NO. 12-01-00364-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DAVID CARTER MCCOY,§ APPEAL FROM THE
APPELLANT
V.§ COUNTY COURT AT LAW OF
THE STATE OF TEXAS,
APPELLEE§ SMITH COUNTY, TEXAS
Appellant David Carter McCoy appeals his conviction for Failure to Maintain Financial Responsibility, for which the jury imposed a $500.00 fine. In six issues, Appellant complains of lack of jurisdiction, denial of a speedy trial, failure to give fair notice of the charge, ex parte communications, and deemed admissions. We affirm.
Background
During a traffic stop, Lindale police issued a citation to Appellant for failure to show proof of insurance, a Class C Misdemeanor. According to the record, Appellant pleaded nolo contendere, was found guilty by the municipal court, and appealed his conviction to the county court at law. After a jury trial de novo, Appellant was found guilty as charged and was assessed a fine of $500.00. This appeal followed.
Lack of Jurisdiction
In his first issue, Appellant maintains that the county court at law had no jurisdiction to hear his traffic citation case because he did not appeal the conviction from the municipal court. In the clerk's record, a Transcript of Judgement[sic] for Municipal Court states that Appellant pleaded nolo contendere to the charge of failure to maintain financial responsibility, was found guilty as charged, did not pay the assessed fine of $242.00, and filed an appeal bond of $200.00 for a trial de novo at the county court level. It has long been a cardinal rule of appellate procedure in Texas that we "must indulge every presumption in favor of the regularity of the proceedings and documents" in the trial court. McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975). The presumption of regularity is a judicial construct that requires a reviewing court, "absent evidence of impropriety," to indulge every presumption in favor of the regularity of the trial court's judgment. Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000). We have consistently upheld this presumption absent a showing to the contrary. Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.- Houston [1st Dist.] 1996, pet. ref'd). The burden is on the defendant to overcome the presumption. Id. Because Appellant has failed to affirmatively show that he did not appeal his conviction from the municipal court, we overrule issue one.
Denial of Speedy Trial
In issues two and three, Appellant complains that he was denied a speedy trial. He contends that the municipal court mishandled the case and did nothing with it for over fourteen months, then sent it to the county court at law as an appeal, where the case was misfiled and lost for an additional period of almost thirty months. A criminal defendant is entitled to receive a speedy trial under both the United States and Texas constitutions. U.S. Const. amends. VI, XIV; Tex. Const. art. I, § 10. The right to a speedy trial is fundamental. Klopfer v. N.C., 386 U.S. 213, 223, 87 S. Ct. 988, 993, 18 L. Ed. 2d 1 (1967). A defendant has no duty to bring himself to trial. Barker v. Wingo, 407 U.S. 514, 527, 92 S. Ct. 2182, 2190, 33 L. Ed. 2d 101 (1972). The Supreme Court has established a balancing test to weigh the conduct of the prosecution and the defendant, placing the primary burden on the courts and the prosecution to bring cases to trial. Id., 407 U.S. at 529-30, 92 S. Ct. at 2191-92. The Barker court identified four factors to be considered in determining whether an accused has been denied his constitutional right to a speedy trial: (1) length of delay; (2) reason for the delay; (3) assertion of the right; and (4) prejudice to the accused. Id. We review the four-factor balancing test de novo. Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997).
The length of delay acts as a threshold that must be passed before the other factors are considered. See Barker, 407 U.S. at 530, 92 S. Ct. at 2192. Unless there is a delay that is presumptively prejudicial, the other factors need not be reached. Id. The length of the delay is measured from the time the defendant has been either charged or arrested. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994) (citing U.S. v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 459, 30 L. Ed. 2d 468 (1971)). The reasonableness of the delay may depend upon the nature of the offense, so that the delay tolerated for an ordinary street crime may be considerably less than the delay for a complex conspiracy charge. See Barker, 407 U.S. at 530-31, 92 S. Ct. at 2192. Courts generally hold that any delay of eight months or longer is presumptively unreasonable when evaluating a speedy trial complaint. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). The length of the delay in this case is presumptively unreasonable; but because of the nature of the offense, a Class C Misdemeanor, it weighs only slightly in Appellant's favor.
The State bears the initial burden of providing justification for an unreasonable delay. Emery, 881 S.W.2d at 708. An intentional delay weighs heavily against the State. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. When the record is silent regarding the reason for the delay, the court may presume that no valid reason for the delay exists. State v. Burckhardt, 952 S.W.2d 100, 103 (Tex. App.- San Antonio 1997, no pet.). In the present case, there is nothing in the record to indicate that Appellant was in any way responsible for the delay. Therefore, the reason for the delay weighs against the State.
The third factor in the balancing test the court must consider is whether the defendant asserted his right to a speedy trial. The defendant has some responsibility to assert his right to a speedy trial. Melendez v. State, 929 S.W.2d 595, 599 (Tex. App.- Corpus Christi 1999, no pet.). Therefore a defendant's assertion of his right to a speedy trial is entitled to strong evidentiary weight. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. There is no single method by which an accused must assert his right to a speedy trial. In Burckhardt, the court found that the defendant asserted his right to a speedy trial by insisting on a special setting for his pretrial motions, thereby establishing his desire to have his case heard as soon as possible. Burckhardt, 952 S.W.2d at 103. In Guajardo v. State, a motion to dismiss for violation of the right to a speedy trial was considered an assertion of that right. Guajardo v. State, 999 S.W.2d 566, 570 (Tex. App.- Houston [14th Dist.] 1999, no pet.). In the present case, there is nothing in the record to show that Appellant filed any motions or did anything at all to assert his right to a speedy trial. The first time that he even raised the issue was in his motion for new trial filed after judgment was rendered in the county court at law. Therefore, his failure to assert his right to a speedy trial weighs heavily against Appellant.
In considering whether the delay has prejudiced the defendant, proof of actual prejudice is not required. Melendez, 929 S.W.2d at 600. The defendant has the burden to make a prima facie showing of prejudice. Guajardo, 999 S.W.2d at 570. Once the defendant has met his burden, the burden shifts to the State to refute that prejudice has occurred. Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973). A trial delay can be harmful in three ways: (1) pretrial incarceration may be oppressive; (2) the accused may be unduly subjected to anxiety and concern; or (3) a defense may be impaired. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. Appellant claims only that the delay resulted in an unnecessary trial at the county court level; he would not have gone to trial if he had recalled that he had not appealed the municipal court judgment. However, as we stated earlier, the presumption is that Appellant did appeal the judgment, and he points to nothing in the record to rebut that presumption. Consequently, he fails to make a prima facie showing of prejudice. Accordingly, this factor weighs heavily against Appellant.
Because two of the four Barker factors weigh heavily against Appellant, one weighs against the State and one weighs slightly in Appellant's favor, we hold that Appellant was not unconstitutionally denied a speedy trial, and overrule issues two and three.
Failure to Give Adequate Notice of Charge
In his fourth issue, Appellant maintains that he was not informed of the nature and cause of the charges against him. However, he signed the traffic citation which stated that he was being charged with failure to maintain financial responsibility. Furthermore, the complaint filed in the municipal court stated the following:
David Carter McCoy on or about the 2nd day of November, 1997, and before the making and filing of this complaint, within the incorporated limits of the City of Lindale, Smith County, Texas, N. College, did then and there unlawfully knowingly operate a motor vehicle upon a public street, in the city, county and state aforesaid, and did then and there unlawfully fail to furnish upon request to a police officer information concerning evidence of financial responsibility to respond to damages for liability.
The allegation in the complaint asserted all necessary details concerning the offense. Even if it did not, this defect has not been shown to have prejudiced Appellant's substantial rights. See Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986). In the absence of a statement of facts, we cannot determine if the wording of the complaint impaired Appellant's ability to prepare a defense. See id. Consequently, we overrule Appellant's fourth issue.
Ex Parte Communication
In his fifth issue, Appellant complains that the county court at law judge and the State's prosecutor engaged in an ex parte hearing. Specifically, he asserts that on August 15, 2001, the day of trial, he witnessed the judge and prosecutor participate in a discussion of the case concerning defects in the complaint "in a manner meant to exclude, and resulting in the exclusion of the accused from the discussion or hearing." Canon 3(B)(8) of the Judicial Conduct Code states the following:
A judge shall accord to every person who has legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party [or] an attorney . . . concerning the merits of a pending or impending judicial proceeding.
Tex. Code Jud. Conduct, Canon 3(b)(8), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. B (Vernon 1998). However, there is nothing in the record which would indicate that Appellant complained about the alleged improper conversation. Consequently, he has waived error. Tex. R. App. P. 33.1(a)(1). Accordingly, we overrule Appellant's fifth issue.
Motion in Arrest of Judgment
In his sixth and final issue, Appellant asserts that since none of the "facts" set forth in his Sworn Motion in Arrest of Judgment have been refuted, it stands as an admission by the State. A motion in arrest of judgment is a defendant's oral or written suggestion that, for reasons stated in the motion, the judgment rendered against the defendant was contrary to law. Tex. R. App. P. 22.1. There is nothing in the record to indicate that a hearing was held on the motion, or that the trial court ruled on it. Therefore, the motion is deemed denied. Tex. R. App. P. 22.5. Appellant does not appeal the denial of the motion, however; he simply asserts that since the State did not respond to the motion, we should now hold that the "facts" he asserted in that motion are true. He offers no authority for this proposition, and we have found none. Consequently, we overrule Appellant's sixth issue.
The judgment of the trial court is affirmed.
JAMES T. WORTHEN
Justice
Opinion delivered December 20, 2002.
Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.
(DO NOT PUBLISH)