State v. Tellez

976 S.W.2d 333, 1998 Tex. App. LEXIS 5250, 1998 WL 513945

• Court: Court of Appeals of Texas
• Decided: August 20, 1998
• Docket: No. 13-97-624-CR
• Status: Published

Opinions

OPINION

CHAVEZ, Justice.

This is an appeal by the State from the dismissal of its case against Elizabeth Tellez for the misdemeanor offense of theft in an amount less than $200.¹

On January 25, 1989, Tellez was charged with theft of less than $200. The docket sheet on record indicates that arraignment was set for February 28, 1989. The entry for the date February 28 is rubber-stamped text indicating that the defendant was arraigned and pleaded guilty; but there are three lines marked though this text, and the blanks to be filled in for fines imposed were left blank. The entry for March 1, 1989 suggests a pre-trial conference may have been slated for March 15, 1989, but there is no record of activity for that date on the docket sheet. For the date March 4, 1992, there is an indication of “Cash Bond Co-Defendant — Blanca Sanchez 5/20/92 @ 9:30 AM.” Nothing further occurred in this case until June 11,1997, when the Hidalgo County Court at Law No. One sua sponte signed an “Order for State to Show Cause,” ordering the State to appear at a hearing on July 9, 1997, to show cause why the case should not be dismissed for want of prosecution. Identical “show cause” orders were filed in over 200 other misdemeanor cases that had been filed generally between 1988 and 1992.

At the July 9, 1997 show cause hearing, the trial court proceeded to call each case one-by-one to determine its status. Numerous cases were dismissed with the consent of the State, others were retained on the court’s docket, while over sixty cases, including this one, were dismissed and have now been appealed to this Court. In none of the eases appealed did the defendant file a written motion or request to dismiss. In the present case, the official court reporter for County Court at Law No. One submitted an affidavit which states that she was unable to locate a record from the July 9, 1997 hearing despite a diligent effort. Therefore, we are unaware of the events that took place at the hearing in reference to this particular case. Nevertheless, the trial court entered a written “Order to Dismiss for Violation of Speedy Trial Rights.”

The State presents four issues contending the trial court erred (1) by dismissing a prosecution without the consent of the State, (2) by dismissing the case without evidence of a speedy trial violation, (3) by not requiring the presence of the defendant at the pretrial hearing, and (4) by issuing an order of dismissal which does not conform with the procedural facts of the case. .We reverse and remand.

By its second issue, the State argues that the trial court erred in granting dismissal of the case based upon a violation of speedy trial rights.

Criminal defendants are entitled to a speedy trial under both federal and state constitutions. See U.S. Const, amend. VI; Tex. Const, art. I, § 10. The following factors, as announced by the United States Supreme Court, must be weighed by a reviewing court to determine whether the defendant’s constitutional right to a speedy trial has been violated: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his speedy trial right, and (4) prejudice to the defendant from the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Moreover, although the constitutional speedy trial rights of Texas and the United States are independent, Texas courts look to the federal courts in determining state constitutional rights and use the Barker test to determine whether a defendant has been denied his state speedy trial right. Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App.1992); State v. Flores, 951 S.W.2d 134, 137 (Tex.App. — Corpus Christi 1997, no pet.).

The record in the present ease, however, reveals that the issue of defendant’s speedy trial right was never raised during the hearing or anytime before. Nor did the trial court receive evidence from either the defense or the prosecution on any of the Barker factors aside from taking notice of the record on the length of delay in each case. Accordingly, we conclude that without a meaningful hearing on lack of a “speedy trial” as a ground for dismissal, the trial court erred to the extent that it dismissed on this ground. See United States v. Rich, 589 F.2d 1025, 1033-34 (10th Cir.1978) (the trial court errs when, at a sua sponte hearing on the status of the case, it allows a speedy trial challenge to be raised summarily on the basis of length of delay alone and dismisses the case without prior notice to the State or an opportunity to present evidence on the Barker factors). The State’s second issue is sustained.

In light of our disposition on this issue, it is not necessary to address the State’s remaining issues. Tex.R.App. P. 47.1.

We REVERSE the trial court’s dismissal order and REMAND this case to the trial court for proceedings consistent with this opinion.

Concurring opinion by YANEZ, J.

1 . See TexCode Crim. Proc. Ann. art. 44.01(a)(1) (Vernon Supp.1998) (authorizing appeal by State from dismissal of an information).