State v. Salinas

OPINION

HINOJOSA, Justice.

This is an appeal by the State from an order of dismissal of a criminal prosecution. The State presents four issues contending the trial court erred (1) by dismissing a prosecution without the consent of the State, *718(2) by dismissing the case without evidence of a speedy trial violation, (3) by not requiring the presence of the defendant at the pre-trial hearing, and (4) by issuing an order of dismissal which does not conform with the procedural facts of the ease. We reverse and remand.

Appellee, Sigifredo Salinas, was charged on March 29, 1990 with the misdemeanor offense of driving while intoxicated. Salinas waived arraignment on May 4, 1990, and a pretrial conference was set in County Court at Law No. 3, but passed twice. A jury trial was scheduled and reset three times. When Salinas failed to appear for an April 23, 1991 trial setting, a judgment nisi was issued and his bond was forfeited. Approximately eighteen months later, Salinas reappeared and a new bond was set. That same day, November 6, 1992, the case was transferred to County Court at Law No. 1, and a pretrial hearing was set for November 30,1992. The ease was eventually set for a guilty plea on April 22, 1993, but the plea never took place.

On June 11, 1997, the State was ordered by the trial court to show cause why the case should not be dismissed for want of prosecution. Identical “show cause” orders were filed in over 200 other misdemeanor eases that had been filed generally between 1988 and 1992. At a July 9, 1997 show cause hearing, the trial court proceeded to call each case one-by-one to determine its status. Numerous cases were dismissed with the consent of the State, others were retained on the court’s docket, while over sixty cases, including this one, were dismissed over the State’s objection and have now been appealed to this Court. In none of the eases appealed did the defendant file a written motion to dismiss.

When this case was called, defense counsel David Garcia made an oral motion to dismiss because the defendant’s right to a speedy trial had been violated. The trial court noted the State’s objection, stated that the last setting had been April 22, 1993, and granted the dismissal. On July 9, 1997, the trial court signed an order dismissing this case for violation of Salinas’s right to a speedy trial.

In its second issue, the State contends the trial court erred in dismissing this ease for violation of the defendant’s speedy trial rights.

Criminal defendants are entitled to a speedy trial under both federal and state constitutions. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The following factors, as announced by the United States Supreme Court, must be weighed by a reviewing court to determine whether the defendant’s constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his speedy trial right; and (4) prejudice to the defendant from the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Moreover, although the constitutional speedy trial rights of Texas and the United States are independent, Texas courts look to federal courts in determining state constitutional rights and use the Barker test to determine whether a defendant has been denied his state speedy trial right. Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992); State v. Flores, 951 S.W.2d 134, 137 (Tex.App.—Corpus Christi 1997, no pet.).

The record in the present ease, however, reveals that the issue of the defendant’s right to a speedy trial was never raised prior to the day of the hearing. Nor did the trial court receive evidence from either the defense or the prosecution in regard to any of the Barkerfactors, aside from taking notice of the record on the length of the delay in each case. Accordingly, we conclude that without prior notice to the State of the defense’s motion to dismiss and without a meaningful hearing on lack of a “speedy trial” as a ground for dismissal, the trial court erred to the extent that it dismissed on this ground. See United States v. Rich, 589 F.2d 1025, 1033-34 (10th Cir.1978) (trial court errs when, at a sua sponte hearing on the status of the ease, it allows a speedy trial challenge to be raised summarily on the basis of length of delay alone and dismisses the case without prior notice to the State or an opportunity to present evidence on the Barker factors).

We sustain the State’s second issue. In light of our disposition of this issue, it is not necessary to address the State’s remaining issues. Tex.R.App. P. 47.1.

*719We reverse the trial court’s dismissal order and remand this case to the trial court for further proceedings consistent with this opinion.

Concurring opinion by YANEZ, J.