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Adkins v. State3/24/2003
peedy trial right but requests a dismissal instead of a trial, his claim will be attenuated. Id.
In this case, thirty-two months passed between appellant's arrest and his trial. Appellant did not assert his right to a speedy trial until June 8, 2001, a mere eighteen days before the case went to trial. When he did assert his right to a speedy trial, he did not request a trial, but requested that the indictment be dismissed with prejudice. Because appellant waited until just before trial to assert his rights and because he "moved to dismiss rather than asking for a speedy trial, . . . the third Barker factor . . . weigh against him." Schenekl, 996 S.W.2d at 312; see Barker, 407 U.S. at 531-32, 92 S. Ct. at 2192-93; Haney, 977 S.W.2d at 642.
Prejudice
The final factor to consider is whether the delay prejudiced the defendant. Prejudice should be determined in light of the interests the speedy trial right was designed to protect. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. The right was designed to prevent: (1) oppressive pretrial incarceration; (2) anxiety over the pending charges; and (3) impairment of an accused's ability to present a defense. Harris, 827 S.W.2d at 957; Schenekl, 996 S.W.2d at 313. Under this factor, it is the defendant's initial burden to make a showing of prejudice. Schenekl, 996 S.W.2d at 313.
Appellant has failed to make an initial showing of prejudice. First, appellant had been released on bond pending trial and, thus, did not suffer an extensive pretrial incarceration. See Schenekl, 996 S.W.2d at 313-14; Parkerson, 942 S.W.2d at 792. Second, appellant did not offer any evidence in support of his motion asserting his speedy trial right. As a result, there is nothing in the record to tell us what level of anxiety, if any, appellant suffered as a result of the thirty-two month delay. Finally, appellant has not shown how the delay impaired his defense. Appellant's counsel made only the bare assertion at the pretrial hearing that it was "pretty hard to get witnesses together . . . after all this time." The fact that it might have been difficult to procure witnesses, however, does not equate to those witnesses being unavailable. Even assuming that witnesses were unavailable, appellant did not inform the trial court of who those witnesses were, how their testimony would have been relevant, and what efforts he had made to get them to trial. See Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973); Meyer v. State, 27 S.W.3d 644, 650 (Tex. App.--Waco 2000, pet. ref'd). Thus, the final Barker factor weighs against appellant.
In conclusion, we believe the Barker factors, when applied to the facts in this case, weigh in favor of the State. Although the first and second factors weigh against the State, the third and fourth factors weigh more heavily against appellant. We have previously stated that " hen the failure to assert the right [to speedy trial] is made so late and never heard until trial, it weakens all the other factors because they are so dependent upon the assertion." Clarke v. State, 928 S.W.2d 709, 718 (Tex. App.--Fort Worth 1996, pet. ref'd) (op. on reh'g); see Haney, 977 S.W.2d at 643. For these reasons, we hold that the trial court did not err in denying appellant's motion to dismiss based on the violation of appellant's right to a speedy trial. Accordingly, appellant's fifth issue is overruled.
Legality of Appellant's Arrest
In his first issue, appellant complains that the trial court erred in denying his motion to suppress and overruling his subsequent objection at trial because the wooden stick and drugs in this case were seized incident to an illegal arrest.
Standard and Scope
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