### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00409-CR

The State of Texas, Appellant

v.

John Thomas Shewmaker, Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY

NO. 03-0178-1, HONORABLE SUZANNE BROOKS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

The State appeals an order granting appellee John Thomas Shewmaker’s motion to

dismiss for failing to provide a speedy trial. S ee Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West

Supp. 2004). We will affirm the order.

Our summary of the relevant facts is primar i ly based on the trial court’s written

findings, which are not disputed. Shewmaker, a resident of Dallas County, was ticketed for speeding

in Williamson County on February 11, 1997. He timely appeared in the justice of the peace court,

entered his plea of not guilty, and requested a jury trial. Shewmaker was subsequently notified in

writing that a docket call was scheduled for May 29, 1997. Due to inclement weather, the court

rescheduled the docket call for June 19, 1997. Because he was traveling on business, Shewmaker

did not receive notice of the new setting until the morning of June 19. That day, he called the clerk2

of the justice of the peace to explain his absence. In its findings, the county court at law notes that

“Shewmaker contends he told the court staff he w ould not be able to attend the trial setting and

requested either another setting or a dismissal.” On July 11, 1997, the justice of the peace issued a

warrant for Shewmaker’s arrest based on his failure to appear on June 19. Shewmaker was not

notified of the warrant, and there is no evidence that the State made any effort to execute the warrant.

Shewmaker’s address has never changed during the pendency of this cause, and there is no evidence

that he sought to evade detection by the State.

There was no further activity in this cause until October 29, 2001, when Shewmaker

was arrested on the failure to appear warrant in Grimes County after a traffic stop. The justice of the

peace court subsequently set the cause for a docket call on February 28, 2002. The docket call was

reset twice, at least once at Shewmaker’s request, and the c ause was ultimately set for trial on

December 5, 2002. On that date, a jury found Shewmaker guilty of speeding and assessed a $200

fine. Shewmaker asserts in his brief that, before trial, he orally requested the justice of the peace

court to dismiss the cause on speedy trial grounds. As the county court at law found, however, there

is no record of this request.

Shewmaker perfected his appeal de novo to the county court at law. On March 25,

2003, he filed in that court a written motion to dismiss for want of a speedy trial. A hearing on the

motion was held on April 15. Shewmaker asserted at the hearing that he had been unaware of the

warrant issued for his arrest by the justice of the peace court. Because that court did not contact him

after June 19, 1997, he assumed the cause had been dismissed. He claimed to have been harmed by

his arrest on the warrant and by the monetary expenses incurred during repeated trips from his home3

to Williamson County during the course of this proceeding. At the conclusion of the hearing, the

county court at law overruled the motion to dismiss.

The court immediately proceeded to try and convict Shewmaker on the speeding

charge. The court assessed a $75 fine. Shewmaker filed a motion for new trial asserting several

grounds, including the denial of a speedy trial. See State v. Gonzalez

, 855 S.W.2d 692, 694 (Tex.

Crim. App. 1993) (trial court may grant new trial in interest of justice for reason not enumerated in

appellat e rules); S tate v. Evans

, 843 S.W.2d 576, 578-79 (Tex. Crim. App. 1992) (same). The

motion was heard by the court on June 2, 2003. At the hearing, the State announced that it favored

granting the motion, albeit on an alternative ground. On June 18, 2003, the court signed orders

granting both the motion for new trial and the motion to dismiss. Both orders rested on the court’s

conclusion that Shewmaker’s right to a speedy trial was violated. The State appeals the dismissal

order.

The State first claims that the court procedurally erred because Shewmaker’s motion

for new trial did not seek a reconsideration of the speedy trial issue, the court was not authorized to

dismiss the prosecution on its own motion, a nd there was insufficient notice that the speedy trial

is sue would be considered. Contrary to the State’s argument, Shewmaker’s motion for new trial

expressly raised the speedy trial issue; the court did not act on its own motion. The State did not

complain below of insufficient notice. The State’s procedural arguments are without merit. We turn

to the merits of Shewmaker’s speedy trial claim.

The right to a speedy trial is constitutionally guaranteed. U. S. Const. amend. VI;

Tex. Const. art. I, § 10; see Barker v. Wingo

, 407 U.S. 514 (1972); Hull v. State , 699 S.W.2d 220,4

221 (Tex. Crim. App. 1986). In determining whether a defendant has been denied this right, a court

must balance four factors: (1) length of the delay; (2) reason for the delay; (3) assertion of the right;

and (4) prejudice to the accused. B arker

, 407 U.S. at 530; Johnson v. State

, 954 S.W.2d at 770, 771

(Tex. Crim. App. 1997). Although we are bound by the trial court’s findings of fact absent an abuse

of discretion, we review de novo the trial court’s application of the law to the facts. Z amorano v.

State , 84 S.W.3d 643, 648 (Tex. Crim. App. 2002); Johnson , 954 S.W.2d at 771.

Length of delay. Shewmaker was tried in the justice of the peace court almost six

years after being charged with speeding. The trial de novo was held four months later. This delay

is far longer than the minimum needed to trigger a speedy trial inquiry, and it weighs heavily against

the State. Zamorano , 84 S.W.3d at 649.

Reason for delay. Shewmaker’s case was originally docketed in the justice of the

peace court for May 29, 1997, only three months after he was ticketed. The record shows that the

court rescheduled the matter to June 19 due to bad weather. This was a justifiable reason that does

not weigh against the State. The State made no effort, however, to justify the four-and-a-half-year

delay from June 19, 1997, to February 28, 2002, when the case was next placed on the docket of the

justice of the peace. We must presume that there was no valid reason for this delay. S ee Turner v.

State

, 545 S.W.2d 133, 137 (Tex. Crim. App. 1976) (State bears burden of justifying delay). The

subsequent resettings leading to the trial date of Decem ber 5, 2002, were at least partly at

Shewmaker’s request. In short, most of the delay in this cause was unjustified. This also weighs

against the State.5 Assertion of r ight. The responsibility to assert the speedy trial right lies with the

accused. B arker

, 407 U.S. at 531. Shewmaker claims to have orally requested a speedy trial during

his telephone call to the justice of the peace court on June 19, 1997, but there is no record of this.

After June 19, 1977, Shewmaker made no effort to contact the justice of the peace court about this

cause until he was arrested in October 2001 for failing to appear. Shewmaker first asserted his right

to a speedy trial in writing on March 25, 2003, when he filed his motion to dismiss in the county

court at law. Shewmaker’s quiet acquiescence in the justice of the peace court’s failure to reschedule

the cause between June 1977 and October 2001 weighs against him.

Prejudice. The speedy trial right serves to prevent oppressive pretrial incarceration,

minimize anxiety and concern resulting from the pending charges, and limit the possible impairment

of the defense. I

d. at 532. Shewmaker was never incarcerated for speeding. He was briefly jailed

after being arrested for failing to appear, but this is not attributable to the delay in trying the speeding

charge. Shewmaker claims to have been “frustrated” by the delay, but there is no evidence that the

untried speeding ticket gave rise to a significant level of anxiety or concern on his part. Shewmaker

does not claim tha t his defense was impaired beyond the fading of his and the ticketing officer’s

memories. The record reflects, however, that the traffic stop was videotaped, and the tape was

admitted in evidence. Shewmaker, who is an inactive attorney, effectively used the videotape to

cross-ex amine the officer. Shewmaker also asserts prejudice in the form of the time and expense

expended in his repeated trips between his home and Williamson County during the course of these

proceedings. None of these trips was attributable to the unjustified delay in his trial, however. In6

summary, Shewmaker failed to demonstrate prejudice arising from the delay of his speeding trial.

This weighs against a finding of a constitutional violation.

Balancing. N o single factor is dispositive in evaluating a speedy trial claim. I d. at

533. In this cause, two of the B arker factors weigh against the State, while the other two weigh

against Shewmaker. Although the balance is a close one, we conclude on this record that the

inordinate and unjustified delay of Shewmaker’s trial outweighs his untimely assertion of the speedy

trial right and his failure to show significant prejudice.

The county court at law’s dismissal order is affirmed.

__________________________________________

Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: March 25, 2004

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