*2
authority
trial court has the
to dismiss a case
DAY,
Before
DAUPHINOT and
right
speedy
for violation of the
to a
HOLMAN, JJ.
Johnson,
612
2
State
n.
(Tex.Crim.App.1991). It makes this determi
OPINION
by applying
balancing
nation
first
test
HOLMAN, Justice.
Wingo,
enunciated in Barker v.
407 U.S.
2182, 2192,
33 L.Ed.2d
117
Complaining
speedy
that he
denied a
was
(1972). The court considers four factors in
trial and that the State called no witnesses
1)
2)
length
delay;
its determination:
of the
and offered no evidence of
Fernando
3)
delay;
right
reason for the
assertion of the
appeals
aggravat-
Santallan
his conviction of
trial;
4)
speedy
prejudice
to a
to the
ed sexual
assault of
child.
was
Id.;
resulting
defendant
from the
years’
sentenced to
imprisonment
five
in the
(Tex.Crim.App.1991),
Deeb v.
815
704
Institutional Division
Depart-
of the Texas
denied,
t.
U.S.
cer
ment of Criminal Justice. We affirm.
L.Ed.2d 907
probable
A
cause arrest warrant was is-
6, 1986,
against
factor,
sued
delay,
Santallan on June
but
The first
is
years passed
over four
triggering
before he was
arrest-
some extent
mechanism
September
days
ed on
1990. Four
determines if further
after
review is warranted.
warrant,
his arrest on the
a criminal com-
S.Ct. at
plaint
charging
was filed
that Santallan com-
on
a child
than
30 L.Ed.2d
years
age.
indictment,
prearrest
fourteen
cases where there is no
the calculation of the
does not include
bond, and,
Santallan was released on
dur-
period
in
before the arrest.
Id. Thus
ing
February
the four
case,
begin
this
we cannot
our calculations
12,1994,
through September
was
the case
set
day
arrested,
until the
that Santallan was
times,
for trial thirteen
but
not tried.
was
16,1990.
September
special settings.
Four of the thirteen were
Docket entries
show
Santallan’s motion
contends that the
calcula-
29,1994
speedy
granted
July
July
tions should start
of 1994 because
again
September
1994. Also on trial was reset several times
“[t]here
9th,
September
objected
his motion
Appellant
any
to dismiss the
no evidence that
indictment because he had
filing
speedy
been denied
these resets before
a motion for
Marion,
diligence
part
court noted
The Manon
that limitations stat-
on the
the State.
protect
prearrest
utes
defendants from a lack of
U.S. at
trial on
1994.”
part
We
On
on the
of the
18, 1994,
August
Santallan filed a motion to
overcrowding
State as well as
at the trial
dismiss for denial of a
trial. The
negligence weighs
court. The State’s
in San-
14, 1992,
July
motion
“[o]n
states
defendant
tallan’s favor
but it cannot be
orally complained through
attorney
considered sufficient
and of itself for a
*3
trial,
delays
going
in
requested
a
finding
deprivation
right
of a
of the
to a
special setting.
specially
This case was
set
speedy trial.
Id.
18,
for trial in this court on October
1992.”
As
in
length
noted
our discussion of the
14, 1992,
July
On
a notation in the docket
delay,
completely
the record is not
clear con-
special
states “Case to be
[sic] set for trial.”
factor,
cerning the third
assertion of the
2,
On October
1992 a docket notation reads
right
speedy
to a
trial. We find that Santal-
“TRIAL DOCKET CALL FOR OCT 19 1992
right
speedy
lan asserted his
to a
trial on at
Special
Setting.
Trial
RESET: NOT
14, 1992,
July
least two occasions: first on
REACHED THIS WEEK.” There is no
25,
finally
July
in a written motion on
why
conclusive evidence as to
the trial set for
1994. Between the first motion and the final
19,
proceed
October
1992 did not
as sched-
motion, the trial was
on
reset
four or five
uled.
separate
produced
occasions.2 Santallan has
The written motion to dismiss for denial of
why
no conclusive evidence as to
the trial
speedy
placed
trial
the State and the trial
was reset on these occasions.
court
contending
on notice that Santallan was
speedy
that a
requested
trial was
in 1992.
Santallan first
right
reasserted his
in his
9,
September
In the
hearing
on the
motion,
July
granted.
which the trial court
motion,
July
the
that
until
State
“not
September
hearing
the
9th
to dismiss for
25th of 1994 did the defense file a motion for
trial,
speedy
of a
denial
the trial court con-
speedy trial.” Santallan’s counsel contested
Sep-
firmed that the trial had been set for
Honor,
allegation, stating:
‘Tour
I had
tember
and told both sides that the trial
requested
speedy
orally
trial before
place
would take
after a murder ease also set
given
special
had
settings.”
Court
us
day.
eventually pled
Santallan
nolo
facts,
The trial
acknowledged
these
1,1994.
contendere on November
again
the State never
raised the issue until
filing their
appeal..
brief for this
The Barker Court held that
allegations
Because these
were uncontest-
(or
in
right
manner which the
is asserted
at
speedy
hearing,
accept
ed
trial
we will
asserted)
not
weighs
is a factor that
in the
them as evidence that Santallan did not re-
as
decision
to whether the defendant is enti
ceive
trial until more than two
after
tled
relief. Id. at
requested
speedy
he first
trial. Conse-
primary
L.Ed.2d at 115-16. The
burden
quently,
delay
question
we find that the
bring
a defendant to trial remains with the
triggers our examination of the other three
prosecutors.
courts and
Id. at
Barker factors.
However,
tinually assert his distinguishable with are instant case analysis. our Dog- importantly, Doggett. Most those prejudice to fourth Barker factor is very beginning at the gett been indicted had hearing, At the the defendant. him, never against but was case State’s had to argued that Santallan show the State is- arrested. In Santallan’s re prejudice he suffered. We have cause, probable sued an arrest warrant record, made no and Santallan viewed As we of an indictment. not on the basis prejudice. showing of affirmative previous in our examination noted holding Doggett v. contends that under factor, analysis delay” “length of Barker United, States, time between begin upon the not period of this time does issuance of the arrest warrant the State’s warrant, only upon but issuance of an arrest presumption the date of trial created a *4 indictment, arrest, formal or other actual 647, prejudice him. 505 112 S.Ct. to U.S. charge. 2686, 120L.Ed.2d 520 years passed that from the nine While the Doggett, Supreme departed In the Court presump- time of the offense previous rulings, and held that there analysis negates tively proper prejudicial, the is presumption can a that a defendant be before his ar- passed four which delay. prejudiced by sufficiently lengthy Considering and inconsistent his late 2692-93,120 rest. 655, 112 at L.Ed.2d Id. at S.Ct. right, give even less of his we assertion Dog- Doggett Court noted that at 531. may weight any prejudice to that Santallan gett up making “any affirma- “came short” initially until he asserted the have suffered showing that weakened his tive weighing four of the Barker right. In all defenses, ability specific specif- to raise elicit factors, find that his failure to continuous- we testimony, produce specific ic or items of predomi- ly right pervades his and 655, 2692, assert evidence.” Id. at 112 at 120 S.Ct. might have suffered. prejudice nates the he Nevertheless, L.Ed.2d at 530. the Court point first of error. We overrule his prejudice noted that consideration of is not demonstrable, specifically limited to the point com second of error Santallan’s proof particularized prejudice affirmative of guilt intro plains that no evidence of was every (citing claim. is not essential to necessary It is for the duced at his Arizona, 25, brief); 414 Moore U.S. 26-27 evidence into the record State to introduce & n. 189-90 & n. 38 showing guilt of a defendant. Tex.Code Barker, (1973); 2 L.Ed.2d 183 & n. (Vernon Supp.1996). 1.15 art. Crim.Proc.Ann. 407 at 92 at 33 L.Ed.2d U.S. S.Ct. accept to that The trial court is at 118. judgment, for its evidence as the basis Furthermore, Doggett pointed upon an accused be convicted no event shall recognized impairment out that Barker that sup plea without sufficient evidence to his of is the most difficult form of one’s defense port same. Id. (in prejudice prove, to so excessive that point eight years reply In to Santallan’s second more than from indictment trial) error, argues that we have no presumptively compromises the reli of to jurisdiction appeal, because the no ability ways proved of a trial in that can’t be over that appeal 112 of does not show Doggett, or identified. 505 U.S. at tice appeal gave permission to (citing 120 at 530 at L.Ed.2d S.Ct. 2192-93, plea grounds contendere 407 at 92 at from his nolo U.S. S.Ct. evidence. The State cites out- presumptive at such insufficient 33 L.Ed.2d While State, carry opinion, Martinez v. 906 S.W.2d prejudice cannot trial claim recent factors, (Tex.App.—Fort it 653 Worth regard to the other Barker without facts, filed), appeal impor ground one for part of the relative and its where was is support to his the evidence was tance increases with the insufficient Martinez, we plea at of nolo contendere. Doggett, 505 U.S. preserved Martinez had not determined that L.Ed.2d insufficiency point to our review because without sufficient evidence 40(b)(1) complied he had not with rule art. 1.15 same.” Tex.Code CRImPROcAnn. Procedure, (Vernon Texas Rules which reading Supp.1996). plain A of rule pertinent part: 40(b)(1) states no evidence has indicates that if been by Appeal perfected in a criminal case to show a defendant’s then the adduced timely giving appeal.... plea pursuant notice of Such cannot made have been be sufficient if it shows the notice shall article 1.15 of the Code Criminal Proce- appeal desire of the defendant to from the dure, dependent and thus the clause of rule judgment judgment ... but if 40(b)(1) requiring permission of the trial upon plea or rendered nolo apply. court would not 1.15, pursuant contendere to Article Code Nevertheless, than in no less three cases Procedure, punish- of Criminal and the of Criminal has ruled that the Court punish- ment does not assessed exceed plain reading such of rule is erro prosecutor ment recommended State, neous. See Rhem v. agreed the defendant his attor- (Tex.Crim.App.1994); Lyon ney, prosecute appeal in order to (Tex.Crim.App.), S.W.2d 734-36 cert. de nonjwrisdictional or that oc- error defect - nied, -, prior entry curred notice (1994); Davis v. L.Ed.2d granted shall state trial court (Tex.Crim.App.1994). light permission specify or shall *5 of the Court’s decision in Rhem where the by those matters were raised written mo- appellant apparently claimed “the State tion and ruled trial.... before any to support offer evidence to failed Tex.RApp.P. 40(b)(1) added). (emphasis court,” it judgment of the trial im Because found that we Martinez’s notice of whether offers material the State “insuffi appeal did include not the statements neces- cient evidence” or “no evidence” at all. sary properly preserve insufficiency to his Rhem, 873 S.W.2d 384. Constrained as point appeal, for review on held that we we by we are the Court of Criminal jurisdiction had no to consider whether the rules, interpretation of we must hold that support plea evidence to his nolo contendere precluded reviewing point are this of we Martinez, sufficient. 654. error due to failure to obtain the Santallan’s appeal notice of permission Santallan’s also does not court’s for our trial review.3 But, include the con- judg statements. of Point error two is dismissed. trary insufficiency of Martinez’ evidence of the trial court ment is affirmed. point, point Santallan’s is that his case when trial DAUPHINOT, J.,
was called for and he his nolo opinion. entered concurs with plea, contendere no evi- introduced DAUPHINOT, concurring. Judge, 40(b)(1) require- dence whatsoever. The rule correctly majority opinion points theAs permission court ment for trial is based on a out, the State in this case introduced no judgment plea “upon that is rendered his of evidence whatsoever. The record contains no guilty pursuant to or nolo contendere Article document, Tex.RApp.P. testimony, 40(b)(1). stipulation, or other ev- 1.15.” Article 1.15 tending guilt idence to show be- Santallan’s necessary states that “it shall be for the state yond even that a reasonable doubt or a crime showing to introduce evidence into the record any pro- guilt was committed. While evidence of the defendant and evidence said have made accepted shall duced State would Santal- be the court as basis appeal insufficiency appeal an and thus judgment for its and in no shall a lan’s event barred,1 us, person charged upon plea be his in the case before convicted any Lyon without whatsoever 734-36 To convict evidence See ground deny that the (Tex.Crim.App. and then give permission, court did not its seems lack fundamentally unjust. and to be basic fairness Appeals’ reading Our of the Court of Criminal however, rulings, require such result. intermediate merely an prove Because we are absolutely evidence to San- offered no by the decisions are bound Consequently, judgment appellate we guilt. tallan’s may, never- highest court. We pursuant to Article 1.15 of of the state was not rendered theless, appellate rule of inquire Article an Procedure.2 whether Code Criminal existing law es- displace “in no very procedure 1.15 is clear that event shall should upon plea fairness person charged pousing concept be convicted of fundamental support support requires evidence evidence without which some sufficient Thus, although same.”3 Rule when a each element the offense pleads Texas Procedure estab- or nolo contendere. guilty Rules defendant appealing requires arti- prerequisites lishes the this Because current caselaw plea, requirements course, do guilty reluctantly cle these I 1.15 concur.
not case because apply Santallan’s
plea pursuant made to article 1.15.4 was not
Moreover, upon where there is no evidence conviction, a
which to violation of due base
process Because is fun- has occurred.5 error an accused is convicted with-
damental when any
out whatsoever to evidence offense,6 key justice requires element of the TRUST, AND OVERTON BANK Appellant our when the fails to review even N.A., Appellant, assign point.7 Although a “no evidence” Ap- Helms v. of Criminal peals that “where a held PAINEWEBBER, INC., Appellee. made, voluntarily understanding^ all nonjurisdictional including defects claimed No. 02-95-124-CV. deprivation process due federal are *6 Texas, Appeals Court of waived,” process due is inherent to vol- Fort Worth. words, untariness of a confession. other process requiring that without due 9,May 1996. put on some evidence of the defendant’s “knowing there has not been a voluntary” plea.
The Court of Criminal held has ability is limited rule provide even when the State fails to
sufficient evidence to or nolo contendere as doing,
article 1.15.9 so Court of Crim
inal Appeals has decided elevate a rule of
appellate procedure above the Code of Crimi
nal and the Due Process and Due Procedure provisions
Course of Law of both federal
and state constitutions. (Vernon State, Supp. 2. 6. 575 n. TexCode Crim.Proc.Ann. art. 1.15 Gonzalez 1979) 1996). (Tex.Crim.App. (op. reh’g). Op.] [Panel (Tex.App.— 7. 629 S.W.2d Cruz added). (emphasis d). Corpus Christi ref 40(b)(1). TexR.Apf.P. (Tex.Crim.App.1972). 8. 484 S.W.2d (Tex. Coleman, (Tex. parte 5. Ex 9. See Rhem v. 873 S.W.2d 1994). Crim.App. Op.] Crim.App. [Panel