State v. Kuri

prosecution and which the conduct of the ROBERTSON, Before SEARS and Barker, weighed. defendant are DRAUGHN, JJ. 2192; Thompson U.S. at 92 S.Ct. at (Tex.App. — Houston OPINION pet.). [14th Dist.] DRAUGHN, Justice. procedural history A brief of this case appeal by This is an the state from a was indicted on Au- reflects gust charged delivery dismissal for lack of a trial. Appel- with lee, attorney, weighing an possession was indicted for the of- of cocaine at least However, length 20,1989, is grams. the case was continuances. On June following degree triggering on the state’s motion to some mechanism. dismissed presump the trial denial of the state’s motion court’s some results which Until Approximately two-day necessity for a continuance. tively there prejudicial, later, year on June go one inquiry into into other factors again charged only indicted and 2192. the balance. delivery of cocaine which the offense appellee has asserted Since as the arose out of the same transaction prejudice, must court found actual parties agreed to a initial indictment. The into other factors. inquiry make the setting April for trial on of the case length we must consider 23, 1991, Judge April On Lanford other delay only conjunction with the granted appellee’s Motion to Dismiss First, we must factors and circumstances. relevant facts Speedy Lack of Trial. Other by balancing what determine procedural details of the case be will in length delay of this case. the relevant opinion as in the remainder this provided of speedy largely hinged The trial court its the issues discussed. on conclusion that trial determination its in balancing process The set out delicate delay length of in there a 32-month trial Wingo Barker mandates that the Appellee and trial ar court this case. court, we, court, appellate as an consid- including sepa three rived at this total er the of the state and conduct both The is a periods. rate time first ten-month determining speedy in trial defendant Au initial indictment on period from the in issue. one factor of the four set out No 1988, 20, 1989, 19, when it was gust June necessary sufficient or to deter- Barker is The sec on motion. dismissed the state’s Rather, they speedy mine a trial violation. dismiss period is 12-month from the ond togeth- are related and must be considered 22, 1990, during which al date until June along other to assist us er factors indict any carry balancing pro- out the delicate The third is a ten-month ment. period Barker, 533, at 92 at cess. 407 U.S. S.Ct. 22, 1990, the of the second from date June clari- 2193. To facilitate discussion and for 23, 1991, Judge indictment, April when separated in ty, we have the four factors Dis appellee’s Motion to granted Lanford opinion, they are but interrelated Speedy Trial. miss for Lack of examined in that context. will be ten- The that the initial record reveals the trial court period

LENGTH OF DELAY month which brought primarily, about included was Length is not alone parties’ agreed From the date resets. speedy The trial can right measure. 19, 1988, indictment, August original quantified specific be into a number 20, 1989, the on June until its dismissal 521-522, 92 at days or months. Id. at S.Ct. eight re- agreed no less than length specific Thus no of de 2187-2188. reset, parties the next-to-last sets. In automatically lay constitutes violation setting 19, May to a trial had Hull, state if it would asked the Appellee 221; Easley v. S.W.2d at Judge Lan- later agree to a reset because 742, denied, (Tex.Crim.App.1978), cert. аttending judicial be seminar ford would 58 L.Ed.2d S.Ct. appellee did not want to on that date and (1978); In Chapman, 744 S.W.2d at 136. visiting judge. try the case before Barker, years passed, five had 19, it agreed to reset to June state Supreme acknowledged that this was Court setting. be out to the last which turned long, against found the defendant too prosecutor setting, the state Prior to this counterbalancing fac there were because a state’s witness Barker, asked for reset because tors. 407 U.S. Appellee’s re- counsel was unavailable. 2193. One of these factors Barker was first filed its Motion right, fused and state the defendant’s failure assert Appellee vigor- acquiescence in June 14. as evidenced various Continuance com included in The record is should not be ously opposed this motion. question There is no putations. the court denied the motion. unclear when agreeing that it to resets is The court’s of fact states defendant’s conduct 14, however, balancing the state- was denied on June in the a factor to be considered relating Barker, indi- ment of facts process enunciated Barker. сates that the court carried the matter over at 2192. objection without to June delay included period second interim, on June appellee. from determina by the court in its Motion for Contin- the state filed its second of the first from the dismissal tion ran uance, another essential witness when sec indictment to June testify until later would be unavailable grand indictment was voted ond requested that week. The state a two- period approximately jury. This was a vigorously op- day Appellee continuance. period find this time months. We twelve posed even this minimal continuance. excluded from the should also be Judge parties they Lanford asked computation. There can be try in the would able to the case later guarantee when there are no formal week, Ap- during following week. being charges pending, person unless the responded very pellee’s counsel that he way. at restrained in some opposed Judge much the motion. Lanford person formally “ac only taches when a is granted first the state’s Motion for Con- cused,” which occurred here with the sec tinuаnce and set the case for trial the fol- Marion, v. ond indictment. United States lowing Monday. then fur- The court heard 455, 459, 307, 313, 92 30 404 U.S. S.Ct. argument by appellee’s ther counsel State, (1971); Courtney v. 472 L.Ed.2d 468 stated: 151, (Tex.Crim.App.1971). ‍​​​‌‌‌​​‌​​​​​‌​‌‌​​​​‌​​‌‌​‌​​​‌‌​​​​​‌​‌​​‌‌​​‍And S.W.2d 153 appear “I I wishy-washy, hate to but charges formally dismissed as once going have reconsidered this. I am here, guarantee longer speedy trial is no deny the I Motion for a Continuance. longer no suf applicable because citizen ought go. think the State Please be liberty. on his fers restraints United back at 1:30 this afternoon.” MacDonald, 1, 8-9, 102 v. States day The state was forced later that same 1497, 1502-1503, 71 L.Ed.2d 696 S.Ct. Indictment, file a Motion to Dismiss the State, (1982); 455 Stewart granted. which the trial court ref’d). (Tex.App. pet. — Dallas persuades Our review record guarantee speedy trial including us that the trial court erred minimizing Amendment directed at Sixth period speedy this initial ten-month for trial possibility lengthy incarceration be purposes. opinion, In our the trial court trial, reducing liberty fore restraints apply proper balancing did not test bail, being shortening the dis out on because it did not consider the conduct of pending ruption of life results from which required by the defendant as This Barker. MacDonald, charges. 456 U.S. at criminal period initial was almost exclusive 7, 102 indict appellee’s at 1501. Once ly brought by agreed by about resets dismissed, free and under ment was he was appellee. previously We have held formal action no restraint. No adversarial agreed time a defendant’s re covered against him. He pending the state was speedy sets is to be excluded from trial affairs, his practice was free to tend to his State, consideration. 769 Caicedo life. He was profession, go on with his (Tex.App. S.W.2d [14th — Houston position than other citi no different pet.); Lewis v. Dist.] subject of a criminal might zen who be the (Tex.App. S.W.2d [14th —Houston investigation. 102 S.Ct. at 1503. 1985), (Tex.Crim. Id. aff’d, 711 S.W.2d Dist.] distinguishes this This lack of restraint App.1986). firmly a defen We believe that on case relied agreement case from the Owens dant’s to various resets is incon appellee support the inclusion of speedy sistent with assertion of a trial speedy right, preindictment period and the such resets time in the covered Thus, analysis. Owens, speedy purposes, trial for trial State v. (Tex.App. only period [1st Dist.] there remains ten-month - Houston ref'd.). Owens, pet. In was the accused 22, 1990, from the date of the second June jailed days for 223 before indictment. indictment, 23, 1991, April Judge when Clearly, the state had restrained ac granted speedy trial Lanford motion to liberty in cused’s When the state Owens. period very dismiss. This of time affords part continued hold for Owens the better support little for a violation indictment, year of a without an it activat guarantee. speedy trial The record re protections ed the Sixth Amend only setting flects an that trial Marion, speedy provision. ment’s trial agreed setting April which 463. The 92 S.Ct. at conclusion 1990. Before was filed November formally is clear: an individual must be setting, made mo charged, jailed, or restrained in some In tion for a fact the implicate provi manner trial motion relevant to a sion the Sixth Amendment. Speedy Motion of a to Dismiss Lack regard peri- In this preindictment time Trial and was filed on November od, the trial court made a conclusion of law not in Apparently, was interested state should have reindicted trial, dismissal, only in appellee immediаtely after dismissal of the counting on the court to include first indictment the case had merit. during and indict the time after first opinion, our this falls short as a somewhat analysis. ment in its Without in the conclusion of law. It is more nature improper stacking prior such an judge’s opinion dis- to what the attorney carrying his periods, seriously trict should do out cannot claim responsibilities. It uniquely official during a speedy was denied discretionary function of the district attor- period. only He not this final ten-month ney to decide when and if he has sufficient during speedy not ask for a trial the did evidence to seek a new indictment. Courts period, he first months of this five permitted constitutionally are not under delay acquiesced in further oc whatever process the due clause abort criminal agreeing setting curred trial prosecutions they disagree because April five months later on some prosecutors’ decisions as to when Clearly, constitu he neither asserted his seek an indictment. Lo United States v. guarantee, nor was it speedy tional trial vasco, 97 S.Ct. during period. time violated this (1977). 52 L.Ed.2d Nor should they be allowed to do so retroactive guarantee. analysis speedy trial THE DELAY REASON FOR duty are under no to file Prosecutors length delay of Our discussion charges they they before are satisfied that balancing factor. largely subsumes this will be able to the defendant’s establish development in no real the record There is guilt beyond at a reasonable doubt. reason initial ten-month as for the at is 2049. There no Sixth delay, than to inform us other right speedy indictment. Amendment appellee agreed to resets which state and

MacDonald 456 U.S. most the ten months. Inas- consumed 1502; Delario, 912 F.2d United States v. period of much this first time (5th Cir.1990). as except for two- agreed by appellee find the trial court’s conclusion We state, request by the day continuance error, he law to be in and that erred really reason for the unknown in his including preindictment period repre- appellee, Surely, the immaterial. will, however, analysis. speedy trial We experi- by competent he was sented as period later under the due discuss this time counsel, agree to resets enced would not process Fifth Amendment of clause of the not in his best interest. The that were the U.S. Constitution. speedy logic applies period originally es that he asserted his same to the third right opposed the state’s mo- time. trial when during days tion for continuance two time, period As to the second have we However, original period. this time held it to be excluded from constitutional speedy find no motion for trial written speedy analysis trial because there was no appellee’s Nor did counsel record. pending against appellee, formal accusation hearing on mo- mention at the the state’s any nor was he under restraint. Since it previously for that he tion continuance had includable, of the rea- a discussion Indeed, speedy rights. asserted his trial speedy sons for the under a resets, agreed eight prior with the analysis would We re- be irrelevant. will pressed do so. would hard have been serve such discussion for our later “speedy appear trial” no where words analysis under the due clause motion in the record of the on the Fifth Amendment. In view of numerous continuance. resets, agreed it would appear OF THE RIGHT ASSERTION appellee’s opposition to state’s Motions Again, prior our because of reason for Continuance were more of a tactical ing delay analysis, under the length of seeking dismissal, move rath- directed largely except, to issue is moot some ex er than speedy tent, period for the initial ten-month time argu- sequence of events and the Clearly, after the first indictment. the sub ment of counsel the tac- appellee’s support sequent intervening, preindictment period against any tical conclusion and militate moot, of time is ex because part. on appellee’s trial motivation presses brief, in his there can be no asser hearings At the the state’s time of of a tion when is no there continuance, motions case ten charge pending. formal Likewise the third counsel, during the Appellee’s months old. period from this excluded discussion hearing, argument made continuance made no for a motion hanging had been over trial, matter fact, the one nine head for months. setting that covered the bulk of the during he failed nine to mention those By time from indictment. months he made no motions for a motion, granted, dismissal which the court trial, expressed no a and concern about presumed prior he peri that the two Instead, speedy eight he agreed trial. to way ods would be included. In no his could resets, specifically to asked the state motion for dismissal be considered a retro setting did reset the to last he next fact, request speedy active for a In visiting try not want to the case before a by dismissal, such motions a defendant for judge. Obviously, obtaining speedy trial a trial, speedy rather than for clearly a are primary was not consideration. his may relevant and the strength weaken of speedy his asserted claim for a trial. Phil Appellee’s an trial desire for immediate State, (Tex. lips v. 650 S.W.2d requested apparently when the arose state 1983) Crim.App. Op.] (citing McCar [Panel temporari- its first of continuances because State, (Tex. ty v. 498 S.W.2d 215-16 ‍​​​‌‌‌​​‌​​​​​‌​‌‌​​​​‌​​‌‌​‌​​​‌‌​​​​​‌​‌​​‌‌​​‍pros- ly witnesses. The state’s unavailable Crim.App.1973)); Crowder prior time he ecutor testified to the (Tex.App. [14th - Houston he appellee’s informed counsel that 1991, pet. ref’d). Dist.] continuance, going file a motion for to Thus, request suggestion we are to determine of left whether there had been no Also, in appellee speedy right speedy by appellee. asserted his trial trial concerns during period prior the initial spite cooperation ten-month from the of the state’s agreeing time of the indictment until reset requested first the state to the last following visiting a appellee appellee moved for dismissal a judge, the denial to avoid two-day motion vigorously opposed its for a continuance. for contin- motions Retroactively, appellee by implication alleg- opposition uance the state. His filed any, opposed prejudice, to strong

was so that he even a two- Barker standards: suggested by appellee. There are three interests day or one-week reset Thus, determining prejudice judge. appellee’s trial sudden desire be considered when (1) prevent “speedier” appear be to the defendant. These are: for trial would incarceration, position oppressive pre-trial оc- by the disad- motivated tactical as. (2) Owens, supra; vantage in After curred in to minimize which he found the state. accused; agreed anxiety nine and concern of the having to resets as outlined for months, possibility that the defense he could not toler- to limit the will found Barker, days. impaired. 407 U.S. at ate even a of two more purposes, 2193. For trial S.Ct. at Barker, balancing applying In test prejudice required. proof of actual is not the appellee we must look to the conduct of showing” Appellee must make “some good whether he in faith as- determine prejudicial. has been Phil- right his trial. After serted a As lips, at 402-03. indicated reviewing record, we find the discussion, previous two our the- first are resets, opposi- his timing numerous implicated not here. continuance, argument made tion to a hearing, during his counsel defense, appellee’s To show reset, opposition two-day even do not presented Boyd, private investi- he Gene support the court’s employed by his gator counsel since speedy trial. At the asserted his witness, Boyd potential testified that time of the initial on the motion Koonce, accidentally Mary Karen had continuance, and later at the December, six months drowned hearing, appellee dismissal asserted first indictment. after the dismissal against appellee the state had no real case client potential He that she was a testified simply stalling for time. If the and was spoken he had and then a former client and that, appellee truly why then did believed telephone and was to her twice on the agree two-day suggest- reset arrangements meet with trying to make bring ed judge and matter complete thorough inter- her. He did not trial, allegedly case so the weak anytime during the ten with her at view exposed state could be and defeated? pend- the first indictment was months that dismissal, trial, Again, witness, ing. He said she was a reluctant goal. In appears to have subpoe- been she had not been admitted that advocacy system, tac- our adversarial such settings in during naed the last three expected. How- proper tical moves are March, 1989. He testi- May, and June of ever, purpose when the of such aсtions informa- fied he “learned that she had aborting public asserted as a basis for regarding tion the location we, grounds, as a trial on 18, 1988,” day alleged in August court, reviewing examine the record must current preparation indictment. purpose. to determine their true attempted he to April of trial date of only then learned her locate her and record, on our of the Based review Finally, her accidental death. we note that failing court erred to con- find the trial six months after the drowning occurred appel- conduct of the sider and balance the dismissed, indictment which dismissal required by speedy trial lee as Barker for appellee’s brought the unwill- about in analysis, and thus abused his discretion ingness accept two-day trial as to his finding appellee that asserted apparently had previously Boyd outlined. June, simply oppos- in trial the during with her six no further contact ing the limited motion for continu- state’s preceding her death. months ance. Boyd he had contacted also testified that THE PREJUDICE APPELLEE TO presumably dur- past, time in the at some indictment, first Continuing balancing process, ing the timе of the our witness, Zuniga, a former Korina prong potential fourth of the we now address the hedged carefully his state- judge; rather he secretary that he appellee. of He testified testimony. her ments re- about had her and submitted a interviewed knowledge port, she had about the and that to hedged testimony as Similarly, he appellee on Au- location of or whereabouts secretary missing former what the 18,1988. she was no gust He testified that appel- testify concerning to appellee would address, original and he longer her that of the of- on the date lee’s whereabouts steps He had taken certain to locate her. case, made a fense. In her he written records, county had stated he had searched to report, appellee refused but counsel for search a social securi- a driver’s license state or for the produce it either for the He if ty number search. was asked he had not exhausted judge. He admitted attempts address these revealed a correct determining her for address. all sources open-endedly, rather “Not responded specifically state that all He did not also point.” this And he that she had to stated responded had he had utilized the sources that “could material” in de- information repeatedly phrase used the negatively. He given times termining appellee’s location at point.” stated she up “Not He that during alleged the He day the offense. preceding employ the appellee’s had left that he not exhausted also testified had have year appellee that would every finding the witness. In means made she left. He knowledge as when cross-examination, he response stated he, why coun- explanation defense appellee’s he counsel had submitted to sel, appellee not have main- or the would report say had what the witness about if she tained with such witness contact appellee’s on the al- about activities defense to the important leged offense date. The state asked for a against charges pending had which been copy report. Appellee’s counsel she year which him since June quickly objected grounds on the that it was in his apparently employ. left his Nowhere work-product under the discoverable that either of these testimony did state privilege. made no favorably He offer to submit it would have testified witnesses judge facts, for his in determin- appellee. spite consideration In of these ing materiality concerned ac- wit- suffered judge found that the testimony. Boyd judge ness’s testified that he prejudice. tual We find secretary employ making believed the had left erred abused his discretion year during preceding glaringly on the weak evi- such a learned after the fact that she left dence him. before appellee’s employ. appel- He admitted acknowledge that standard We lee have known she left his would when speedy prejudice Texas to show employ. law firm’s He also admitted that however, prejudice not actual purposes, he did not take a formal written statement showing potential prejudice some from her. Chapman, delay. resulting from so, find that there presented is S.W.2d at 137. Even we our evidence produced to to show was not sufficient evidence sufficient witnesses’ prejudice show the defense testimony was material and its absence evi even prejudicial. purposes. therefore As to deceased witness, some dence to show he testified that she was reluc- is sufficient re satisfy speedy trial witness, yet thereby subpoenas tant were issued ap quirement, still find no violation of during any settings trial we for her of the rights pellee’s speedy trial first indictment. He constitutional under the took stated, single factor in the He as formal from her. did not because statement is to warrant balancing process sufficient testify testify favorably she would deprivation right the to day finding to of of provide appellee an alibi for the Barker, supra; Chapman, alleged Presumably offense. conclude, in the been, engaging testimony supra. have We after knew what her would balancing process required, that no yet give not that information to the delicate did resulted; previous In our de- presumptively prejudicial delay 92 S.Ct. at 466. concerning of question discussion the acquiesced delay in the tailed that the prejudice purposes, claimed; timely failed to assert a and he evi- found that there was sufficient fac- right. We find that these prejudice justify to even dence of shown tors, discussed, and counterba- the others showing required minimal to invoke outweigh showing of lance minimal right. It then that constitutional follows potential prejudice. The trial unarticulated evidence, opinion, in fails the same our dismissing cause on judge erred in of satisfy the more onerous burden grounds he failed to required showing prejudice as substantial apply proper balance constitutional process justify dis- by the due clause standard. preindictment delay. missal for Id. it is clear from the state While 466; Spence U.S. at S.Ct. appellee’s primary claim ment of facts that (Tex.Crim.App. decision based trial court’s were 1990). alleged right to a of his violation Lovasco, Supreme In Court found trial, appellee also made reference delay did preindictment that an 18-month to the Fifth Amendment in his Motion process the due clause even not violate Speedy And the Dismiss for Lack of Trial. though preju- the defendant was somewhat in No. found сourt its Conclusion Law died material witnesses diced because two pre-trial delay appel also violated Lovasco, during this interim. rights lee’s under the Fifth Amendment 97 S.Ct. at 2046. One the deceased the U.S. and under Article Constitution guns had the source for the witnesses been Texas Section Constitution. subject of the firearms were the which state, error, point in conceded its fourth alleged against in the indictment violations ruling part upon in that the court based its allegedly The other witness was Lovasco. Due Fifth Process Clause of the contacted this de- present when Lovasco Amendment and the Due of Law Course guns. source to secure the ceased witness Provision of the Texas Constitution. We if to the more onerous emphasize As preindictment pe now address whether required pro- prejudice due standard riod of months twelve violated preindictment delay, the court Lo- cess provi these constitutional pointed out that Lovasco specifically vasco sions. witnesses would “did not state how the guarantee bringing primary against they had will- have aided defense been charges by overly provided criminal stale testify.” in the case before ing to Id. Nor imposed in stat- the time limitations law us, appellee present any specific evi- did limitations, utes of but the Due Process ‍​​​‌‌‌​​‌​​​​​‌​‌‌​​​​‌​​‌‌​‌​​​‌‌​​​​​‌​‌​​‌‌​​‍missing witnesses dence as how the has a Fifth Amendment also Clause fact, have his defense. would aided protecting against play limited role to furnishing objected appellee’s counsel delay may prejudice an ac- oppressive report as to the private investigator’s Marion, 404 right fair trial. cused’s to a missing testimony of one possible 324-326, at 465-466. testimony If had been favor- witness. process of due violation because report Claims appellee, surely the would able dif- delay preindictment evaluated judge furnished to have been al- ferent onerous standard than prejudice and more or substantial show actual leged Due Pro- speedy trial violations. The from The trial court’s resulting its loss. the Fifth re- simply cess Clause of Amendment prejudice of actual pre-indictment delay evidence, quires the evi- supported dismissal pre- alleged prejudice if the can show that that was dence of (1) preju- to his the level of caused substantial does not rise to sented trial, an viola- required fair show a due dice Marion, gain the Fifth Amendment. intentional device state to tion under at 466. advantage Id. at 404 U.S. at tactical over accused. that, in his his assessment of case and had met bur

Even to rein- impli opinion, appellee going to was not be den to sufficient show inquiry, his does he testified that process cate due burden dicted. further stop not He also show that appellee’s attorneys there. must promised he never preindictment delay an was intentional prose- indicted or never be would gain advantage device to tactical over him. limi- applicable statute of cuted within sought There is no evidence that the state addi- regard without to period tations gain a advantage to tactical over defen might uncovered tional be evidence by preindictment delay. dant The trial left. after he court made a conclusion of law that by a Appellee seizes on this evidence intentionally one de caused to а constitutional prosecutor former claim parting prosecutor who amade conscious pro- his Fifth Amendment due violation of prosecute. decision This not to conclusion did rein- cess because the state not by the more in of a fact court is the nature agreed dict The trial court him sooner. label, finding, regardless it of its position legally appellee’s with conclud- preindict sufficient establish to merit, ed that if the ease had the state “deyice gain ment to delay time immediately appel- reindicted should have advantage tactical over the accused.” lee the first indictment was dis- after The evidence does show that a former spite This in of the fact that the missed. assigned prosecutor initially who state’s first indictment was dismissal supervisor the case had a conflict with his agreement brought by the court’s about as whether an indictment should be opposition to appellee’s vigorous with the sought. He concluded that it should not two-day motion continu- state’s be, he did he had because not believe ance, the trial overruled. Had which court еnough evidence secure a conviction at granted tried the motion been case resigned January the time he 1990. He later, the merits of the state’s days two bill, testified he did not seek a no nor he did finally case been determined. could have file, close because felt like he he had However, not, it was and the court given supervisor been a directive his state’s new in-' summarily terminated the that there was sufficient evidence to seek a grounds because dictment on constitutional prosecute new indictment and the case. enough. quickly it was not filed explore He he every testified that did not stated, As con- court’s so-called possible evidentiary avenue the ease and clusion as to the state’s indictment of law prosecutors thát he other occasionally more in the nature of the timetable is go differed as to whether to forward with a judge’s as to the district at- what case. He also he testified that was not torney carrying out his should do official aware of additional and new evidence later responsibilities. We reiterate that it is the subsequent prosecutor, obtained who responsibility attorney, district sought and obtained a indictment new when, representative, to decide the state’s against appellee after had left. He he also if, to seek a there is sufficient evidence conveyed testified that he to his immediate per- are not new indictment. Trial courts thought successor that he the case should mitted clause under due presented jury. grand But simply prosecutions criminal abort also admitted that the ultimate decision as prosecutors’ they disagree with the deci- seek a whether to new indictment on an indictment. sions as to when seek appellee’s his case was be made suc- Lovasco, S.Ct. at 2049. cessor. also after He testified that he had duty file Prosecutors attorney’s left the district office had no charges they they case, are satisfied that authority further over in- before will the defendant’s appellee’s opinion. formed his be able establish counsel of guilt doubt. beyond At this he also reasonable advised impose counsel his at 2048. And to such immediate successor in the attorney’s duty district hаve a deleterious effect both office would testify willing cooperate and to upon was now accused and upon the of the accompa- prosecutor appellee. The protect against to itself. ability public order, the indi- power attorney to and interviewed judicial There is no nied to, he a indict- on the evidence prison. a constitutional Based vidual MacDonald, ment. 456 U.S. individual and additional received from that 1502; Delario, F.2d at 769. Nor prosecu- he from federal evidence obtained function to monitor and ledger, it the trial court’s drug of a in the form torial sources prein- pace of the state’s second-guess indictment, to seek an the decision he made except in the rarest of dictment activities At grand jury. on which was voted circumstances. Lanford, appellee Judge hearing before He as- this evidence. sought to discredit time only limitation on reindictment weak and case was that the state’s serted determining possi- purposes of tables for unwinnable; were that its witnesses other than sub- due violation ble all credible; previously had that the state prosecutor delay by stantial and should evidence available this weak advantage. The trial gain to a tactical short, appellee’s In sooner. finding in have acted specific judge made no such mini-trial conduct a showing attempted that case, no evidence counsel and there is gain in advance on asking judge indictment to to rule delayed the state its new case; credibility advantage. Appellee seems strength such a tactical of the state’s prose- witnesses; former in which it suggest that because one the manner of its make the that he could not investigation; cutor and then believed its conducted appellee, it be sum- against should case summarily the case based dismiss aborted, regard to addition- without marily hearing the Without limited evaluation. might be obtained al evidence re- witnesses or testimony of the state’s professional regard to the without credibility, adjudge viewing the evidence charged succeeding prosecutors of those indictment. Judge Lanford dismissed deciding responsibility of with the law so, agreed with doing specifically he charge or pursue the criminal whether to ease, evaluation prosecutor’s former prosecutor The immediate successor not. quoting him: by directly that she appellee’s case denied assigned to Mr. with agree the record “I still as- departing prosecutor’s with the incredible wit- thousand Kelley that a case, and it future of the sessment of the incredibility.” equal nesses still testify. so stipulated that she would was agreement Notwithstanding judge’s felt the case to prosecuting supervisor opinion as to obtaining prosecutor’s And after addi- the former prosecutable. earlier, months evidence, prosecutor credibility as- fifteen the final tional witness the state specific he had suffi- signed to the case determined made no he jury beyond gain a tactical to convince a indicting cient evidence delayed guilty was evidence reasonable doubt there advantage. Nor was that deter- support he made of the offense. Once brought forward at mination, proceed. duty bound preced- he During the interval finding. such indictment, obtained the state ing new prosecutor’s the former Regardless of it, evidence, and based evaluated additional the case at the the merits of opinion as to evaluation, and obtained sought on that some left, showed that the evidence obligated to do. as it was indictment new left, pro- staff was additional time after the evidence as to when The determination attorney’s and a office to the district vided is sufficient prosecution available assigned prosecutor new clear-cut, and is seldom a conviction obtain had been reviewed a letter which case. He con- reach persons often will reasonable attorney client was from an whose received Lovasco, flicting conclusions. alleged drug transac- in the participant supreme As the 97 S.Ct. at The client incarcer- appellee. tion with Lovasco, prosecutors court stated and the attor- prison, ated in an Oklahoma they are until charges duty to file client under no prosecutor that his ney advised guides to us ment serve as useful they delay the accused’s can satisfiеd can establish doubt, beyond interpreting due in our Texas constitutional guilt reasonable and simply of in that process permit rights does not a court due course law under Evans, prosecutions they supra; criminal regard. Chapman abort because v. See judgment disagree prosecutor’s State, as supra. v. We note that while Hull provided separate point to when to seek an indictment. appellee reply issue, provided 97 S.Ct. the due of law course analysis argument, virtually or no distinct find the fails to that We evidence show referring analogously those other than suffered substantial process of addressing the due clause cases preindictment delay, defense by to his is under- the Federal Constitution. This show and there is evidence to only prece- are standable these solely delayed gain state the indictment dents available. appellee. We advantage a tactical over finding, if he find the trial court erred carefully rele analyzing the After find, due appellee’s process did so cases, have vant State and Federal we rights under the Fifth Amendment werе con separate independent come to and the preindictment in this violated required to show clusion that the standards case. pro a violation Fifth Amendment due of rights preindictment delay regard appellee’s With to whether cess caused I, rights to “due rea constitutionally course of law” under art. sound and well are Constitution, 19 of the are persuasive Sec. Texas we are soned. Those standards analysis required separate govern to make a under the due they and we find should (Tex. State, I, Heitman v. 815 S.W.2d 681 19 of provision course of law art. Sec. State, Crim.App.1991). Spence We first note that v. ‍​​​‌‌‌​​‌​​​​​‌​‌‌​​​​‌​​‌‌​‌​​​‌‌​​​​​‌​‌​​‌‌​​‍Texas Constitution. general made only (Tex.Crim.App.1990); trial court reference to Deeb 795 S.W.2d 743 (Tex.Crim.App. this section its conclusion law v. stating simply pre-trial delay 1991); Lovasco, supra; v. v. U.S. U.S. MacDonald, Marion, unreasonable and violates defendant’s su supra; U.S. rights guaranteed Therefore, applying previous under this other sec our pra. delay, tions of Federal and State Constitu find analysis preindictment of the hearing, tions. At the neither the trial to the extent that the trial court erred the appellee grounds court nor made reference indictment dismissed this analysis applicability rights due course of law due provision course of law in the Texas Consti violated Texas Constitution were Indeed, preindictment delay. tution. the entire was di by the alleged at the of appellee’s rected violation judgment the trial court’s We reverse which, rights, constitutional reinstat- dismissal order the indictment discussed, preindictment do not include this ed. delay. However, inasmuch as the state it, generally implicated have SEARS, J., later date. to dissent we will address it. Justice, dissenting. SEARS, the Texas and Fed- Heitman holds that respectfully I dissent. rights to due eral constitutional course of cites Lovasco process, respectively, sepa- majority due law and Supreme dictate Court’s analyzed rate and distinct and must be then overlooks appellate concern should accordingly. Heitman that the main does those provide any guidelines analyz- us with or not the “violates whether lie justice which provisions [concepts] ing Texas constitutional where fundamental political precedents. institu- specific court at the base of our civil there are state Lovasco, U.S. necessarily We assume that the federal tions.” United States 2044, 2049, L.Ed.2d precedents applying interpreting court 97 S.Ct. Holohan, Mooney v. preindict- citing due relation replaces findings 340, 342, majority 79 L.Ed. It (1935). my fundamental its own. claims It violates trial court with to allow the State to concepts justice support a does not record by dismissing the continuance grant itself a delay. The trial court thirty-two month the trial court denied indictment after case was set noted that “the defendant’s continuance. It also vio- State’s motion for 23, 1991, 32 more than April trial on concepts of fairness my lates fundamental initial indict months after his arrest and reindict, no then to allow the State to majority held this to be an ment.” The witnesses, and force new evidence new discretion, the time and found that abuse of after he has lost two the defendant to trial agreed to be exclud resets was covered delay. due to the State’s alibi witnesses purposes of a calculations for ed from found in its conclu- specifically The Court However, the trial court’s speedy trial. delay pre-trial “the sions of law that factually month finding of a 32 guar- unreasonable, and violates Kelley, assistant district Pat an correct. Sixth, Fifth, Defendant anteed the through attorney September of 1983 from to the United and Fourteenth Amendments 1990, that the defen January of testified I and Article Sections States Constitution August of initially indicted dant was It is of the Texas Constitution.” 10 and 19 20, on June The case was dismissed appellate in Texas that the well established Wisner, assistant a successive 1989. Vic ruling for a trial court’s standard of review in June attorney, took over the ease district it’s discretion. is whether the Court abused reindicted He had the defendant of 1990. 135, (Tex. State, 137 v. 582 S.W.2d Sinegal finally the case was on June State, 790 S.W.2d Crim.App.1979); Moss v. 23,1991. There was a April set for trial 731, (Tex.App. 732 Dist.] [14th - Houston initial indictment delay from the ten month 1990, Supreme pet.). The United States Then of 1989. the dismissal June applied the of discretion Court has abuse 20, indict to the second 1989 from June speedy trial reviewing a standard when delay. ment, month there was twelve Taylor, dismissal. United States ten month Finally, there was another 101 L.Ed.2d trial. All indictment until the second from (1988). is to be appeal, all evidence On 32 consecutive up to light delays these add in the most favorable viewed State, ten ruling. King v. the initial trial court’s exclude months. Even we (Tex.App. indictment to [14th the first months from — Houston court pet.). appellate “An dismissal, year delay Dist.] between and the findings court’s must defer to the trial reindictment, there still dismissal and of discretion.” fact a clear abuse absent delay from the second a ten month remains State, 824 S.W.2d Spillman v. The Texas Court until trial. indictment ref’d). pet (Tex.App. - Austin Chapman v. Ev Appeals noted Criminal judge the sole of the (Tex.Crim.App. The trial court is ans, 744 S.W.2d given the as well credibility to be witnesses right cannot “be 1988), speedy trial testimony. given weight to be their as the days or specific number quantified into a (Tex. Whitten months.” ref’d). 1992, pet App. Dist.] [1st —Houston month that the ten majority The held engage in its does not appellate An court support very little period of time “affords view, but decides whether own factual speedy trial for a violation findings supported judge’s fact the trial on to state majority The went guarantee.” “If the trial court’s by the record. stacking of improper an “without ... by the rec findings supported fact are cannot prior periods, time liberty to ord, court is not at appellate an denied a that he was seriously claim them, reviewing court and ... disturb period.” ten-month during this final question of whether may only the address statement, replaced majority With applied the law improperly court the trial its own. finding of the Court with to the facts.” Id. Commission, Employment finding and the Texas majority The also held the find her. These court, “asserted his been unable to the defendant have trial,” supported who were ex- not alibi witnesses women were testify assistant district pected the record. attorney Kelley that the de- Pat testified at the scene crime request upon fendant Based Mr. alleged by made the State. date find held that: “We majority testimony, the found that the Boyd’s Court resets, timing of his numerous prejudice. had suffered actual defendant continuance, argument opposition to a credibility of on the majority has ruled during hearing, made his counsel credi- found that he was not a witness and reset, two-day opposition and his to evеn a power or simply do have the ble. We the trial support do not court’s credibility rule on the of wit- authority to right speedy trial.” he asserted his nesses. Again, majority choosing engage is the assigned'error not to the The has State finding. testimony The in its fact own law; facts conclusions of findings of attorney Kelley, Pat an assistant district binding therefore, they I believe are on case, charge the does who had been to a Court.1 We are restricted review finding support the the court’s applied properly the law was whether right asserted defendant his (su- Chapman It noted in facts. was position trial. not the of this court to It is “Supreme pra), Court established judge credibility witnesses or four balancing suggested test and factors realign weight to their given testi- be determining an ac- whether consider mony. improper majority is to do It for the The cused has been denied so. (1) factors, though not exclusive are: majority Finally, the that “in our states (2) length delay; reason for the opinion presented is not the evidence suffi- (3) delay; assertion of the defendant’s cient to that the show witnesses’ [defense] (4) right; prejudice to defendant testimony was material and absence [their] delay.” Chapman resulting from prejudicial.” majority therefore The held added)2. on Chapman 136 went (emphasis finding that the court’s that the defen- “none of the four factors to indicate that prejudice dant “had suffered actual be- necessary alone previously discussed is State,” cause of the caused deprivation finding sufficient to supported by was not the record. Once trial,” right at 137. to a again, majority inserting itself as the The trial court found: fact finder. (1) right had asserted his The defendant issue, At the on the speedy trial. to a Boyd Gene testified that two material de- (2) set preferentially had The case been Mary fense lost. witnesses were now 20, for June 1989. Koonce died on 1989. A December (3) Wilson had been H.P.D. Officer Nick witness, Zuniga, has' second alibi Korina go on vaca- subpoenaed, but chose found. disappeared and cannot be Mr. testifying. tion instead Boyd they have tried all testified (4) go addresses, ready to to trial her li- The was not known Texas driver’s State number, had security 1989 and State cense her social number on Junе support the trial court’s presumption, sions ... which 1. For civil see Graham v. Pa of law Torre, challenged (Tex.App.— De 821 162 la S.W.2d and which not order ... zos denied). Corpus At one Christi writ least appeal.... appellant We have reviewed in this appellate court Texas has indicated that when hold was that the court record findings go unchallenged in a criminal fact justified in [its conclusion].” case, weight given is to be that fact some See, appellate review. 831 Gonzales Supreme referring Chapman to the Court (Tex.App. pet Antonio S.W.2d 347 — San Wingo, case Barker v. 2182, 92 'd). appellate ref court held that: "The rec (1972). L.Ed.2d findings ord reflects of facts and conclu ... had asserted diligence get the defendant not exercised due trial; (4) that the loss of two ready for trial. resulted in actual defense witness (5) the State dismissed On June balancing defendant. Barker the case. It is completely satisfied. test has been Brown, (6) Kelley, Alice and Vie Wis- Pat engaging in its own fact only by ner, assistant dis- three successive defen- can hold that the majority attorneys responsible for' trict rights were not violat- dant’s constitutional case, that, as of were of the ed. 20,1989, prose- the case was June in requires dismissal of an Due Process cutable. (1) delay: preindictment if a dictment (7) Kelley Pat left the D.A.’s office After prejudice; the defendant substantial caused attorneys he told the defendant’s (2) by an intentional device Alice his conversation with about advantage. Spence gain tactical State in his Brown and that she concurred (Tex.Crim.App.1990), State, 795 would not decision that the defendant — U.S. -, t. denied reindicted. cer S.Ct. (1991). The 113 L.Ed.2d On June defendant majority indicates that the defendant again exact same of- indicted for the However, in delay. prejudiced by the existed for fense—no valid reason prejudice for actual order establish delay. need delay, the defendant preindictment (9) prospective de- Karen Koonce was by the prejudice caused only show “some” Decem- She died on fense witness. Owens, 778 S.W.2d delay. State is She unavailable ber (Tex.App. [1st Dist.] —Houston delay of the the defense because ref’d)3. held that Its has been pet. caused the State. of the disappears because material witness (10) Zuniga prospective de- Korina was citing Bark is shown. Id. delay, prejudice disappeared has fense witness. She majority goes on (supra). The Wingo er v. to the defense and is unavailable prejudice to if there was note that even by the delay of the caused defendant, there was violation exercised The defendant has State. rights, because process defendant’s due find diligence attempting in due delay a tacti that the was nothing indicates her. advantage gain over intended to cal device (11) actual The defendant has suffered its majority has closed The the defendant. delay prejudice because was denied the State eyes to the obvious: caused the State. This created its own. so it continuance (12) discovered No new evidence was intended “intentional device clearly is a 20, 1989 and June advantage.” the State between gain tactical already not April 1991 that was (supra) held that in Lovasco The court agents or its known to the State the rea- inquiry must consider “due through could not have been known as the dеlay as well sons for the diligence. the exercise of due “investiga- It noted to the accused.” delay finding fundamentally court’s unlike Applying tory delay the trial ad- gain ‘to tactical law, solely actions violated I find that the State’s undertaken ... ” 431 U.S. at right to a accused.’ vantage amendment over the the defendant’s Sixth advantage, test, balancing 2051. Tactical Utilizing the 97 S.Ct. at speedy trial. inquiry. The (1) however, sole not to be the that: specifically found the court the “fundamental unreasonable; (2) is to be main concern delay by the State was 790, 97 S.Ct. justice.” Id. at conceptions of delay; existed for the no valid reason anxiety, and the loss delay was preindictment udice to the accused reviewed a 3. State v. Owens amendment, case at bar the Fifth The facts in the under amendment, the Sixth a fact witness. Owens, had been because the accused absent actual stronger in than those days prior jailed to the indictment. for 223 imprisonment of the defendant. Owens, prej- delay The was 7 months. case, however, chose to the State In this means that reasons other at 2049. This advantage” On June may bе consid- its continuance. grant than “tactical own examining the continu- State’s reason filed a motion for ered when 1989 the State case, delay. preindictment In this ance; On June the motion was denied. trial court made filed a second motion the State intentionally by at least one was caused essential, subpoe- continuance, alleging an Further, prosecutor. it that no new found va- had “nonrefundable naed State witness from June of 1989 evidence uncovered tickets, preferred witness cation Clearly, April until of 1991. refiled rather dismissed and have case investigatory pur- not for State was properly The Court ‘eat’ the tickets.” than poses, it con- instead was because then motion. The State denied second pursue If sciously chose not to the case. by dismissing continuance granted its own harm to the such a choice causes actual immediately case. instead defense, prosecution should accused’s case, at- refiling the the assistant district not be allowed to reindict. charge in case torney Appeals The Texas Court Criminal prosecutable. case opinion that the State, 815 decision Heitman intentional decision not re- He made an ap- (Tex.Crim.App.1991), indicated that file the No new evidence was discov- case. pellate courts free to reexamine the were lost. defense witnesses were ered. Two Constitution, depart from tradi- Texas convenience, the rein- Finally, State at its ruling when on issues of tional federalism dicted defendant. State constitutional law. majority’s prosecutors allows grounds raised Texas Constitutional indict, their con- dismiss and reindict at trial court level. The State conceded venience, harm to defen- spite findings the trial court’s addressed that to conclude that the dants. “Unless we are light I find Article I of the issue. imposes no constraints on the Constitution Constitution, should Texas district courts filing postpone the prosecutor’s power to be free to examine and all reasons convenience, charges to suit his own formal delay. the State’s one case since Heit- judgment.... I must affirm believe we appeals man the Texas Court of Criminal only if contrary position A ‘can be tenable depart application from the declined right to that the constitutional one assumes in speedy federal law trial claims. Howev- fair includes whatsoever er, appel- noted in the Court Deeb ” (Stevens, J., hearing.’ dis- prompt separate lant had offered distinct (su- senting) in v. Lovasco United States analysis of the Texas Deeb Constitution. 799-800, 97 431 S.Ct. ‍​​​‌‌‌​​‌​​​​​‌​‌‌​​​​‌​​‌‌​‌​​​‌‌​​​​​‌​‌​​‌‌​​‍pra), U.S. majority at 704. The Deeb indicated that citing Moody Daggett, v. permit the Due Process does Clause 50 L.Ed.2d 97 S.Ct. prosecutions to abort criminal sim- courts (Stevens, J., dissenting). ply they disagree prosecu- judgment tors as to when to seek an indict- support no evidence to There is v. citing ment. Deeb at United States findings of fact of discretion. abuse (supra). once an indict- Lovasco supported evi- the trial court are sought, ment has been further control over dence, are cor- the conclusions law granting or setting the case judgment I affirm the rect. would lie denying continuance should within trial court. sound discretion of the trial court. See Poe, (Tex.Crim. Collier v. dismissed, 805, 108

App.) appeal (1987); 98 L.Ed.2d Garcia

State, (Tex.Crim.App.1976). S.W.2d See, by Judge (Tex.Crim.App.1991), was authored White. Deeb in Deeb — U.S. -, dissenting opinion Judge denied t. wrote the White cer (1992). 120 L.Ed.2d 907 Deeb decid Heitman. day majority ed on same Heitman. The

Case Details

Case Name: State v. Kuri

Court Name: Court of Appeals of Texas

Date Published: Jan 14, 1993

Citation: 846 S.W.2d 459

Docket Number: C14-91-00432-CR

Court Abbreviation: Tex. App.