Adkins v. State3/24/2003
case proceeded to trial on June 26, 2001, about thirty-two months later. The State correctly concedes that this period is sufficient to trigger our analysis of the remaining Barker factors. See Schenekl, 996 S.W.2d at 312.
Our analysis of the length of delay does not end with the conclusion that it is presumptively prejudicial for purposes of triggering review of the other Barker factors. We must also consider whether the delay as a whole is excessive based on the circumstances of the case. See Zamorano v. State, No. 1442-00, slip op. at 6, 2002 WL 31018611, at *2-3 (Tex. Crim. App. September 11, 2002). The United States Supreme Court has stated that "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Barker, 407 U.S. at 531, 92 S. Ct. at 2192. This case is a "plain-vanilla," single-defendant possession and possession with intent to deliver case. We hold that on the facts of this case, the almost thirty-two month delay weighs against the State in our analysis of the Barker factors.
Reason for the Delay
Once a court determines that the length of the delay is sufficient to trigger a speedy trial analysis, it is the State's burden to show a reason to excuse the delay. Phillips v. State, 650 S.W.2d 396, 400 (Tex. Crim. App. 1983); Haney v. State, 977 S.W.2d 638, 642 (Tex. App.--Fort Worth 1998, pet. ref'd), abrogated in part on other grounds, Howland v. State, 990 S.W.2d 274 (Tex. Crim. App.), cert. denied, 528 U.S. 887 (1999). In this case, appellant was originally indicted for possession of a controlled substance on February 11, 1999. Appellant was subsequently re-indicted five times. For each pending indictment, the State announced that it was ready for trial. The record reveals that the State never requested a continuance. The only continuance that was ever requested in any of the pending cases was filed by appellant while the first indictment was pending, on May 21, 1999. Despite numerous settings, the case did not go to trial until June 26, 2001. The trial court, having been recently assigned to this case, indicated at the pretrial hearing that he did not know why this case did not go to trial despite the numerous settings.
The State asserts that the delay was a result of an overcrowded trial docket and, thus, there was a neutral reason for the delay. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Schenekl, 996 S.W.2d at 312; Parkerson v. State, 942 S.W.2d 789, 791 (Tex. App.--Fort Worth 1997, no pet.). The State never moved for a continuance and filed a notice of ready after each re-indictment; the docket sheets do not indicate why this case did not go to trial on the first eight setting dates. Under these facts, the State asserts that we should assume that the case simply was never reached. The fact that the case was not reached does not necessarily reflect, however, that the trial docket was crowded. The record does not show which other cases were reached in front of this case or how cases are prioritized in this particular trial court. In light of these omissions in the record, we cannot conclude that the State has met its burden of showing a reason for the delay. Thus, the second Barker factor in this case also weighs against the State.
Assertion of the Right to Speedy Trial
The third factor to consider is whether the defendant asserted his right to a speedy trial. This factor is given "strong evidentiary weight." See Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Haney, 977 S.W.2d at 642. Failure to assert the right will make it difficult for a defendant to prove he was denied a speedy trial. Schenekl, 996 S.W.2d at 313. Further, if a defendant asserts his s
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