Marlo Detric HOLLIE, Appellant v. The STATE of Texas

NO. PD-0750-18

Court of Criminal Appeals of Texas.

Filed: January 30, 2019

Cory L. Carlyle, Texas Bar No. 24050381, 1825 Market Center Blvd., Ste. 350, Dallas, Texas 75207, for Appellant.

Stacey Soule, State's Attorney, Austin, for the State.

Petition for discretionary review refused.

***CONCURRING OPINION***

Hervey, J., filed a concurring opinion in which Walker and Slaughter, JJ., joined.

I write separately to address the court of appeals's application of the second speedy-trial factor set out in *Barker v. Wingo* , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the reason for the delay, and to explain potential discovery problems that the State might encounter when it fails to disclose DNA testing information in a timely manner.

**SPEEDY TRIAL**

In analyzing the cause-for-delay factor, the court of appeals determined the factor to be neutral because the delay was due to mere negligence of the Rusk County Sheriff's Office and because Appellant agreed to reset his case.1

*663*Hollie v. State* , No. 06-17-00177-CR, 2018 WL 2976138, at *2 (Tex. App.-Texarkana June 14, 2018). I have no quarrel with the court of appeals's reliance on the fact that Appellant agreed to reset his case, but I cannot agree with its conclusion that the delay on the part of the State was due to simple negligence given the record in this case.

Appellant was arrested in November 2015, and his DNA sample was taken on February 26, 2016. He was indicted just over a week later. On November 22, 2016, a year after Appellant was arrested and about nine months after the DNA sample was taken, the State announced it was "not ready" for trial because the Hunt County Sheriff's Office had still not submitted the DNA sample for testing. According to a prosecutor, "even though [the district attorney's office] ... repeatedly requested that [Appellant's] sample be sent for testing, the [Hunt County Sheriff's Office] claimed 'they got busy' and had not completed the task." *Id.* at *2. The DNA sample was finally submitted for testing on December 5, 2016, which was 283 days after it was taken.

Despite the "round the clock" duties of law enforcement, surely the Hunt County Sheriff's Office could have found time to submit a single DNA sample for testing sooner than 283 days after it was taken. Unfortunately, the record was not developed on this point (although it could have been).2 Without additional information from the prosecution or the police to justify such an extraordinary delay in submitting a DNA sample for testing, I cannot agree with the court of appeals's presumption that the delay was attributable to simple negligence.3

**ADMISSIBILITY**

I also note that it is in the State's best interest to submit DNA samples for testing and to comply with discovery requests for the testing as promptly as possible to avoid exclusion of the evidence by the trial court. Some courts have done just that. *State v. Tarin* , No. 04-17-00198-CR, 2018 WL 3861382 (Tex. App.-San Antonio Aug. 15, 2018, pet. filed) (mem. op., not designated for publication) (affirming the trial court's suppression of DNA test results); *see**State v. Padilla* , No. 13-11-00682-CR, 2011 WL 5515555 (Tex. App.-Corpus Christi Nov. 4, 2011, no pet.) (mem. op., not designated for publication) (affirming the suppression of letters allegedly written by the defendant because of the State's tardy disclosure of the letters for inspection by the defense); *see also**State v. Sanavongxay* , 407 S.W.3d 252, 253 (Tex. Crim. App. 2012) (noting that the trial court suppressed DNA test results due to the State's tardy disclosure of the results, but not addressing the merits for lack of jurisdiction). In *Sanavongxay* , Appellee was charged with committing an aggravated robbery on December 8, 2008. According to documentation from the prosecutor,

1

In *Barker* , the United States Supreme Court said that,

> A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as *negligence* or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.

*Barker* , 407 U.S. at 531, 92 S.Ct. 2182 (emphasis added) (footnote removed).

2

In *State v. Sanavongxay* , 407 S.W.3d 252, 254 n.4 (Tex. Crim. App. 2012), which I discuss later, the prosecutor provided an affidavit in which she gave considerable detail justifying its tardy disclosure of the DNA test results.

3

For an appellate court to accurately determine the weight of the length-of-delay factor, the parties should provide a record from which the court can discern, not only whether there was a delay, but also whether the delay was justified. Here, we know that there was an extended delay, but we do not really know why because the State's explanation was merely perfunctory.

> *664[B]efore the case was filed, [she] asked the detective to get a buccal swab from appellee, but he did not do it. [She] again asked the detective to get a buccal swab when the preliminary CODIS hit was confirmed on January 29, 2009. That CODIS hit was not posted to the [Electronic Case Filing System] until July 29.

> The next follow-up by the prosecutor was a telephone call eight and a half months after the second request, on September 15, 2009. There followed another call on October 28, an e-mail on November 10, and calls on November 17 and 20 and December 4. The prosecutor called the detective again on December 8, and apparently still getting no response, called his sergeant the same day. After that call, the detective obtained a buccal swab from appellee. The CODIS confirmation was posted to the ECFS on January 19, 2010.

*Id.* at 254 n.4.

The defense subsequently filed a motion to suppress the DNA testing evidence because of its tardy disclosure. *Id.* at 254. During an *in camera* hearing, the trial judge agreed that the DNA testing evidence should be excluded at trial because of the State's discovery violations.4*Id.* at 256. The delay in *Tarin* was considerably longer. *Tarin* , 2018 WL 3861382, at *3 (18-month delay). These cases should serve as cautionary tales.

**CONCLUSION**

Although I disagree with the court of appeals's analysis with respect to the second *Barker* factor, I do not think that the lower court reached the wrong result. Consequently, and with these comments, I concur in the judgment of the Court to refuse Appellant's petition for discretionary review.

4

Neither the court of appeals nor this Court addressed the merits of the exclusion of the evidence because the court of appeals lacked jurisdiction to consider the appeal, but I cite the case for demonstrative purposes.