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State v. Baker3/27/1996
. In contrast to Baker's testimony, the State offered no evidence at the hearing other than cross-examining Baker.
DISCUSSION
The Sixth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, guarantees the right to a speedy trial. U. S. Const. amend. VI, XIV; Smith v. Hooey, 393 U.S. 374, 374-75 (1969). Article I, section 10 of the Texas Constitution also guarantees the right to a speedy trial. Tex. Const. art. I, Section(s) 10. Although the state constitutional right is independent of the federal guarantee, both require the same balancing test to determine whether a defendant has been denied his right to a speedy trial. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App.), cert. denied, 506 U.S. 942 (1992). The United States Supreme Court set forth that four-factor balancing test in Barker v. Wingo, 407 U.S. 514, 530-33 (1972). The factors a court must balance include, but are not limited to: 1) the length of the delay; 2) the reason for the delay; 3) the defendant's assertion of the right to a speedy trial; and 4) the prejudice to the defendant resulting from the delay. Id.; Harris, 827 S.W.2d at 956. Our review focuses on whether the trial court abused its discretion in applying the Barker test and dismissing the case. See State v. Perkins, 911 S.W.2d 548, 551 (Tex. App.--Fort Worth 1995, no pet.). We accordingly examine each of the Barker factors in turn.
In examining the first factor, length of delay, we measure the delay from the time the defendant was charged or arrested. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994), cert. denied, 115 S. Ct. 1257 (1995). The length of delay must be presumptively prejudicial to trigger analysis of the other Barker factors. Barker 407 U.S. at 530. Although no specific time period is considered presumptively prejudicial, the delay tolerated for an "ordinary street crime" is considerably less than that for a more serious, complex crime. Id. The court of criminal appeals has noted that courts generally hold a delay of eight months or longer will trigger a speedy trial analysis. Harris, 827 S.W.2d at 956 (citing 2 LaFave & Israel, Criminal Procedure, 18.2(b) (1984)). In this case, Baker was arrested on June 15, 1991. He first discovered there was a pending warrant against him about three and a half years later in December 1994. The trial court dismissed the charges against Baker on June 1, 1995, almost four years after Baker's arrest. We conclude this delay was presumptively prejudicial, triggering review of the remaining Barker factors.
The State bears the burden of excusing the delay under the second factor of the speedy trial analysis. Turner v. State, 545 S.W.2d 133, 137-38 (Tex. Crim. App. 1976). Based on its cross-examination, the State suggests Baker caused the delay by intentionally giving police an incorrect address and that he knew he was arrested in Collin County. We do not judge the credibility of testimony; it is the trial court's prerogative to do so. Moreover, in its brief, the State acknowledges it sent Baker's notice to appear to an incorrect address. The State could easily have ascertained a correct address for Baker from driver's license or voter registration records. There is no evidence the State called the phone number listed on Baker's personal bond or otherwise tried to verify an address. There is also no evidence that Baker had any indication charges were pending against him in Collin County before December 1994. The State further acknowledges it failed to have the warrant for Baker's arrest entered in the sheriff's computer system, which would have facilitated an earlier execution of the warrant. The State does not explain how the error occurre
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