W.2d at 821). Because appellee prevailed on her speedy trial motion, "we must presume the trial court resolved any disputed fact issues in appellee's favor, and we are required to defer to these implied findings of fact that the record supports." See Munoz, 991 S.W.2d at 821.
A proper discussion of the issues presented requires reproducing the procedural background of appellee's prosecution and selected excerpts from hearings on pretrial motions.
PROCEDURAL HISTORY
April 30, 2002 -- Appellee is indicted for Tampering With Governmental Record and Bribery (Trial Cause Nos. 02-04-02884-CR & 02-04-02885-CR).
May 1, 2002 -- Judge Alworth signs personal recognizance bond in the Bribery cause. (2)
June 18, 2002 -- Trial counsel files written notice of representation in both causes.
June 20, 2002 -- Appellee files written motion to determine the validity of the May 2002 appointment of the attorney pro tem.
June 26, 2002 -- Trial court's scheduling order contains the following settings: August 14, 2002, for hearing-date for pretrial motions; October 9, 2002, for docket call; October 14, 2002, for first trial date.
October 31, 2002 -- In both causes, State files "Motions, Pleas and Announcements Notice" listing a new date for pretrial motions as "February 12, 2003."
October 12, 2004 -- Appellee is re-indicted for Bribery with new trial cause number of 04-10-08405-CR.
October 13, 2004 -- Appellee files "Unopposed Motion To Transfer Bond" under new bribery cause.
October 13, 2004 -- In new bribery cause, a "Scheduling Order" is filed, setting "October 20, 2004," for appellee's arraignment in re-indicted cause.
October 20, 2004 -- State files motions to dismiss cause numbers 02-04-02884-CR and 02-04-02885-CR, with the trial court's granting the motions on that date.
October 20, 2004 -- Trial court signs and files "Discovery Order" in re-indicted cause, with the State to furnish the listed discovery to appellee on or before November 3, 2004.
October 20, 2004 -- In re-indicted cause, trial court files "Scheduling Order" listing the following settings: January 12, 2005, for docket call; January 18, 2005, as date of trial.
December 16, 2004 -- Appellee files "Joint Motion For Continuance," requesting to reset the docket call to April 6, 2005, and requesting to reset the date of trial to April 25, 2005. Trial court grants this motion and resets the cause to the dates requested.
March 31, 2005 -- Appellee files written "Request For Notice" motion, requesting the State provide notice of intent to use extraneous act/offense evidence during guilt/innocence and punishment phases of trial.
April 6, 2005 -- Appellee files "Motion For Continuance," alleging that discovery is ongoing and incomplete at that time, so that any pretrial motions and further preparation for trial "must await this important discovery." Trial court grants motion, and lists the following resetting dates: May 4, 2005, for pretrial motions; May 16, 2005, for docket call; May 24, 2005, as new trial date.
April 29, 2005 -- Appellee files four written motions: "Motion To Transfer Motions"; "Motion To Recuse And Or Disqualify The Montgomery County District Attorney, And All Members Of His Staff, From Participation In This Case"; "Motion For Discovery," and "Motion To Dismiss Due To Violation Of Terri Lynn Dornburg's Right To A Speedy Trial." Trial court grants appellee's speedy trial dismissal motion, resulting in the instant appeal.
PRETRIAL HEARINGS
Before us are hearings that took place on April 6, 2005, May 4, 2005, May 10, 2005, and May 11, 2005. It was at the conclusion of the hearing on May 11, 2005, that the trial court granted appellee's motion to dismiss for lack of a speedy trial, and dismissed her pending bribery indictment. As noted above, appellee was initially indicted on April 30, 2002, and re-indicted on October 12, 2004. While the hearings of May 4, 2005, and especially May 10, 2005, addressed appellee's speedy trial motion, we find the arguments contained in the April 6, 2005, hearing significantly probative for use in our later application of the Barker balancing test.
Recall from the pretrial chronology that on April 6, 2005, appellee filed a motion for continuance. A motion for continuance had also been requested by appellee's husband, Brent, as his case was also pending at the time. Therefore, the hearing conducted on April 6, 2005, was intended by the trial court to address both requests for continuance. Trial counsel for both appellee and Brent jointly addressed the merits of the motions. We find the following excerpts from the April 6, 2005, hearing to be directly pertinent to certain factors in the Barker balancing test:
THE COURT: I have required a hearing on a motion for continuance that was filed in two motions. One filed in each case. Mr. Nugent has filed one on behalf of Brent Dornburg, and this was filed, I think, this morning. It has the file stamp on it. And the second was filed on behalf of Terri Lynn Dornburg by Mr. DeGeurin and the State has received copies of those motions.
. . . .
THE COURT: Okay. My is [sic] concern is that this case - - actually, I did not know that this case was even in my court for what amounted to almost two years' time because nothing had happened on this case. We don't set our criminal dockets here, and so - - actually, it's a reindictment so it carries a cause number with a 04, but it was an older case than that. And until it appeared [sic] on a motions docket, I didn't realize that I even had this case pending in the court. We have since appointed a special prosecutor. We've gotten everybody in line, I think. I need to know why we need a continuance in this case. Why you are asking for one, Mr. Nugent, for Mr. Dornburg? The trial date we have I believe is April 25th. Is that correct? We're set for trial on that Monday.
. . . .
MR. NUGENT: Judge, if I may point out, Mr. Dornburg was not recharged. He was initially charged in '04 in October of '04.
THE COURT: That was his original indictment then - -
MR. NUGENT: That's correct, Your Honor.
THE COURT: I guess they reindicted Ms. Dornburg from - -
MR. NUGENT: Correct.
THE COURT: - - from 02 - 04. So it was reindicted from April '02 original indictment. Okay. Mr. Nugent, on behalf of Mr. Dornburg.
MR. NUGENT: Yes, Your Honor. We have been working diligently going through the discovery. Mr. Wilson [State's attorney pro tem] has made the discovery available. We have spent literally days and days and days at the D.A.'s office here where Mr. Wilson made the material available. We've gone through the material that's been made available. Mr. DeGeurin, speaking with Mr. Wilson, I believe, this week - - and we've been working together, Your Honor - - Mr. DeGeurin learned this week that - - from Mr. Wilson, that there are some additional discovery that Mr. Wilson didn't have yet; and I have not seen that yet, so there is still additional discovery. This is, of course, a very serious case. And before I can intelligently file appropriate motions, I need to have gone through all the discovery and there were reports that Mr. Wilson didn't have available yet. He's agreed with Mr. DeGeurin to make everything available, so we're still going through discovery. We've been diligent, in my opinion, Your Honor. We've made numerous trips up here and sat down and gone through the material. But there is additional material, and until we go through that, we, of course, can't render effective assistance of counsel and certainly can't announce ready for trial before we've seen critical and relevant discovery so that's why I'm asking for a continuance, Your Honor.
THE COURT: Okay. Based on the case law that I have before me - - and, of course, we all know that Article 29.01 of the Code of Criminal Procedure, would allow - - or 29.03 for sufficient cause shown, that this continuance would be granted. I'm looking at every case that I've been able to pull from the early Twenties. A motion for continuance, you both understand, all understand, is not a matter of right like other motions. It depends on the surrounding circumstances of the case as well as upon other matters of diligence. I need to know specifically - - you have alleged in Paragraph 2 some kind of report, Mr. Bluestein's report. I don't know what that is.
MR. DEGEURIN: May I address that, Your Honor?
THE COURT: Well, we can - - we'll hear both motions then at the same time probably unless there is any reason that anyone can see not to.
MR. NUGENT: I have no objection to arguing these together, Your Honor.
THE COURT: Any problem, Mr. Wilson?
MR. WILSON: No, Your Honor.
THE COURT: Okay. Mr. DeGeurin?
MR. DEGEURIN: Your Honor, one of the reasons that this case, these cases now, have had the history that you've been made aware of starting a long time ago, is that Mr. Bluestein in the district attorney's office here began an investigation and headed up the investigation of Terri Lynn Dornburg. And there was a misstep in the beginning by the Attorney General's office came [sic] in and county shared responsibility with the D.A.'s office in some initial investigation and an initial indictment. Thereafter, it was determined that it - - that needed work and the Attorney General's office was really not available anymore for various reasons and so Mr. Terry Wilson was then appointed. So that really kind of began with the today [sic] cases that you have.
Now, Mr. Bluestein was attending the original hearings even though the Attorney General's office was here also. Then at the point that Terry Wilson became involved, Mr. Bluestein backed away and left only the D.A.'s office an investigator, Mr. Stevenson, to aid Mr. Wilson. It's Mr. Bluestein's report which is - - concerns the statements made by the defendant, Terri Dornburg, and statements made by the defendant, Brent - - Brent - - that was missing from the file when the discovery process was being conducted. That was an inadvertent thing on the part of Mr. Wilson. We've been up here for three days, so what we end up with, Your Honor, a long story short, is on the eve of trial we still don't have even the defendant's statements. And because these two cases may very well be tried together, or tried separately, even decisions with regard to the order of trial and the motions that are necessary could not even be addressed until that report was made available.
Mr. Wilson started asking around about the report. Thought he had it himself, and he did not have it with him. And learned only - - we learned yesterday that he was going to obtain it from either his own home where he had it or his office or Mr. Stevenson was going to get it for him. So it is absolutely an essential piece. It's not just a piece of discovery. It is the most important part of the discovery with regard to our legal planning, strategy, and preparation for pretrial motion. We have now, as I understand it, today, been handed the report. We haven't read it yet.
THE COURT: You have the report then?
MR. DEGEURIN: We do have the report today.
THE COURT: Mr. DeGeurin, with all respect, I can't imagine that a gentleman of your experience in criminal law needing such an essential report, would have waited until this point to ask this court for some help in getting that report.
MR. DEGEURIN: Well, Your Honor, that's a good point; but what is, in today's time, informal discovery, sometimes go further than what the Court could order as a matter of law. Although, I could argue this entire report is necessary as a matter of law, it is not only Mr. Bluestein's thoughts and agenda, stuff like that, but, in addition to including the statements of the defendant. So I could envision a hearing where the Court could say in the end, well, you can give them the statements attributed to the defendants, but I cannot order, Mr. DeGeurin, that you get the whole report. You will have to wait until trial and then we would be in a whole another ball. We would have to file a bunch of unnecessary motions and severances and things like that. So there is some benefit, especially where the clients are not in custody, and they are not a threat to the community while awaiting trial, and it is not opposed by the State, there are some times that it's a benefit to have the informal discovery. That's why we haven't burdened you with a motion.
THE COURT: Anything further, Mr. Nugent? The motions for continuance are identical except for the names of the defendants as far as I can tell, so it seems that you might be arguing the same facts.
MR. NUGENT: Yeah, I won't replow the ground that Mr. DeGeurin has plowed, Your Honor; but I would add that we can't intelligently and professionally file appropriate case specific pre-trial motions until we've gotten all the discovery. And my understanding now is that we now have received all the discovery. We've learned today that there is about 1200 pages of documents have been filed in the Clerk's office. We were given notice today. There is 65 pages, 263 pages, 808 pages, so something over a thousand pages have been filed today. We'll, of course, need to go through those thousand pages. We'll need to go through the statements that we've just gotten today and then decide what motions are appropriate and file those with Your Honor, and we have been working diligently. We've spent over a week at the office up here and we're talking all day going through reports and information that Mr. Wilson has made available. We had assumed that that was everything; and I think Mr. Wilson had assumed that was everything and it was only this week that Mr. DeGeurin and Mr. Wilson realized that there were some important information that, for whatever reason, inadvertently had not been made available. So, we have been working diligently. This is our first trial setting, and I would like to render effective assistance of counsel to my client, Brent Dornburg, and I would respectively ask for time to go through the 1100 pages that have been filed, to go through the reports that have been provided today, file the appropriate motions, then ultimately have our day in court before Your Honor when we've had time to prepare.
THE COURT: Any response, Mr. Wilson?
. . . .
MR. WILSON: Your Honor, I'm not going to oppose their motion. There is a lot of material. They have had a lawyer that spent a lot of time up here looking at it, so I can understand that. I apologize to the Court for the report not being in the file. I thought it was there, but it was in a different file, had not gotten copied from the discovery file. The stuff that was filed with the clerk today is bank records of the defendants, and it is obviously from the number of pages that was cited to the Court, extensive amount of bank records. Most of it not relevant to this case because it's, you know, the typical circumstance where you file a whole bunch of bank records or over a period of time, bank records with all the checks that were written and that kind of thing. But I'm not going to oppose their continuance because I think if we have a little time to work together, there may be some things that we can agree on that we might cut out a few witnesses and make this process a little more expedited for the court.
. . . .
THE COURT: Okay. Mr. Nugent and Mr. DeGeurin, what kind of time are you asking? You've got the report there on your counsel table here in the courtroom. Mr. Wilson, is that the only report from David Bluestain that you know exists?
MR. WILSON: Yes, ma'am. That's the only report. There are some tape recordings they've asked about of other people who primarily know nothing. . . .
. . . .
MR. DEGEURIN: Your Honor, my suggestion would be - - and I'm doing this cautiously - - since there are now I know some tapes that, yes, we do want to come listen to them. It's not a waste of time on our part, I don't think. Those tapes are very important. If we would - - have if we could reset this 45 days to complete - - by the way, Your Honor, I just thumbing through, I'm noticing a number of people that now need to be interviewed that we haven't interviewed, and that's leaving the office going and trying to making [sic] arrangements.
THE COURT: You have investigators who can help do that, too. Is that correct?
MR. DEGEURIN: You don't know me, Judge.
THE COURT: You don't use them.
MR. DEGEURIN: Not for interviewing witnesses.
THE COURT: Okay. So at 45 days, I'm going to - - where is our - - do we have a list of next trial dates?
MR. DEGEURIN: For a final motion hearing is what I'm thinking at that time.
. . . .
THE COURT: . . . I'm going to grant the motion for continuance only because I feel that the matters contained in Mr. Bluestein's report are of such a nature that it effects [sic] the ability of Mr. Nugent and Mr. DeGeurin to represent their clients effectively; however, I am not going to continue it for 45 days just for the motions. I am going to give you until May 4th for your motions to be filed. That is almost a month. Then we will have - - I'm going to have a call docket where we will announce ready. I'll just make this myself on May 16th and trial on May 23rd. So your dates are that by May 4th, your motions will be heard that day. You will have to get them filed. Give notice to the other side. We will have a motions hearing that afternoon. . . .
The lengthy recitation above from the April 6, 2005, continuance hearing exposes an inconsistency regarding appellee's speedy trial claim in light of subsequent events. At some point during the twenty-three day period from the April 6 continuance hearing to April 29, 2005, the date appellee filed her speedy trial dismissal motion, trial counsel did an "about-face" on the necessity for a forty-five day continuance for extensive discovery and pretrial motions preparation. Recall that during the April 6 continuance hearing, when confronted by the trial court with the concern for further delay in appellee's prosecution, trial counsel pleaded that vital discovery was still on-going and that only more time would permit him to file legally effective pretrial motions benefitting appellee. Apparently, on April 6, 2005, a further forty-five day delay would work in appellee's favor as no employment hardships, stress, anxiety, or any other difficulty was acknowledged by trial counsel on appellee's behalf from further postponement. Yet, as will be quite apparent from hearing-excerpts reproduced below, especially appellee's testimony at the May 10, 2005, hearing, during almost the entire three years preceding the filing of the speedy trial dismissal motion, appellee's life, and that of her family, was essentially in a state of devastation.
At the first hearing addressing appellee's speedy trial motion, conducted on May 4, 2005, appellee's trial counsel advanced a markedly different position from that presented to the trial court at the April 6, 2005, continuance hearing - - less than one month before. At the April 6 hearing, appellee requested a continuance, while on May 4, she argued the delay in putting her to trial violated her speedy trial right. At the May 4 hearing, the State was permitted to attempt to explain the delay in prosecuting appellee. The trial court also reminded trial counsel of its concern regarding any further trial delay. The more pertinent exchanges from the May 4, 2005, hearing are reproduced as follows:
THE COURT: All right. Any response, Mr. Wilson?
MR. WILSON: Yes, Your Honor. If I could find it just a second. Your Honor, Ms. Dornburg was indicted by the Attorney General's office personnel who were operating under the auspices of the local district attorney system here. That indictment occurred back in 2002. Some time passed after that indictment and I was appointed as attorney pro tem to take over the case. At that point in time, I looked at the indictment, saw that I did not believe that I could proceed to trial under that indictment and was - - it was suggested that I proceed to investigate and prosecute the case so I began the investigation.
In order to do that, we spent months reviewing all of - - finding first and then reviewing every dismissal of a misdemeanor in this county over a period of three years. We then proceeded to subpoena bank records of - - for four or five different people, and ten different bank accounts, and to this day, we still don't have all those bank records. We have repeatedly dealt with the banks and whatnot. We proceeded with this. We hired an outside expert to sort the bank records for us and go through them to speed up the process. We've done that. And in terms of the motion for discovery, that might be my one expert witness that I might call. I don't know yet whether I will. But I will provide counsel with a copy of her information that she's given us.
The case was then presented to the Grand Jury and indicted. It was done within the statute of limitations of the original offense, and it was done as expeditiously as we could under the circumstances.
THE COURT: So it was reindicted in October of '04?
MR. WILSON: It was myself and one investigator, Mr. Stephenson, who had to review all of those files, talk to the - - find and then talk to the witnesses. In many cases, the persons who had the DWI cases or the whatever kind of cases they were, go find them and talk to them, maybe review their bank records, things of that nature, to work up to the point of taking this case to Grand Jury.
. . . .
THE COURT: Mr. DeGeurin, I think it was this Court's anxiety that first raised some attention. Literally, in September at a - - I had a conversation with another judge wondering what had happened ever to the Dornburg case because I had not - - I heard those splashy headlines. Then I had not seen a single thing. I literally did not know in September of 2004 that that case was sitting in my own court.
MR. DEGEURIN: I know.
THE COURT: Had no idea.
MR. DEGEURIN: I know.
THE COURT: And when this group came together in October and there was a new indictment coming down, and - - October 20th, and you appeared and Terri Lynn Dornburg appeared. There was an arraignment and a plea entered. I was absolutely appalled and I expressed this probably in chambers about how unhappy I was that I had no idea that this case was even sitting here because it hasn't followed the normal route that it would through the Montgomery County DA's office, and was not totally disposed of within six months tops for our cases that come down from indictment to trial, or at least arraignment to trial. I was appalled that it had been so long. One of the moments when I was most appalled was in December when you joined in with a joint motion for continuance to move the trial date some. And that's when I said absolutely this date that we are heading to now is it. That is it because I am appalled at the time that had passed that I did not know that this case was sitting in my own court and the time that nothing had been done on the case from either side until that point when we put a scheduling order into place and got this thing rolling and went forward. So there was no one who expressed probably more anxiety than this own judge did at what was happening; however, it was at that occasion that you, yourself, were joining in a motion for continuance to get a new date here. And I think - - let's see. One of the reasons was - - I have the joint motion here. It was set for April but discovery was ongoing and incomplete at this time.
MR. DEGEURIN: There had been none at that time.
THE COURT: Mr. Bluestein's report was inadvertently not in the file which was provided to defense counsel. This was your motion for continuance on April 6th, actually. This one came down. So there was an earlier one in December. Here we go. That was a joint motion asking on December 16th - - it was set, then, for January; and counsel for both of these - - let's see - - have agreed for whatever reason to continue this case. And I'm sure that you must have told me something that isn't in this motion because somehow I found good cause to allow both of you, and you signed off on the bottom - - agreed with Terry Wilson and Mike DeGeurin to move the case to the April setting.
MR. DEGEURIN: Your Honor, I agree --
THE COURT: So it's a hard thing for me to hear. I think at one point --
MR. DEGEURIN: Why would it take two and half to three years to indict the case after it had been indicted?
THE COURT: Right. Well, I have been - - it's been explained that there was serious problems with that indictment, and I don't know that. I don't know what the other one looked like. I haven't even seen that. But I know that you, yourself, were urging a motion for continuance moving it even further down on two occasions we had that motion. So I'm hard pressed to find that there was much anxiety on your side. I mean, your client is a human being, and I understand that. But your argument is hard to take because you were behind some of those motions for continuance.
MR. DEGEURIN: Your Honor, you're hitting the nail right on the head, and I can hardly wait to express my thoughts about this. That's why I say you have to go back to July [sic] something 2002 when the indictment was brought and we start to worrying about a trial. Right. And the public accusation, the anxiety, and what happens? Bluestein comes in and says we're going to dismiss that indictment. The day it came here, we're going to dismiss it, so we can't file a motion for speedy trial. We can't - - we're sitting there going, okay. Then we get a new attorney. Bluestein is still involved, but we get a new attorney. And by - - first of all, the first indictment - - remember, Judge, the indictment they had done all the investigation and brought an indictment. They had already done that. And then they didn't like that indictment. They brought in a new attorney.
Now, that's 2002, for, what, three years, they are looking at bank records? Come on. That's - - what could the defense do at all? We have already been told and this court was told and Judge Keeshan was told and Judge Alworth was told this indictment is going to be dismissed in 2002.
THE COURT: When was that dismissed, the other, the first - -
MR. DEGEURIN: It wasn't finally dismissed until they brought the new indictment two and a half years later.
. . . .
MR. DEGEURIN: So what makes this case different from most [sic] the ones that you see, Judge, is the very fact that goes back to this attorney pro tem thing. It's the very fact that you go public. She accepted a bribe. And then tell us the same day we're going to dismiss it.
. . . .
MR. DEGEURIN: So we can't start at 2004. We've got to - - that's when it got on your clock and we asked for continuances before you.
THE COURT: What happened to those indictments should have happened to those indictments, and they were dismissed and so those are gone and now - -
MR. DEGEURIN: Same charge, same conduct.
THE COURT: But we are barely six months later, seven months, tops. Okay. Mr. Wilson.
MR. DEGEURIN: The clock - - quote, the clock begins, for the purposes of the speedy trial analysis, when the defendant became the accused, either charged or arrested. That's 2002. I hadn't finished presenting my motion but if he wanted - -
THE COURT: But, Mr. DeGeurin, what would have happened at that point had you urged that at that point, those indictments would have been dismissed.
MR. DEGEURIN: I don't know.
THE COURT: You would have received - - that would have been the best you could have hoped for. The most serious sanction that could have happened to the State for not proceeding faster would have been a dismissal of the indictments, and that's what happened on October 20th of '04.
MR. DEGEURIN: You mean if I had waited a couple of years and then filed a motion to dismiss the case that they said there were going to dismiss anyway?
THE COURT: No. At any time along that time you had moved or complained of the length of time that it took them to get to trial from the original indictment or from whichever point you are going back to.
MR. DEGEURIN: Because they told me they were going to dismiss the case. What am I going to do? Ask the judge to dismiss the case. They say, DeGeurin, we are going to dismiss the case.
THE COURT: You could have made the same motion that you are making now.
MR. DEGEURIN: No, I don't think I could. How could I have done that?
. . . .
THE COURT: . . . Mr. Wilson, any response?
MR. WILSON: Yes, Your Honor, I would point out to the Court that counsel filed his first motion for speedy trial [sic] on the - - last Friday. The Court is hearing it at this time, and it's set for trial in two weeks.
MR. DEGEURIN: Not a Motion for Speedy Trial, Motion to Dismiss for Violation - -
MR. WILSON: Then counsel has never filed a request for speedy trial, Your Honor.
MR. DEGEURIN: I don't want a trial. I want it dismissed.
(emphasis added).
The trial court held an evidentiary hearing on May 10 and 11, 2005, heard testimony from appellant and the State's witnesses, granted the motion, and dismissed the indictment. At the conclusion of the evidentiary hearing, the trial court announced its findings and its ruling as follows:
THE COURT: Regarding the motion to quash or dismiss the indictment of Terri Lynn Dornburg, due to violation of right to speedy trial, the Court found there was a delay, a length of delay of 30 months from the original indictment, April 30th 2002, until the dismissal of the indictment in October 20th of 2004. There would be another seven months until the trial which is set for May 24th of 2005. With that, triggered the other Barker v. Wingo factors out of the 407 U.S. 514 that is a 1972 case. Those were now to be considered. It became the State's burden to excuse the delay. I looked at the reason for the delay. The Court has considered the evidence, including the fact that the State and investigator had to go through two to three years worth of records to peruse - - and for both Terri Lynn and Brent Dornburg, that there were bank records requested and then reviewed from eight different institutions, the investigation of other possible defendants, time lost when the case was transferred from the special prosecutor in the AG's office to the attorney pro tem, Terry Wilson, which was done on May 17th of 2002. This was not a delay for preindictment investigation which would be scrutinized under the Due Process clause per Griffith v. State, 976 Southwest Second 686, a Court of Appeals case out of Tyler, but these were all post indictment matters.
I looked also at assertion of the right. The defense attorney himself joined in two motions for continuance that moved this case to this May 24th date from, I believe, a November date, and the defense did not file a motion to dismiss the indictment due to violation of right to speedy trial until April 29 of 2005. There is case law that shows that there is no - - demand and waiver is not the law in Texas.
I looked at lastly the prejudice resulting from the delay. There was evidence regarding memories and the deceased individuals, but that was not compelling evidence as was the rest of the evidence. The Speedy Trial Act is designed to protect these interests per Munoz v. State, 991 Southwest Second 818, a Texas Court of Criminal Appeals case from 1999 that you are all familiar with. It prevents oppressive pre-trial incarceration. It minimizes anxiety and concern of the accused. It limits the possibility that the defense will be impaired. That's probably the most serious because the inability of a defendant to adequately prepare his case skews the fairness of this entire system. I did not find oppressive pre-trial incarceration. The evidence, though, of anxiety and concern was of a total upheaval in careers and even a back-up teaching career and a disruption of family life. When a defendant makes a prima facie showing of prejudice, the State bears the obligation of proving that the accused suffered no serious prejudice beyond that which ensued from ordinary and inevitable delay. Here the first indictments were dismissed but reindicted before dismissal. The only difference that this court could find between the first and second indictment for bribery included the name of the individual, Eugenia Schouten, which evidence shows was known in April of 2002 and an amount of money has changed.
The Court finds that the State has not excused the delay. The Court grants the motion to quash or dismiss the indictment of October 2004 for the violation of right to a speedy trial.
As noted above, in reviewing the trial court's ruling, we must uphold the ruling if it is supported by the record and is correct under applicable law. See Shaw, 117 S.W.3d at 889. LENGTH OF THE DELAY AND REASON JUSTIFYING THE DELAY
As these factors are closely related, we examine them together. See Barker, 407 U.S. at 530-31. The Barker Court noted that given the imprecision of the speedy trial right, to find a delay to be "presumptively prejudicial," thereby triggering an examination of the other Barker factors, the "peculiar circumstances of the case" must be taken into account. Barker, 407 U.S. at 530-31; Zamorano v. State, 84 S.W.3d 643, 648-49 (Tex. Crim. App. 2002). As the Supreme Court explained, "[D]elay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Barker, 407 U.S. at 531.
The record before us indicates the charge against appellee was more closely akin to a "complex conspiracy charge," and not "an ordinary street crime." At the April 6, 2005, continuance hearing, trial counsel argued in tandem with Brent's defense counsel that at that time there were roughly 1100-1200 pages of bank records to examine and a number of audio tapes to listen to for the defendants to be in a position to file legally effective pretrial motions. The State agreed, describing the bank records as "extensive." The length of the delay was further exacerbated by the fact that at the time of the alleged crime, appellee was employed by the Montgomery County District Attorney's Office, the agency that prosecutes such crimes. The district attorney initially requested assistance in prosecuting appellee from the Texas Attorney General's Office. Later, the district attorney decided to recuse his "whole office" from prosecuting appellee, declined further assistance from the Attorney General's Office, and filed a motion with the trial court for appointment of an attorney pro tem. The attorney pro tem, Terry Wilson, was appointed and sworn in on May 17, 2002.
From this somewhat "staggered start" to appellee's prosecution, as well as from what appears to be a seriously complex case, we are not prepared to find a lack of justification for the roughly thirty month delay from the initial indictments of April 30, 2002, through the re-indictment on October 12, 2004. (3) The record indicates that after changing hands twice, appellee's prosecution proceeded with only a single attorney, a single investigator, and a single "expert" document examiner. The investigation surrounding the charges involved, inter alia, issuing subpoenas for, and then examining, records and documents from a number of sources, including investment and financial institutions and credit card companies. The investigation also included "months" of reviewing dismissals of misdemeanor cases for over a two or three year period of time. See Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992) (apparent from the record that State's case was in fact quite complicated, although not argued to trial court as one of Barker factors).
However, neither are we prepared to find that all of the roughly thirty month delay was entirely attributable to the normal course of pretrial proceedings and preparation. Although the case was indeed complex in nature - - involving appellee, her husband, a number of her husband's clients, a paper-trail of various financial records and misdemeanor dismissal records, and a change of prosecutorial entities - - the thirty months is a significant period of delay. On balance, therefore, we weigh the first two Barker factors only slightly in appellee's favor.
Of greater significance and, we believe, most damaging to appellee's speedy trial claim, is the fact that the record does not indicate appellee ever clearly invoked her right to a speedy trial. Assertion of the right is entitled to strong evidentiary weight in determining whether an accused was deprived of the right. Barker, 407 U.S. at 531-32. However, a lengthy delay in asserting the right makes it difficult for an accused to prevail on a speedy trial claim. See Shaw, 117 S.W.3d at 890. The Court in Shaw explains as follows:
This is so because a defendant's failure to make a timely demand for a speedy trial indicates strongly that he did not really want one and that he was not prejudiced by not having one. Dragoo v. State, 96 S.W.3d at 314. Furthermore, the longer the delay becomes, the more likely it is that a defendant who really wanted a speedy trial would take some action to obtain one. Ibid. Thus, a defendant's inaction weighs more heavily against a violation the longer the delay becomes. Ibid.
Shaw, 117 S.W.3d at 890; see also Harris, 827 S.W.2d at 957. The record indicates appellee did not raise the speedy trial issue during the entire pendency of the 2002 indictments and did not file the "motion to dismiss" for over six months after she was re-indicted in 2004. Trial counsel's only explanation for this failure was that the State continued to promise to dismiss the 2002 indictments. Trial counsel argued to the trial court that he could not have made the same motion any sooner than he had. Trial counsel was mistaken as invocation of the right to a speedy trial "need not await indictment, information, or other formal charge." United States v. Marion, 404 U.S. 307, 321, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971).
Equally troubling is what appears to be appellee's misplaced notion that a motion to dismiss for lack of speedy trial was the most effective way to prevail on a speedy trial claim. It is apparent from the face of appellee's motion and from the assertions of trial counsel at the May 5, 2005, hearing that appellee's "'prime object was not to gain a speedy trial, but was an attempt to have the charge against [her] dismissed.'" See Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983) (quoting McCarty v. State, 498 S.W.2d 212, 215-16 (Tex. Crim. App. 1973)). "Although a motion to dismiss notifies the State and the court of the speedy trial claim, a defendant's motivation in asking for dismissal rather than a prompt trial is clearly relevant, and may sometimes attenuate the strength of his claim." Phillips, 650 S.W.2d at 401 (citing McCarty, 498 S.W.2d at 216); see also Marquez v. State, 165 S.W.3d 741, 749 (Tex. App.--San Antonio 2005, pet. ref'd). Furthermore, an accused's "sparse and delinquent assertions of his right to a speedy trial weigh in favor of the State's position." See Emery v. State, 881 S.W.2d 702, 709 (Tex. Crim. App. 1994); Haney v. State, 977 S.W.2d 638, 642 (Tex. App.--Fort Worth 1998, pet. ref'd). It is clear from the record that appellee was not seeking a speedy trial when her motion was filed but was clearly seeking a dismissal of the 2004 indictment. Trial counsel responded to the State's observation that appellee never requested a speedy trial by stating, "I don't want a trial. I want it dismissed."
At any rate, even had appellee appropriately asserted her right, it must be viewed in light of appellee's other pretrial conduct. See United States v. Loud Hawk, 474 U.S. 302, 314, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986). To begin with, appellee's persistent assertion that the State's promise to dismiss the 2002 indictments precluded her from filing a motion to dismiss or asserting her speedy trial rights is not supported by the record. Two days after trial counsel filed his notice of representation, he filed a written motion to determine the validity of the attorney pro tem's appointment. While Appellee seems to find support in language from Dragoo, 96 S.W.3d at 315, Appellee provides no authority for the proposition that an alleged pretrial promise by the State to dismiss an indictment obviates any need on the part of an accused to assert her right to a speedy trial pursuant to Barker. Furthermore, appellee does not explain the context of the State's alleged promise to dismiss the 2002 indictments. Was the purported reason for the dismissals because there was a lack of sufficient evidence or because the language used in the indictments subjected them to being quashed? If for the latter reason, trial counsel surely must have anticipated the likelihood of re-indictment resulting in appellee's facing the same or similar charges. Regardless, the State made good on its "promise" as the 2002 indictments were dismissed on October 20, 2004. Lastly, the record clearly indicates that trial strategy played an important role in appellee's decision to assert her speedy trial right when she did. During the April 6, 2005, hearing on appellee's motion for continuance, recall that trial counsel responded to the trial court's question as to why he did not earlier seek a specific discovery order from the court for the various financial records:
MR. DEGEURIN: Well, Your Honor, that's a good point; but what is, in today's time, informal discovery, sometimes go further than what the Court could order as a matter of law. . . . So I could envision a hearing where the Court could say in the end, well, you can give them the statements attributed to the defendants, but I cannot order, Mr. DeGeurin, that you get the whole report. You will have to wait until trial and then we would be in a whole another ball. We would have to file a bunch of unnecessary motions and severances and things like that. So there is some benefit, especially where the clients are not in custody, and they are not a threat to the community while awaiting trial, and it is not opposed by the State, there are some times that it's a benefit to have the informal discovery. That's why we haven't burdened you with a motion.
On balance, we find appellee's failure to timely and persistently assert her right to speedy trial weighs so heavily against appellee as to attenuate any prejudice except for the most serious. See Dragoo v. State, 96 S.W.3d 308, 315 (Tex. Crim. App. 2003) ("In view of the lengthy delay here, in which appellant quietly acquiesced, this factor weighs very heavily against finding a violation of the speedy trial right.").
PREJUDICE TO APPELLEE RESULTING FROM THE DELAY
When balancing this factor, a reviewing court must do so in light of the interests which the speedy trial right is intended to protect, namely: 1) to prevent oppressive pretrial incarceration; 2) to minimize the accused's anxiety and concern; and 3) to limit the possibility that the defendant's defense will be impaired. See Barker, 407 U.S. at 532; Shaw, 117 S.W.3d at 890 (citing Barker, 407 U.S. at 532). Of these three interests, "the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Shaw, 117 S.W.3d at 890 (citing Barker, 407 U.S. at 532). With respect to the third interest, affirmative proof of prejudice is not essential because excessive delay in bringing an accused to trial compromises the reliability of a trial in ways neither party can prove or even identify. See id. (citing Doggett v. United States, 505 U.S. 647, 655, 112 S. Ct. 2682, 120 L. Ed. 2d 520 (1992)). However, the presumption of prejudice to the accused's ability to defend himself is "extenuated . . . by the defendant's acquiescence" in the delay. Id. (quoting Doggett, 505 U.S. at 658).
In the instant case, the trial court found no oppressive pretrial incarceration. The record supports this finding as from all indications, appellee was never incarcerated, having apparently remained free on a personal recognizance bond following the indictments of 2002 and the re-indictment in 2004. The trial court's finding -- "[t]here was evidence regarding memories and the deceased individuals, but that was not compelling evidence . . . ." -- is also supported by the record as there was little to no evidence regarding faded memories, and appellee made no serious attempt to set out what probative testimony could have been provided by the deceased witnesses. See Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973) (a prejudice claim based on unavailable witnesses must include proof establishing, inter alia, that the witnesses' testimony might be material and relevant to accused's case). See also Ortiz v. State, 144 S.W.3d 225, 229-30 (Tex. App.--Houston [14th Dist.] 2004, pet. ref'd) (party has burden to develop sufficient record in trial court to support his position for appellate purposes).
The trial court's ruling from the bench appears to focus heavily on the "minimize anxiety and concern" interest as the reason for granting appellee's motion to dismiss: "The evidence, though, of anxiety and concern was of a total upheaval in careers and even a back-up teaching career and a disruption of family life. When a defendant makes a prima facie showing of prejudice, the State bears the obligation of proving that the accused suffered no serious prejudice beyond that which ensued from ordinary and inevitable delay."
Trial counsel called appellee to testify concerning the prejudice factor. She testified that prior to the 2002 indictments she was employed as an assistant district attorney for Montgomery County. She stated that she loved her job, and had plans to become a felony prosecutor and possibly to run for judicial office at some point. Following the 2002 indictments, appellee testified that her life changed: she lost her job in February 2002, and although initially able to gain employment with "Hopkins Law Firm," she later resigned from the firm. When asked if there was a relationship between the "public accusation of you pending in Montgomery County," appellee responded: "The second indictment came down October of 2004. It was covered in the press in November. There was a lapse of time. And I was asked to leave Hopkins Law Firm in November of 2004 following the press coverage." It would appear that her job loss with the Hopkins Firm was not because of any delay prior to the 2004 re-indictment.
Appellee further testified she lost her position as president of a church pre-school school board. She then stated that although she had enjoyed prosecuting, "when I loss [sic] my job as a prosecutor, I fell out of love with law altogether[.]" At that point, appellee completed some school work in hopes of obtaining an education certificate, but has been denied certification while the case was pending. At this point, trial counsel asked appellee to explain what the "period of public accusation" did to her life:
A. I loved my job as a prosecutor. I enjoyed my work at the church with the Grace Kids Program. At the time of these accusations, I had a 1-year old and an infant. They are now 4 and 5. I have loss [sic] all that time to truly enjoy being a mother with these little boys. I will never get that time back with them.
I wake up a happy person. Like my teachers, when I was little, always called me Jolly. And I have good out look [sic] on life. But for the last, almost 4 years, I wake up and immediately devastated [sic] when I realize this is not a bad dream. It is real. I deal with that every day throughout the day while trying to raise these two little boys.
It has been very hard on my family, my father, my mother, my sister. I have grandmother [sic] that I was the closest to. She passed away 6 months [sic] while all this is still pending. So, I will never get the chance to sit down with her and explain the outcome.
Taking appellee's testimony as entirely true, as we must, we find the various facts and circumstances described by appellee to be nothing extraordinary for any individual facing criminal charges. See Shaw, 117 S.W.3d at 890 (defendant offered no evidence that delay caused an "unusual anxiety or concern, i.e., any anxiety or concern beyond the level normally associated with being charged with a felony sexual crime"). Furthermore, it appears that, except for the inability to be certified as a teacher, the various negative incidents described were not directly attributable to the lapse of time between the return of the 2002 indictments and the re-indictment in 2004. See Munoz, 991 S.W.2d at 826 (if accused makes prima facie showing of prejudice, State must prove that accused suffered "'no serious prejudice beyond that which ensued from the ordinary and inevitable delay'" (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973)). Additionally, it would appear that appellee voluntarily refrained from seeking any law-related employment as she "fell out of love with law altogether" after resigning her position at the district attorney's office. (4) At any rate, our examination of appellee's testimony, along with all of the facts and circumstances contained in the record, leads us to weigh Barker's prejudice factor only slightly in appellee's favor. The record indicates the trial court placed most importance on the prejudice factor and the "upheaval" caused by the pending criminal charges. However, Barker makes clear that no single factor of the four factors is necessarily "more important" than any other, viz:
We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.
Barker, 407 U.S. at 533 (footnote omitted).
Having addressed the four Barker factors, we must now balance them together. We note first that while the thirty month delay in question was by no means insignificant, and was not entirely explained by the State, it was not excessive given the complexity of the State's case against appellee and the mere three-person "team" that shouldered the entire investigative and prosecutorial burden. These two factors weigh only slightly in favor of finding a violation of appellee's speedy trial right. Weighing heavily against finding a violation are the following facts: appellee failed to make any mention of her speedy trial right until almost thirty-six months after the 2002 indictments were filed, and when she did finally file her motion, she requested dismissal instead of invoking the right to a speedy trial. Both facts indicate she really did not want a speedy trial. See Dragoo, 96 S.W.3d at 316. Finally, the fact that appellee was only able to demonstrate slight prejudice attributable to the delay again tips the scale only very slightly in her favor. We hold that the weight of the four factors, balanced together, is against finding a violation of appellee's right to a speedy trial. See Barker, 407 U.S. at 534-36 (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); Dragoo, 96 S.W.3d at 316 (where defendant demonstrated no serious prejudice by three-and-one-half year delay between arrest and trial and he waited until just before trial to assert his right to speedy trial, his right to a speedy trial was not violated).
We repeat the observation quoted at the beginning of this opinion: "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice." Barker, 407 U.S. at 522 (quoting Beavers v. Haubert, 198 U.S. at 87). We can only echo the conclusion reached by the Barker Court that, barring extraordinary circumstances, we would be reluctant to rule that an accused was denied her constitutional right to a speedy trial on a record that strongly indicates, as does this one, that the accused did not want a speedy trial. Barker, 407 U.S. at 536. Giving deference to the trial court's finding on the relevant facts and having balanced the Barker factors, we conclude that the record does not support the trial court's ruling. The State's appellate issues are sustained. We reverse the trial court's May 13, 2005, order of dismissal with prejudice and remand this cause to the trial court with instructions to reinstate the indictment.
REVERSED AND REMANDED.
_______________________________
CHARLES KREGER
Justice
Submitted on December 15, 2005
Opinion Delivered March 1, 2006
Do Not Publish
Before McKeithen, C.J., Kreger and Gaultney, JJ.
1. 2. 3. 4.