 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Ortiz v. State11/30/2004
st. Id. at 279. The Texas law of procedural default applies only to the last category. Id. Many, but not all, constitutional rights fall within the second category. A defendant need make no request at trial for the implementation of such rights, as the judge has an independent duty to implement them absent an effective waiver by him. As a consequence, failure of the judge to implement these rights that fall within the second category may be urged on appeal whether or not it was first raised in the trial court. Id.
Here, we must determine whether a defendant's right to a speedy trial falls within the second or the third category of rights. The United States Supreme Court established four factors by which to evaluate an appellant's speedy trial claim: (1) length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530 (1972); Oldham v. State, 5 S.W.3d 840, 846 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (op. on remand). At least three of these factors cannot be developed for the record or properly evaluated on appeal without a hearing in the trial court. Oldham, 5 S.W.3d at 846. For example, unless a defendant brings the matter to the attention of the trial court, he or she cannot be said to have asserted his or her right to a speedy trial. Id. Likewise, without a hearing, the prosecution has no opportunity to establish the reasons for the delay, and neither party can adequately establish or refute the existence of prejudice. Id. While the right to a speedy trial is affirmatively guaranteed by both the state and federal constitutions, the United States Supreme Court held that the defendant bears some responsibility to assert the right. See Barker, 407 U.S. at 528. In fact, a defendant's failure to assert the right is an indication that he or she does not want a speedy trial. See id. at 534-36.
Thus, we conclude that the right to a speedy trial is a right to be implemented upon request, and that it can be waived by failing to make such a request. See Oldham, 5 S.W.3d at 846. Because appellant did not assert his right to a speedy trial in this case, he has failed to preserve this issue for our review. See id. We overrule appellant's seventh point of error.
Accordingly, we affirm the trial court's judgments as modified.
Page 1 2 3 4 5 Texas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|