EX PARTE ADRIAN MALCOLM TEMPLETON (Other)

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State: Texas

Court: Criminal Court of Appeals

Docket No: WR-71,218-01

Case Date: 09/23/2009

Plaintiff: FRANCISCO TREVINO

Defendant: THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

Preview:Boon Michael Cathey v. The State of Texas--Appeal from County Court at Law of Val Verde County
MEMORANDUM OPINION

No. 04-04-00501-CR

Boon Michael CATHEY, Appellant

v.

The STATE of Texas, Appellee

From the County Court at Law, Val Verde County, Texas Trial Court No. 03-483-CR Honorable Sergio J. Gonzalez, Judge Presiding Opinion by: Sarah B. Duncan, Justice Sitting: Catherine Stone, Justice Sarah B. Duncan, Justice Karen Angelini, Justice Delivered and Filed: December 7, 2005

REVERSED AND RENDERED Boon Michael Cathey appeals the judgment convicting him of driving while intoxicated. Cathey argues he was denied his right to a speedy trial under article I, section 10 of the Texas Constitution. We agree and therefore reverse the trial court s judgment and render a judgment dismissing the prosecution with prejudice. 1. Standard of Review We review the factual components of the speedy trial analysis for an abuse of discretion ; we review the legal components de novo. Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002); see Kelly v.

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State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005). The balancing test as a whole ... is a purely legal question. Legal questions are reviewed de novo. Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997). Because the trial court ruled against Cathey on his speedy trial claim, we must presume the trial court resolved any disputed fact issues in the State s favor, and we must also defer to the implied findings of fact that the record supports. Zamorano, 84 S.W.3d at 648. We conduct our review 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). 2. Length of Delay The length of the delay is undisputed. Cathey was arrested for driving while intoxicated on August 20, 2001 and released on bail the same day. He was not charged until almost two years later, on August 6, 2003. // One week after Cathey was charged, a trial was scheduled for November 17; on August 28, this trial date was reset to November 14. // On November 19, the trial date was reset to February 11, 2004. The case was called February 11; and trial began February 18, 2004. The record is devoid of evidence as to the reasons for these resets. Cathey s motion to dismiss on speedy trial grounds was heard November 5, 2003 and denied November 14, 2003. // After he was sentenced on April 8, 2004, Cathy re-urged his speedy trial complaint in a motion in arrest of judgment filed May 7, 2004. This motion was denied the day it was filed. Cathey and the State agree the delay between Cathey s arrest and the commencement of trial was almost twenty-seven months. This almost twenty-seven month interval between accusation and trial is presumptively prejudicial and therefore sufficient to trigger a speedy trial analysis under Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972). See Doggett v. United States, 505 U.S. 647, 651, 652 n.1, 112 S. Ct. 2686, 2690-91, 120 L. Ed. 2d 520 (1992) (noting that courts have generally found postaccusation delay presumptively prejudicial at least as it approaches one year ). Indeed, Texas courts have generally held that a delay of eight months or longer is presumptively unreasonable and thus triggers a speedy trial analysis. See Zamorano, 84 S.W.3d at 649 n.26 (citing Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App.), cert. denied, 506 U.S. 942 (1992)); State v. Guerrero, 110 S.W.3d 155, 159 (Tex. App. San Antonio 2003, no pet.) (citing State v. Rangel, 980 S.W.2d 840, 843 (Tex. App. San Antonio 1998, no pet.)). Therefore, we must consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. Doggett, 505 U.S. at 652. If we take eight months as the bare minimum needed to trigger judicial examination of the claim, it is exceeded here by nineteen months a substantial period of time given that this is a simple DWI case. Zamorano, 84 S.W.3d at 651 n.42. We therefore hold this factor weighs in favor of finding a violation of Cathey s right to a speedy trial. 3. Reasons for the Delay The State bears the burden of justifying the delay. Guerrero, 110 S.W.3d at 159-60 (citing Rangel, 980 S.W.2d at 843). When the State fails to offer evidence of the reason for the delay, this factor, too, weighs in favor of finding a violation of the speedy trial right, although not heavily. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). The State argues the delay arose out of its investigation to determine the jurisdiction of the case. However, the record contains only arguments of counsel to this effect, not evidence. The State also argues that, because there [is] no evidence that [Cathey] did anything to accelerate the process of clarifying jurisdiction, he contributed to the delay. However, the defendant has no duty to bring himself to trial; that is the State s duty. Zamarano, 84 S.W.3d at 651. Moreover, the case cited by the State in support of its assertion Dickey v. Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970) is completely inapposite. In Dickey, the Court reversed the conviction and remanded the cause to the court of appeals with directions to vacate the judgment and direct the dismissal of any proceedings arising out of the charges on which that judgment was based because Dickey exert[ed] every effort to require the State to try him, there is present in this record abundant evidence of actual prejudice to petitioner in the death of two potential witnesses, unavailability of another, and the loss of police records. Dickey, 398 U.S. at 38. We thus fail to see how Dickey supports the State s argument. Moreover, the factual premise underlying the State s argument that Cathey was aware the district attorney was investigating possible prior convictions is not supported by the record. To the contrary, Cathey testified that he was never notified that the district attorney s office was considering filing charges against him for felony driving while intoxicated, only that his attorney mentioned something that it was at the district attorney s office ; and he had no information that would indicate that the district attorney s office deliberately delayed in, any way, specifically to harm [him]. Indeed, there is no evidence that

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Cathey had a prior record or that the State had any difficulty ascertaining that fact. Nor can the State argue it was unable to locate Cathey; he testified on November 5, 2003 at the hearing on his motion to dismiss that he had lived at the same address from the date he was arrested until the date of the hearing. Because the State failed to offer evidence tending to establish the reasons for the delay, this factor weighs in favor of finding a violation of the speedy trial right. Dragoo, 96 S.W.3d at 314. 4. Defendant s Assertion of His Right to a Speedy Trial Cathey was charged on August 6, 2003 and first asserted his speedy trial complaint in a motion to dismiss filed approximately two months later, on October 14, 2003. That Cathey s speedy trial claim was framed as a motion to dismiss potentially weakens [his] case, as a [request for a] dismissal instead of a [request for a] speedy trial weakens [a speedy trial] claim because it shows a desire to have no trial instead of a speedy trial. Zamorano, 84 S.W.3d at 651 n.40 (quoting Parkerson v. State, 942 S.W.2d 789, 791 (Tex. App. Fort Worth 1997, no pet.)). But [e]ach case must turn on its own facts, and the particular relief a defendant seeks is but one fact to consider. Zamorano, 84 S.W.3d at 651 n.40 (quoting Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983)). Given the particular facts of this case, we hold the fact that Cathey first framed his speedy trial complaint in a motion seeking dismissal is completely understandable. Because of the State s delay in charging him, he could not have made a speedy trial complaint in any form for twenty-four months after he was arrested; there was simply not a court that had jurisdiction to entertain a speedy trial complaint. Because Cathey asserted his speedy trial rights promptly after the State filed a charge, this factor too weighs in Cathey s favor. 5. Prejudice to the Defendant We must assess the final Barker factor in light of the interests ... the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize the accused s anxiety and concern; and (3) to limit the possibility that the accused s defense will be impaired. Dragoo, 96 S.W.3d at 315. Of these forms of prejudice, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. Id. (quoting Barker, 407 U.S. at 532). With regard to the first and second interests, we hold Cathey was not prejudiced. At the November 5 hearing on his motion to dismiss, Cathey a retiree was the only witness. He testified that, although the case had caused him only normal stress and his health had been okay, he had worried about the case every day since his arrest. Anxiety alone, however, is not enough to cause the prejudice prong to weigh in [Cathey s] favor. Schenekl v. State, 996 S.W.2d 305, 314 (Tex. App. Fort Worth 1999), aff d, 30 S.W.3d 412 (Tex. Crim. App. 2000). However, Cathey also testified that before his arrest, he was with his vegetable gardening club; and one of the club members there that day another retiree named James Treadway offered, in the weeks following Cathey s arrest, to testify regarding Cathey s condition when he was arrested. But Treadway, who was available to testify for most of the time following Cathey s arrest, died approximately two months before the November 5 dismissal hearing. Treadway s death implicates the most serious sub-factor in the prejudice analysis, because the inability of a defendant to adequately prepare his case skews the fairness of the entire system. Dragoo, 96 S.W.3d at 315; see Guerrero, 110 S.W.3d at 162-63. On appeal, the State argues that Treadway was only one of a group of people and anyone in this group could testify. However, the State did not make this argument to the trial court or present evidence that any of these people had relevant knowledge and was available to testify; and we conduct our review in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. Shaw, 117 S.W.3d at 889. Moreover, [e]xcessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, ... it is part of the mix of relevant facts, and its importance increases with the length of delay. Doggett, 505 U.S. at 655-56. When the defendant makes a prima facie showing of prejudice, the State carries the burden of proving that the defendant suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay. Guerrero, 110 S.W.3d at 162 (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973)). Here, the State failed to do so, arguing instead to the trial court that Barker v. Wingo is completely irrelevant because it deals only with the delay between an indictment or information and trial. This argument is of course incorrect. See, e.g., Dillingham v. United States, 423 U.S. 64, 65, 96 S. Ct. 303, 303, 46 L. Ed. 2d 205 (1975) (arrest is an official accusation that triggers the Sixth Amendment right to a speedy trial); Dragoo, 96 S.W.3d at 313 ( The first Barker factor, the length of the

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delay, is measured from the time the defendant is arrested or formally accused. ) (emphasis added). On appeal, the State argues that, because it filed the information against Cathey within the two-year statute of limitations and because the delay was allegedly due to its jurisdictional investigation, Cathey may prevail on his speedy trial claim only if he establishes actual prejudice and that the State intentionally delayed the prosecution of the case to gain a tactical advantage ... or for some other bad faith purpose. However, as is apparent in the cases the State cites, this is the burden on a defendant who contends the State s delay in formally accusing him violates his Fifth Amendment right to due process. See, e.g., Marion v. United States, 404 U.S. 307, 324, 92 S. Ct. 455, 465, 30 L. Ed. 2d 468 (1971); Spence v. State, 795 S.W.2d 743, 747-50 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 932 (1991); Moore v. State, 943 S.W.2d 127 (Tex. App. Austin 1997, pet. ref d). This burden does not apply to a defendant like Cathey who contends the delay between his arrest and formal charge violates his Sixth Amendment right to a speedy trial. See Dillingham, 423 U.S. at 64-65 (holding that Marion s requirement of actual prejudice applies to claims of violation of due process and not to claims that delay between arrest and indictment violated right to speedy trial). Because Cathey made a prima facie case of prejudice, and the State failed to carry its burden to prove that he did not suffer prejudice beyond that inherent in the ordinary and inevitable delay, we hold the prejudice factor weighs in favor of a finding that Cathey s right to a speedy trial was violated. 6. Balancing the Barker Factors All four of the Barker factors weigh in Cathey s favor: the twenty-seven month delay is presumptively prejudicial and stretches nineteen months past the bare minimum previously recognized by this Court; the record is silent on the reasons for the delay; after he was finally charged, Cathey promptly asserted his right to a speedy trial; and Treadwell s offer to testify on Cathey s behalf and his subsequent death establish that the delay caused some prejudice, which the State failed to rebut. We therefore hold the trial court erred in denying Cathey s motion to dismiss and render judgment dismissing the prosecution with prejudice. See Barker, 407 U.S. at 522, 92 S. Ct. at 2188.

Sarah B. Duncan, Justice Do not publish

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