the State of Texas v. Christopher Leon Jackson

Reversed and Remanded and Memorandum Opinion filed December 29, 2022.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-21-00024-CR

                      THE STATE OF TEXAS, Appellant

                                        V.
                CHRISTOPHER LEON JACKSON, Appellee

          On Appeal from the County Criminal Court at Law No. 8
                          Harris County, Texas
                      Trial Court Cause No. 2326945

                         MEMORANDUM OPINION

      The State of Texas appeals the trial court’s dismissal of charges against
appellee, Christopher Leon Jackson, on speedy trial grounds. In one issue the State
argues that the trial court erred in granting appellee’s motion to dismiss. We
reverse and remand for further proceedings.

                              I.     BACKGROUND

      On September 23, 2018, appellee was charged with driving while
intoxicated (DWI). Appellee posted bond the following day. The case was set
twice for jury trial, once in November 2019 and again in January 2020, the
November trial setting was continued by the trial court. During its pendency, the
case was set and reset as follows:

   Setting Date       Reset Date              Event and Requestor            Days

 09/23/2018                          Appellee arrested; information and
                                     complaint filed
 09/28/2018          11/05/2018      Unassigned reset

 11/05/2018          01/09/2019      Unassigned reset

 01/09/2019          02/27/2019      Appellee’s Request                       39

 02/27/2019          04/19/2019

 04/19/2019          05/23/2019

 05/23/2019          07/18/2019      State’s Request

 07/18/2019          09/04/2019      Appellee’s Request                       48

 09/04/2019                          Set Jury Trial for 11/04/2019

 11/04/2019          01/28/2020      Reset Jury Trial for 1/28/2020; by       85
                                     trial court
 01/23/2020                          Motion      to     continue––missing
                                     witness; State’s request
 1/24/2020                           Motion to Dismiss &              case
                                     dismissed; State’s request

In January 2020, the State filed a motion for continuance because one of its
witnesses was unavailable for the trial setting. The trial court verbally denied the
continuance. The State then moved to dismiss the case subject to re-filing. The
trial court granted the dismissal. The State re-filed the case on September 21,
2020, following a grand jury indictment. On November 11, 2020, appellee filed a
motion to dismiss for violation of his right to a speedy trial.      On December 3,
                                          2
2020, the trial court held hearings on appellee’s motion to dismiss over three days
in December 2020.

      At the hearings on appellee’s motion, appellee argued that he was prejudiced
by the State’s delay in re-filing the case during the COVID-19 pandemic because
of the “serious negative health effect of” COVID-19, its “disproportionately
affecting the African-American community” and that because appellee is African-
American appellee is not “going to have a fair cross section of the community as
even an option in a jury pool.”

      The State introduced the trial court’s reset forms into evidence, showing the
resets that took place from September 2018 to January 2020, as well as an affidavit
of the district attorney that had been working on the case up to its January 2020
dismissal. The State argued that most of the resets were for “the normal collection
of evidence, speaking about the trial, discussing possible resolution and then the
eventual setting of the . . . November . . . trial setting which then got reset to the
28th of January, 2020.” The State further argued that none of the delays were
caused by the State’s bad acts or negligence but instead show due diligence to
collect evidence. The State asserted that it filed a motion for continuance of the
January 2020 trial setting due to the unavailability of a witness which was
“verbally denied.” As a result of the verbal denial, the State requested dismissal.

      After the last hearing on appellee’s motion the trial court made oral findings
and conclusions. The trial court found:

   - that the State “provided no evidence to explain the delay between January
      and when this was filed two days before the statute of limitations was to
      expire;

   - “[N]o explanation about why it took so long and what was happening during
      that time and certainly is a very critical time because . . . the case would
                                          3
      have been tried within, probably within days or weeks of the January trial
      setting.”

   - “[T]hey insisted that because their witness was getting married, not even on
      the day of trial, but like within one or two weeks of the trial and was anxious
      about it that he couldn’t testify in a case which I find to be an outrageous
      excuse for a witness.”

   - The reason the case wasn’t tried in January . . . is flatly unacceptable.

   - “[T]here were some more kind of pedestrian normal course of business
      delays earlier in the trial, sure, but the real critical delay comes at the end
      when the State is coming back and delaying the trial.”

   - “[T]he Defense repeatedly urged the Court to take the case to trial, which the
      Court accepts as an assertion of the right to a speedy trial. . . . all we talked
      about was how quickly we can get it to trial.”

   - “I’ve looked at the checked boxes on the resets and they even largely
      comport with my recollection even though they are not the most accurate.”

   - “[T]he defendant has adequately asserted his right and I find that he suffered
      prejudice . . . the delay has caused him now to be in a world where we have
      extremely limited juries.”

The trial court granted appellee’s motion and dismissed the case.

                          II.   SPEEDY TRIAL GUARANTEE

      The State argues that the trial court erred in dismissing the case against
appellee for violation of his right to speedy trial.




                                            4
A.    General Legal Principles

      “The Sixth Amendment to the United States Constitution guarantees the
accused in a criminal prosecution the right to a speedy trial.” State v. Lopez, 

, 113 (Tex. Crim. App. 2021). The Texas Constitution provides the
same guarantee. Tex. Const. art. 1, § 10. A court should consider the four Barker
factors in addressing a speedy-trial claim: (1) the length of delay, (2) the State’s
reason for delay, (3) the defendant’s assertion of his right to a speedy trial, and (4)
prejudice to the defendant because of the length of the delay. See Barker v. Wingo,

 (1972); see also Lopez, 631 S.W.3d at 113; Balderas v. State,

 (Tex. Crim. App. 2016). Generally, courts deem delays
approaching one year as unreasonable enough to trigger further inquiry. Dragoo v.
State, 

 (Tex. Crim. App. 2003).

      “We apply a bifurcated standard of review: an abuse of discretion standard
for the factual components and a de novo standard for the legal components.”
Lopez, 631 S.W.3d at 113–14. Evaluation of the Barker factors involves both fact
determinations and legal conclusions, but the balancing test is a purely legal
question that we review de novo. Id. at 114; Balderas, 517 S.W.3d at 767–68. We
give almost total deference to the trial court’s historical fact findings that the
record supports, and we draw reasonable inferences from those facts necessary to
support the trial court’s findings. Balderas, 517 S.W.3d at 767–68.

B.    Analysis

      1. Length of Delay

      Presumptive prejudice marks the point at which courts deem the delay
unreasonable enough to trigger further inquiry. State v. Munoz, 

,
821–22 (Tex. Crim. App. 1999). There is no set time that triggers the analysis of
the other remaining Barker factors, but instead is dependent upon the particular
                                          5
circumstances of the case. See Lopez, 631 S.W.3d at 114. “Such circumstances
include the nature of the charged offense, and whether the defendant can make bail
or must await trial while confined in jail” as well as the complexity of the case. Id.
Generally, a delay of eight months to a year is presumptively prejudicial and
triggers a speedy trial analysis. Id.; see also Balderas, 

 (“In
general, courts deem delay approaching one year to be ‘unreasonable enough to
trigger the Barker enquiry.’” (quoting Dragoo, 

)).

      The State argues that the total delay in this case is a “sum of nearly thirteen
months” but does not concede that a full Barker analysis is required. However, the
State argues that if a full Barker analysis is required, then the length of the delay
should weigh “only slightly” against the State. Appellee argues that the length of
time of the delay is sufficient to trigger a full Barker analysis.

      From September 23, 2018—the day appellee was charged and arrested for
driving while intoxicated, to the day that the State dismissed the case on January
24, 2020, was a period of 488 days. Excluding the two requests from appellee to
reset hearings, the total number of days goes from 488 to 401 days, or
approximately thirteen months. See Celestine v. State, 

, 507 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (“[T]ime covered by agreed resets is to
be excluded from speedy trial consideration.”). Neither party has alleged that this
DWI case is complex. This delay is sufficient to trigger a full Barker analysis. See
Shaw v. State, 

 (Tex. Crim. App. 2003) (“In general, delay
approaching one year is sufficient to trigger a speedy trial inquiry.”); Dragoo, 

 (delay approaching one year sufficient to trigger full Barker
analysis).




                                            6
       Considering the total amount of time from the arrest on September 23, 2018
to appellee’s motion to dismiss on November 11, 2020,1 the total is 780 days.
Even subtracting the appellee’s requested resets (totaling 87 days), the total is 693
days or just under twenty-three months.

       We conclude that this factor weighs against the State, but not heavily. See
Voda, 545 S.W.3d at 741–42 (thirty-two-month delay in DWI case weighed
against the State, but not heavily).

       2. Reason for the Delay

       The State has the burden to justify the delay. Cantu, 253 S.W.3d at 280. “A
more neutral reason such as negligence or overcrowded courts should be weighted
less heavily but nevertheless should be considered since the ultimate responsibility
must rest with the government rather than with the defendant.” Barker, 

. A valid reason, such as a missing witness or good faith plea negotiations,
should serve to justify appropriate delay. See id.; State v. Munoz, 

 (Tex. Crim. App. 1999). When the State fails to establish a reason for the
delay, we may presume neither a deliberate attempt to prejudice the defense nor a
valid reason for the delay. Dragoo, 

; State v. Wei, 

 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).

       Here, the State contended that from September 2018 to January 2020 the
case was being worked-up normally to collect evidence, discuss trial and possible
resolution, and that there were some discovery considerations. This evidence was
not controverted by appellee and the trial court found that “there were some more
kind of pedestrian normal course of business delays earlier in the [case].” Valid


       1
           See Zamorano v. State, 

 (Tex. Crim. App. 2002) (en banc) (“The
length of the delay between an initial charge and trial (or the defendant’s demand for a speedy
trial) acts as a ‘triggering mechanism.’”).

                                              7
reasons for delays are not weighed against the State. See Balderas, 

; Shaw, 117 S.W.3d at 889–90; see also Hopper v. State, 

(Tex. App.—Houston [14th Dist.] 2016), aff’d, 

 (Tex. Crim. App.
2017).

       The State also presented evidence that one of its fact witnesses was unable to
attend the January 2020 trial setting. The State requested a continuance which was
denied, informally, by the trial court.2 The State then filed a dismissal of the case.
The trial court concluded that the stated reason for the witness’s inability to attend
the trial was “outrageous” and that the “reason the case wasn’t tried in January . . .
is flat unacceptable.” However, there is no evidence in the record of a deliberate
attempt by the State to prejudice appellee. The trial court rejected the State’s
explanation for the delay but there is no evidence of bad faith conduct or a
deliberate attempt by the State to prejudice appellee. Thus, this period weighs
against the State, but not heavily.

       The trial court further found that the State “provided no evidence to explain
the delay between January and when [the case was re-]filed two days before the
statute of limitations was to expire.” Without an explanation, this period also
weighs against the State, but not heavily.

       Appellee argues that the trial court “found” that the delay was bad faith on
the part of the State. However, there is no such finding in the record. The trial
court was skeptical regarding the proffered excuse of the witness, considering the
excuse to be “outrageous.” However, there is no finding or conclusion that the
State acted in bad faith or that the State was deliberately trying to prejudice
appellee. A bad excuse is not the same as acting in bad faith or a deliberate

       2
        At the hearing on appellee’s motion to dismiss the trial court confirmed that at an in-
chambers conference with the parties he indicated he would not grant the continuance.

                                              8
attempt to prejudice appellee. See Ex pate Napper, 

, 231–232
(Tex. Crim. App. 2010) (examining meaning of “bad faith” in context of
destruction of evidence potentially useful to the defense, stating “bad faith entails
some improper motive, such as personal animus against the defendant or a desire
to prevent the defendant from obtaining evidence that might be useful.”).

      A period of 401 days attributable to the State during which the case was
initially pending, the trial court concluded was “normal course of business” for
discovery purposes and is not weighed against the State. A period of 292 days
between the dismissal requested by the State and appellee filing his motion to
dismiss weighs against the State, but not heavily.

      3. Assertion of the Right

      When a defendant does not ask for a speedy trial, and instead only asks for
dismissal, it is incumbent upon the defendant to show some attempt to get the case
into court so that trial could occur in a speedy manner. Cantu, 253 S.W.3d at 284.
An accused who has been arrested but not formally charged has a choice:

      [H]e can wait until he is charged, then file a motion for a speedy trial,
      and, if this request is not honored, he can then file a motion to dismiss
      because he diligently sought what he was entitled to—a speedy trial.
      Or, he can wait until he is charged and simply file a motion to dismiss
      if he can show that he diligently tried to move the case into court
      before formal charges were filed.
      Id. at 284–85. In Cantu, the defendant never sought or requested a speedy
trial, only an outright dismissal and tried to prove that he acted on the desire for a
speedy resolution before he was charged. Id. at 285.

      The State argues that the trial court impermissibly made a finding that
appellee had “repeatedly” asserted his right to speedy trial based on the trial court’s
recollection of events during the case and that there is no record evidence to


                                          9
support this finding. The State asserts that the record and evidence show that
appellee acquiesced and even requested some of the delay and this is inconsistent
with the trial court’s finding.

      The trial court found that “the Defense repeatedly urged the Court to take the
case to trial, which the Court accepts as an assertion of the right to a speedy trial.”
However, there is no indication in the record of appellee’s assertions. The record
shows that appellee requested two resets. Appellee did not even argue in his
motion or to the trial court at the hearing that he asserted his right to speedy trial
and sought trial of this case, and provided no indication of how he did so. There
was no objection filed by appellee to the State’s motion for continuance. See
Barker, 407 U.S. 534–35 (noting defendant’s lack of action in response to
prosecution’s motions for continuance). Appellee did not object to the State’s
motion to dismiss arguing that he was ready for trial and urging the trial to go
forward. Appellee did not file a speedy trial motion requesting that trial be set.
Without record support, we need not give deference to this fact finding. See State
v. Davis, 

, 704–07 (Tex. App.—Austin 2017, no pet.)
(disregarding trial court’s finding that defendant had asserted his right where
evidence presented and record only supported conclusion that defendant’s assertion
was “ambiguous at best”); see also Balderas, 

. Here, like in
Cantu, there was no showing or evidence that appellee ever sought or requested a
speedy trial. Once the case was re-filed, appellee sought an outright dismissal
without attempting to show that he acted on the desire for a speedy resolution. See
Barker, 

 (emphasizing that a defendant’s failure to assert his right
to a speedy trial “will make it more difficult for a defendant to prove that he was
denied a speedy trial”); Cantu, 253 S.W.3d at 283 (“Filing for a dismissal instead
of a speedy trial will generally weaken a speedy-trial claim because it shows a
desire to have no trial instead of a speedy one.”); Munoz, 

                                          10
(concluding inaction dispositive of the “assertion of the right” Barker factor when
nothing moved for or filed prior to defendant’s motion to dismiss the indictment
expressly reflected an assertion of defendant’s speedy trial right). Even taking as
true appellant’s assertion that he was ready for trial in January 2020, this is not the
same as asserting or demanding trial. See Henson v. State, 

(Tex. Crim. App. 2013) (announcing ready for trial was not a demand for trial,
instead “it merely asserts that he could go to trial at that moment should the State
push for it”).

      We conclude this factor weighs against appellee.

      4. Prejudice

      “Prejudice . . . should be assessed in the light of the interest of defendants
which the speedy trial right was designed to protect.” Barker, 

.
“This Court has identified three such interests: (i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.” Id.; see also Cantu, 253 S.W.2d
at 285. Of these, the last is the most serious because the defendant’s inability to
prepare his case skews the fairness of the entire system. Id. “[E]xcessive delay
presumptively compromises the reliability of a trial in ways that neither party can
prove or, for that matter, identify.” Doggett v. United States, 

(1992).

      The State argues that the trial court erred in failing to assess prejudice to
appellee caused by the delay and instead engaged in speculation of harm that
“functionally hung the millstone of COVID around the State’s neck.” The State
further argues that there is no “nexus” between the delay and the prejudice caused.

      In this case appellee argued that “instead of having a normal jury pool
available to hear the case, we are in this odd purgatory of which there is really not
                                          11
a modern precedence for.” Appellee then went on to argue that the COVID-19
pandemic prejudiced appellee because of the “serious negative health effect of”
COVID-19, its “disproportionately affecting the African-American community”
and that because appellee is African-American appellee is not “going to have a fair
cross section of the community as even an option in a jury pool.” Appellee argued
that because of the pandemic that he was also unable to effectively communicate
with his attorney due to mask and distancing requirements and that such
precautionary measures “severely and significantly hampered” counsel’s ability to
effectively represent appellee. The trial court concluded that appellee “suffered
prejudice . . . the delay has caused him now to be in a world where we have
extremely limited juries.”

      We agree with the State regarding the types of prejudices that the right to
speedy trial is designed to protect against and that the delay here did not cause the
prejudice that appellee asserts.    The alleged prejudice of defending criminal
prosecution during a global pandemic is felt equally by all defendants as opposed
to only those alleging a speedy trial violation and is, thus, not caused by the delay
itself. Put another way, had appellee allegedly committed a crime in September
2020 and been charged at that time, he would still suffer all of the same alleged
prejudice yet none of the delay, demonstrating that the asserted prejudice here was
not caused by the delay.

      The types of prejudice that the right to speedy trial was designed to protect
are foreseeable consequences to delay—missing witnesses, fading memories,
destruction of evidence, increased anxiety and concern over pending prosecution,
public scorn, loss of employment or employment opportunities, disruption of
family life, inability to engage in political speech, chilled speech, idleness,
potential hinderance on ability to collect evidence or contact witnesses, and


                                         12
oppressive pretrial incarceration. See Barker, 

 (listing prejudices a
defendant might experience due to delay).

       Prejudice due to delay is obvious when a witness dies or disappears during
the delay, or if a witness is unable to recall the events at issue. Barker, 

. “Loss of memory, however, is not always reflected in the record because
what has been forgotten can rarely be shown.” 

 Appellee makes no assertion
that any witness has died, disappeared, or has since become unable to accurately
recall the events at issue. Appellee has made no assertion of oppressive pre-trial
incarceration or any increased anxiety or concern that is affecting his daily life.
Appellee has not asserted any of the types of potential prejudices listed above that
may be caused by a delay in trying the case.

       Instead, appellee speculates, without presenting any evidence, that the
COVID-19 pandemic will make any trial inherently unfair. We decline to engage
in such speculation. See Voda v. State, 

 (Tex. App.—Houston
[14th Dist.] 2018, no pet.) (declining to engage in speculation regarding alleged
prejudice). While we do not discount the effect the COVID-19 pandemic has had
on the judicial process, there are other constitutional protections in place to ensure
that any proceedings conducted during this pandemic are fair to the accused.3
Further, appellee is not relieved of his burden to demonstrate with evidence, as
opposed to mere allegations, that some prejudice actually exists.


       3
          For instance, should appellee be denied a jury drawn from a fair cross section of the
community he could object and raise his constitutional right to such a jury at that time. See
Aldrich v. State, 

 (Tex. Crim. App. 1996) (en banc) (“A defendant may
establish violation of the fair-cross-section requirement by demonstrating that: . . . the group was
not fairly represented on the jury panel from which the petit jury was chosen . . . .” (emphasis
added)); Pondexter v. State, 

, 581 (Tex. Crim. App. 1996) (“There was no
evidence introduced by appellant that showed that the difference between the percentage of
African-Americans in the county and the percentage on the jury panel was in fact not fair and
reasonable.”).

                                                13
      Appellee asserts that his case would have been tried in January 2020, prior
to the COVID-19 pandemic, absent the State’s bad faith dismissal. The trial court
agreed that the case would have been tried in January, or within a few days or
weeks of the January trial setting had the State not dismissed the case. However,
as mentioned above, there is no evidence and no finding that the State acted in bad
faith in dismissing the case in January. Appellee agreed at the hearing that he did
not think that the State had done anything improper.           The trial court, in its
discretion, granted the dismissal in January instead of denying it. See Graham v.
State, 

 (Tex. Crim. App. 1999) (“The county attorney or
district attorney . . . has the authority to dismiss a prosecution, but only with the
approval of the court.”); Hughes v. State, 

 (Tex. App.—Waco 2000,
no pet.) (“It is well settled that the dismissal of a cause does not prevent the grand
jury from returning a subsequent indictment charging the same transaction.”).

      Lastly, appellee argues that the State did not argue to the trial court that the
prejudice he alleged was not the type of prejudice the right to a speedy trial was
designed to diminish or that his prejudice was caused by the delay and has
therefore waived this argument. We disagree that the argument is waived. At the
hearing the State argued that:

      [F]or the prejudice that the Defense has listed in his motion, all of it is
      what the pandemic, how the pandemic is going to prejudice the
      defendant currently for trial. None of the argument made by the
      defendant in his motion and right now has shown how the prejudice,
      how the delay has prejudiced the defendant.
      . . . . It is not my position to diminish the pandemic . . . but as the case
      law has stated, there are specific rights that the speedy trial sets to
      protect . . .
      ...
      . . . . I don’t believe the Defense did his argument or the motion has
      brought up prejudice that courts have acknowledged in weighing all

                                          14
      the factors together.
      Appellee’s assertion of prejudice at the trial court was not the type of
prejudice that the right to speedy trial was designed to prevent. Appellee presented
no evidence of any prejudice, and instead presented only arguments that he
believed he would not have a fair jury or a fair trial. The delay in this case was
also not so lengthy so as to be presumptively prejudicial, and appellee does not
argue that it is. See Voda, 

 (DWI pending for thirty-two months
not “presumptively prejudicial”). The record does not show that appellant’s ability
to defend himself was prejudiced by the delay. See 

 (no prejudice shown when
defendant only alleged that a witness could not be located).

      This factor weighs heavily against appellee.

      5. Balancing

      We must balance the Barker factors “with common sense and sensitivity to
ensure that charges are dismissed only when the evidence shows that a defendant’s
actual and asserted interest in a speedy trial has been infringed.” Balderas, 

.

      Here, while there were delays, there is no evidence of any bad faith on the
part of the State. The length of delay and reason for the delay factors do not weigh
heavily against the State. Appellee did not argue or present evidence that he
asserted his right to a speedy trial or that he tried to get the case to trial. Instead,
appellee’s first motion was to dismiss the case.         This factor weighs against
appellee. Finally, appellee did not show any prejudice caused by the delay and the
delay itself is not presumptively prejudicial. This factor weighs heavily against
appellee.

      This is not a case where the delay stretched “well beyond the bare minimum
needed to trigger judicial examination of the claim,” and therefore weighed heavily
                                          15
against the State. See Voda, 545 S.W.3d at 741–42 (thirty-two-month delay in
DWI case weighed against the State, but not heavily). The length of delay was not
one that was so excessive that it presumptively compromised the reliability of the
trial. See Shaw, 

. Further, the record did not show that appellee
clearly asserted his right or made some showing of prejudice. See Barker, 

. We conclude that the Barker factors balanced together weigh against
a determination that appellee was denied his right to a speedy trial. See Balderas,

; Davis, 

. We sustain the State’s issue.

                                 III.   CONCLUSION

      We reverse the trial court’s order of dismissal and remand the case to the
trial court for further proceedings.


                                        /s/    Ken Wise
                                               Justice

Panel consists of Justices Wise, Spain, and Hassan. (Spain, J., and Hassan, J.,
concurring without opinion).
Do Not Publish — TEX. R. APP. P. 47.2(b).




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