dissenting.
I respectfully dissent.
The majority opinion cites Lovasco but then overlooks the Supreme Court’s dictate that the main appellate concern should be whether or not the delay “violates those fundamental [concepts] of justice which lie at the base of our civil and political institutions.” United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752 (1977) citing Mooney v. Holohan, 294 *472U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935). It violates my fundamental concepts of justice to allow the State to grant itself a continuance by dismissing the indictment after the trial court denied the State’s motion for continuance. It also violates my fundamental concepts of fairness to allow the State to then reindict, with no new evidence or new witnesses, and force the defendant to trial after he has lost two alibi witnesses due to the State’s delay.
The Court specifically found in its conclusions of law that “the pre-trial delay is unreasonable, and violates the rights guaranteed the Defendant by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I Sections 10 and 19 of the Texas Constitution.” It is well established in Texas that the appellate standard of review for a trial court’s ruling is whether the Court abused it’s discretion. Sinegal v. State, 582 S.W.2d 135, 137 (Tex.Crim.App.1979); Moss v. State, 790 S.W.2d 731, 732 (Tex.App.-Houston [14th Dist.] 1990, no pet.). The United States Supreme Court has applied the abuse of discretion standard when reviewing a speedy trial dismissal. United States v. Taylor, 487 U.S. 326, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988). On appeal, all evidence is to be viewed in the light most favorable to the trial court’s ruling. King v. State, 831 S.W.2d 891, 893 (Tex.App.—Houston [14th Dist.] 1992, no pet.). “An appellate court must defer to the trial court’s findings of fact absent a clear abuse of discretion.” Spillman v. State, 824 S.W.2d 806, 810 (Tex.App.-Austin 1992, pet ref’d).
The trial court is the sole judge of the credibility to be given the witnesses as well as the weight to be given their testimony. Whitten v. State, 828 S.W.2d 817, 820 (Tex.App.— Houston [1st Dist.] 1992, pet ref’d). An appellate court does not engage in its own factual view, but decides only whether the trial judge’s fact findings are supported by the record. Id. “If the trial court’s findings of fact are supported by the record, an appellate court is not at liberty to disturb them, and ... the reviewing court may address only the question of whether the trial court improperly applied the law to the facts.” Id.
The majority replaces the findings of the trial court with its own. It claims that the record does not support a finding of a thirty-two month delay. The trial court noted that “the defendant’s case was set for trial on April 23, 1991, more than 32 months after his arrest and initial indictment.” The majority held this to be an abuse of discretion, and found that the time covered by agreed resets was to be excluded from calculations for purposes of a speedy trial. However, the trial court’s finding of a 32 month delay is factually correct. Pat Kelley, an assistant district attorney from September of 1983 through January of 1990, testified that the defendant was initially indicted in August of 1988. The case was dismissed on June 20, 1989. Vic Wisner, a successive assistant district attorney, took over the ease in June of 1990. He had the defendant reindicted on June 22, 1990, and the case was finally set for trial on April 23,1991. There was a ten month delay from the initial indictment to the dismissal in June of 1989. Then from June 20, 1989 to the second indictment, there was a twelve month delay. Finally, there was another ten month delay from the second indictment until trial. All these delays add up to 32 consecutive months. Even if we exclude the initial ten months from the first indictment to the dismissal, and the year delay between the dismissal and the reindictment, there still remains a ten month delay from the second indictment until trial. The Texas Court of Criminal Appeals noted in Chapman v. Evans, 744 S.W.2d 133, 136 (Tex.Crim.App.1988), that the speedy trial right cannot “be quantified into a specific number of days or months.”
The majority held that the ten month period of time “affords very little support for a violation of appellee’s speedy trial guarantee.” The majority went on to state that “without ... an improper stacking of the prior time periods, the appellee cannot seriously claim that he was denied a speedy trial during this final ten-month period.” With this statement, the majority replaced the finding of the Court with its own.
*473The majority also held the finding of the trial court, that the defendant “asserted his right to a speedy trial,” was not supported by the record. However, assistant district attorney Pat Kelley testified that the defendant made a request for a speedy trial. The majority held that: “We find the agreed numerous resets, the timing of his opposition to a continuance, the argument made by his counsel during the hearing, and his opposition to even a two-day reset, do not support the trial court’s finding that he asserted his right to a speedy trial.” Again, the majority is choosing to engage in its own fact finding. The testimony of Pat Kelley, an assistant district attorney who had been in charge of the case, does support the trial court’s finding that the defendant asserted his right to a speedy trial. It is not the position of this court to judge the credibility of the witnesses or realign the weight to be given their testimony. It is improper for the majority to do so.
Finally, the majority states that “in our opinion the evidence presented is not sufficient to show that the [defense] witnesses’ testimony was material and [their] absence therefore prejudicial.” The majority held that the trial court’s finding that the defendant “had suffered actual prejudice because of the delay caused by the State,” was not supported by the record. Once again, the majority is inserting itself as the fact finder.
At the hearing on the speedy trial issue, Gene Boyd testified that two material defense witnesses were now lost. Mary Koonce died on December 18, 1989. A second alibi witness, Korina Zuniga, has' disappeared and cannot be found. Mr. Boyd testified that they have tried all known addresses, her Texas driver’s license number, her social security number and the Texas Employment Commission, and have been unable to find her. These women were alibi witnesses who were expected to testify that the appellee was not at the scene of the crime at the time and date alleged by the State. Based upon Mr. Boyd’s testimony, the Court found that the defendant had suffered actual prejudice. The majority has ruled on the credibility of a witness and found that he was not credible. We simply do not have the power or authority to rule on the credibility of witnesses.
The State has not assigned'error to the findings of facts and conclusions of law; therefore, I believe they are binding on this Court.1 We are restricted to a review of whether the law was properly applied to the facts. It was noted in Chapman (supra), that the “Supreme Court established a balancing test and suggested four factors to consider in determining whether an accused has been denied a speedy trial. The factors, though not exclusive are: (1) length of the delay; (2) reason for the delay; (3) the defendant’s assertion of the right; and (4) prejudice to the defendant resulting from the delay.” Chapman at 136 (emphasis added)2. Chapman went on to indicate that “none of the four factors previously discussed is alone necessary or sufficient to a finding of deprivation of the right to a speedy trial,” at 137.
The trial court found:
(1) The defendant had asserted his right to a speedy trial.
(2) The case had been preferentially set for June 20, 1989.
(3) H.P.D. Officer Nick Wilson had been subpoenaed, but chose to go on vacation instead of testifying.
(4) The State was not ready to go to trial on June 20, 1989 and the State had *474not exercised due diligence to get ready for trial.
(5) On June 20, 1989 the State dismissed the case.
(6) Pat Kelley, Alice Brown, and Vie Wis-ner, three successive assistant district attorneys responsible for' the case, were of the opinion that, as of June 20,1989, the case was not prosecutable.
(7) After Pat Kelley left the D.A.’s office he told the defendant’s attorneys about his conversation with Alice Brown and that she concurred in his decision that the defendant would not be reindicted.
(8) On June 22, 1990, the defendant was indicted again for the exact same offense — no valid reason existed for this delay.
(9) Karen Koonce was a prospective defense witness. She died on December 18, 1989. She is unavailable to the defense because of the delay caused by the State.
(10) Korina Zuniga was a prospective defense witness. She has disappeared and is unavailable to the defense because of the delay caused by the State. The defendant has exercised due diligence in attempting to find her.
(11) The defendant has suffered actual prejudice because of the delay caused by the State.
(12) No new evidence was discovered by the State between June 20, 1989 and April 23, 1991 that was not already known to the State or its agents or could not have been known through the exercise of due diligence.
Applying the trial court’s finding to the law, I find that the State’s actions violated the defendant’s Sixth amendment right to a speedy trial. Utilizing the balancing test, the court specifically found that: (1) the delay by the State was unreasonable; (2) no valid reason existed for the delay; (3) the defendant had asserted his right to a speedy trial; and (4) that the loss of two defense witness resulted in actual prejudice to the defendant. The Barker balancing test has been completely satisfied. It is only by engaging in its own fact finding that the majority can hold that the defendant’s constitutional rights were not violated.
Due Process requires dismissal of an indictment if a preindictment delay: (1) caused the defendant substantial prejudice; and (2) was an intentional device by the State to gain a tactical advantage. Spence v. State, 795 S.W.2d 743, 749 (Tex.Crim.App.1990), cert. denied — U.S. -, 111 S.Ct. 1339, 113 L.Ed.2d 271 (1991). The majority indicates that the defendant was not prejudiced by the delay. However, in order to establish actual prejudice for preindictment delay, the defendant need only show “some” prejudice caused by the delay. State v. Owens, 778 S.W.2d 135, 138 (Tex.App.— Houston [1st Dist.] 1989, pet. ref’d)3. Its has been held that if a material witness disappears because of the delay, prejudice is shown. Id. citing Barker v. Wingo (supra). The majority goes on to note that even if there was prejudice to the defendant, there was no violation of the defendant’s due process rights, because nothing indicates that the delay was a tactical device intended to gain advantage over the defendant. The majority has closed its eyes to the obvious: the State was denied a continuance so it created its own. This clearly is a “intentional device intended to gain tactical advantage.”
The court in Lovasco (supra) held that a “due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” It noted that “investigatory delay is fundamentally unlike delay undertaken ... solely ‘to gain tactical advantage over the accused.’ ” 431 U.S. at 795, 97 S.Ct. at 2051. Tactical advantage, however, is not to be the sole inquiry. The main concern is to be the “fundamental conceptions of justice.” Id. at 790, 97 S.Ct. *475at 2049. This means that reasons other than “tactical advantage” may be considered when examining the State’s reason for the preindictment delay. In this case, the trial court made a finding that the delay was intentionally caused by at least one prosecutor. Further, it found that no new evidence was uncovered from June of 1989 until April of 1991. Clearly, any delay by the State was not for investigatory purposes, but instead was because it consciously chose not to pursue the case. If such a choice causes actual harm to the accused’s defense, the prosecution should not be allowed to reindict.
The Texas Court of Criminal Appeals decision in Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991), indicated that appellate courts were free to reexamine the Texas Constitution, and depart from traditional federalism when ruling on issues of State constitutional law. The appellee raised Texas Constitutional grounds at the trial court level. The State conceded that the trial court’s findings addressed that issue. I find that in light of Article I of the Texas Constitution, district courts should be free to examine any and all reasons for the State’s delay. In one case since Heit-man 4, the Texas Court of Criminal appeals declined to depart from the application of federal law in speedy trial claims. However, the Court noted in Deeb that the appellant had offered no separate or distinct analysis of the Texas Constitution. Deeb at 704. The majority in Deeb indicated that the Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutors judgment as to when to seek an indictment. Deeb at 705, citing United States v. Lovasco (supra). However, once an indictment has been sought, further control over setting the case for trial and granting or denying continuance should lie within the sound discretion of the trial court. See Collier v. Poe, 732 S.W.2d 332 (Tex.Crim.App.) appeal dismissed, 484 U.S. 805, 108 S.Ct. 51, 98 L.Ed.2d 15 (1987); Garcia v. State, 537 S.W.2d 930 (Tex.Crim.App.1976).
In this case, however, the State chose to grant its own continuance. On June 14, 1989 the State filed a motion for continuance; the motion was denied. On June 16, 1989, the State filed a second motion for continuance, alleging an essential, subpoenaed State witness had “nonrefundable vacation tickets, and the witness preferred to have the case dismissed and refiled rather than ‘eat’ the tickets.” The Court properly denied the second motion. The State then granted its own continuance by dismissing the case. However, instead of immediately refiling the case, the assistant district attorney in charge of the case was of the opinion that the case was not prosecutable. He made an intentional decision not to refile the case. No new evidence was discovered. Two defense witnesses were lost. Finally, at its convenience, the State rein-dicted the defendant.
The majority’s opinion allows prosecutors to indict, dismiss and reindict at their convenience, in spite of the harm to defendants. “Unless we are to conclude that the Constitution imposes no constraints on the prosecutor’s power to postpone the filing of formal charges to suit his own convenience, I believe we must affirm the judgment.... A contrary position ‘can be tenable only if one assumes that the constitutional right to a fair hearing includes no right whatsoever to a prompt hearing.’ ” (Stevens, J., dissenting) in United States v. Lovasco (supra), 431 U.S. at 799-800, 97 S.Ct. at 2053, citing Moody v. Daggett, 429 U.S. 78, 91, 97 S.Ct. 274, 281, 50 L.Ed.2d 236 (1976) (Stevens, J., dissenting).
There is no evidence to support a finding of abuse of discretion. The findings of fact of the trial court are supported by evidence, and the conclusions of law are correct. I would affirm the judgment of the trial court.
. For the civil presumption, see Graham v. Pazos De la Torre, 821 S.W.2d 162 (Tex.App.—Corpus Christi 1991, writ denied). At least one Texas appellate court has indicated that when fact findings go unchallenged in a criminal case, that fact is to be given some weight on appellate review. See, Gonzales v. State, 831 S.W.2d 347 (Tex.App. —San Antonio 1992, pet ref'd). The appellate court held that: "The record ... reflects findings of facts and conclusions of law ... which support the trial court’s order ... and which are not challenged by the appellant in this appeal.... We have reviewed the record and hold that the trial court was justified in [its conclusion].”
. Chapman is referring to the Supreme Court case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
. State v. Owens reviewed a preindictment delay under the Sixth amendment, not the Fifth amendment, because the accused had been jailed for 223 days prior to the indictment. In Owens, the delay was only 7 months. The prejudice to the accused was anxiety, and the loss of a fact witness. The facts in the case at bar are stronger than those in Owens, absent actual imprisonment of the defendant.
. See, Deeb v. State, 815 S.W.2d 692 (Tex.Crim.App.1991), cert. denied — U.S. -, 112 S.Ct. 3038, 120 L.Ed.2d 907 (1992). Deeb was decided on the same day as Heitman. The majority opinion in Deeb was authored by Judge White. Judge White wrote the dissenting opinion in Heitman.