Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hopper v. State

Court of Criminal Appeals of Texas

June 7, 2017

STEPHEN HENRY HOPPER, Appellant
v.
THE STATE OF TEXAS

         ON APPELLANT'S AND STATE'S PETITIONS FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

          Keller, P.J., delivered the opinion of the Court in which Hervey, Alcala, Richardson, Yeary, Keel, and Walker, JJ., joined. Newell, J., concurred. Keasler, J., not participating.

          OPINION

          Keller, P.J.

         In this case, we consider how a court should weigh a defendant's failure to exercise his right to a speedy trial under the Interstate Agreement on Detainers when analyzing a claim that he was denied his Sixth Amendment right to a speedy trial. Appellant was indicted in 1993 for an offense that he committed in Texas, but his trial did not take place until 2015. During most of that period of time, he was incarcerated in Nebraska for crimes he had committed there. Although he was informed of his right to be transferred to Texas under the Interstate Agreement on Detainers (IAD) for a speedy disposition of his Texas charge, he never invoked that right. The State also had a right to obtain appellant's presence in Texas under the IAD but did not invoke that right until 2013. Appellant contended at trial and on appeal that he was denied his constitutional right to a speedy trial. Both courts below rejected that contention. In rejecting appellant's complaint, the court of appeals assessed and balanced the four factors articulated by the Supreme Court in Barker v. Wingo:[1](1) the length of delay, (2) the reasons for delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant. Although the court of appeals found that the length-of-delay factor weighed heavily against the State and that the reasons-for-delay factor weighed against the State (but not heavily), the court also found that the assertion-of-right factor weighed heavily against the defendant and that the prejudice factor did not weigh in the defendant's favor. We agree with most of the court of appeals's reasoning but determine that, because the defendant and the State had an equal ability to bring the case to a speedy resolution by invoking the IAD, both parties are equally at fault under the reasons-for-delay factor. Consequently, that factor does not weigh against either party.

         I. BACKGROUND

         A. The Period of Delay

         On August 28, 1993, a Harris County assistant district attorney filed a complaint alleging that appellant raped a woman at knifepoint in Harris County, Texas.[2] The complaint also alleged that the victim was a self-employed massage therapist, that appellant identified himself to her by name and address, that appellant made an appointment with her to give him a massage at his home, and that he sexually assaulted her after she entered his home. A warrant for appellant's arrest was issued the next day. At some point, appellant traveled to Nebraska and was arrested for offenses he had committed there. On September 21, 1993, the Harris County Sheriff's Office filed a detainer on appellant in Nebraska. Appellant was indicted for the Texas offense on November 4, 1993.

         On April 11, 1995, appellant was sentenced to 50 years without parole and 20-60 years, stacked, on the Nebraska offenses. On April 20, 1995, the Harris County Sheriff's Office filed a detainer with the Nebraska Department of Corrections.

         On May 5, 1995, appellant signed a form that informed him of the detainer for the Texas offense and of his right under the IAD to be transferred to Texas for a speedy disposition of the charge:

Pursuant to the Agreement on Detainers, you are hereby informed that the following are the untried indictments, informations, or complaints against you concerning which the undersigned has knowledge, and the source and contents of each:
Harris County Sheriff's Office, Houston, Texas Aggravated Sexual Assault
You are hereby further advised that by the provisions of said Agreement you have the right to request the appropriate prosecuting officer of the jurisdiction in which any such indictment, information or complaint is pending and the appropriate court that a final disposition be made thereof. You shall then be brought to trial within 180 days, unless extended pursuant to provisions of the Agreement, after you have caused to be delivered to said prosecuting officer and said court written notice of the place of your imprisonment and your said request, together with a certificate of the custodial authority as more fully set forth in said Agreement. However, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
* * *
Should you desire such a request for final disposition of any untried indictment, information or complaint, you are to notify the Special Services Unit, Central Office,
Department of Correctional Services.

         Kim Bryant became the extradition administrator for Harris County in December of 1999. When she discovered that a defendant was incarcerated in an out-of-state facility, her routine was to contact the facility to determine if the defendant "wants to initiate IAD." If she received a "no" answer, then her routine was to speak to the prosecutor and ask if he wanted to initiate IAD. Bryant testified that she followed this routine with respect to appellant's case.[3]

         On September 4, 2013, the Harris County District Attorney filed a request to transfer appellant to Texas pursuant to the IAD. Later that month, appellant was presented with paperwork relating to this transfer request, but he refused to sign it. One of the line items that he refused to sign was a waiver of extradition.[4] Appellant was transferred to Harris County on October 19, 2013.

         On March 18, 2014, appellant moved to dismiss the indictment for failure to afford him a speedy trial. In June of that year, a hearing was held on the motion. In addition to the facts outlined above, there was testimony that the Harris County District Attorney's Office engaged in periodic reviews to determine whether an out-of-state defendant's case was one that warranted the invocation of the IAD. Considerations in that review included the defendant's projected release date in the other state, whether the State could locate witnesses, and whether the case had prosecutorial merit. Priority was placed on murder cases, followed by cases involving aggravated sexual assault. There was also testimony that it cost the county money to bring the inmate to Texas and to return him to the sending state.

         There was also testimony that the victim was still willing and available to testify, and the State indicated that the evidence that was originally submitted to the Medical Examiner's Office for testing still existed. But, the State stipulated, all other physical or documentary evidence-including the rape kit, the victim's clothes, a shirt allegedly belonging to appellant, and the original photo lineup-had been lost or destroyed. Appellant did not testify at the hearing.

         The trial court denied appellant's motion to dismiss, and appellant pled guilty in exchange for a sentence of thirty years in prison, to run concurrently with his other sentences.

         B. Appeal

         On appeal, appellant claimed that the delay in bringing his case to trial violated his Sixth Amendment right to a speedy trial. In analyzing this claim, the court of appeals assessed and balanced the Barker factors.[5] The court of appeals concluded that the delay of more than twenty years between indictment and appellant's motion to dismiss was "more than enough to trigger a full enquiry into the remaining factors" and that, given this lengthy passage of time, the length-of-delay factor weighed heavily against the State.[6]

         In assessing the reasons for delay, the court of appeals determined that the delay was composed of two distinct periods.[7] The first period was from the time the Texas indictment was returned until the end of appellant's trial in Nebraska-a span of nearly one-and-a-half years.[8] The court determined that the State had a valid reason for this period of delay because appellant was being actively prosecuted by another sovereign and the interests of comity justified waiting for that prosecution to conclude.[9]

         The second period was from the time the Harris County Sheriff's Office filed the second detainer until appellant filed his motion to dismiss-a span greater than eighteen-and-a-half years.[10]Appellant had contended that the State acted in bad faith during this period of delay because it knew of appellant's whereabouts, but the court of appeals concluded that that was not enough to establish bad faith.[11] Instead, the court determined that a finding of bad faith requires "evidence that the State engaged in delay for an impermissible reason, such as to obtain an unfair tactical advantage, "[12] and the record contained no such evidence.[13] The State contended that the delay should not count against it at all because, by filing a detainer in Nebraska, the State put appellant on notice that he could have demanded a trial in Texas.[14] The court rejected this contention on the basis that a defendant has no duty to bring himself to trial and that this "primary burden" rests firmly with the State.[15] The court of appeals further concluded that our decision in Dragoo v. State[16] was inconsistent with the State's position:

In Dragoo, the defendant was serving a life sentence in Texas while there was still another charge from Texas pending against him. Because the defendant was already in a Texas prison, the State had no reason to file a detainer under the IAD. The defendant did not insist on a speedy trial until after a delay of three and a half years, even though the defendant was aware of the pending charge, he was represented by counsel, and he could have demanded a trial much earlier. The State did not offer any reason for the delay, and the Court of Criminal Appeals held that this factor weighed in favor of finding a speedy-trial violation. The facts of appellant's case are not more favorable to the State simply because the State filed a detainer. In both this case and Dragoo, the defendant was aware of the pending charge, and the State was aware of the defendant's exact location. Also in both cases, the defendant could have demanded a speedy trial, by virtue of his knowledge of the pending charge, and the State could have compelled the defendant's presence for trial, by virtue of the defendant's status as a prisoner. We see no reason why our analysis should depart from Dragoo.[17]

         Having rejected both appellant's and the State's arguments regarding how to weigh the reasons for delay, the court of appeals took the middle ground and held that the reasons-for-delay factor weighed against the State, but not heavily.[18]

         Regarding the assertion-of-right factor, the court of appeals held that appellant "sat on his rights for more than eighteen and a half years, nearly the same amount of time as the State delayed in bringing appellant to trial."[19] Appellant argued that the assertion-of-right factor should not weigh against him at all because his only notice that he might need to assert his right was conveyed by the IAD form, which he signed when he was not represented by counsel and which was, he claimed, full of legalese.[20] Setting out relevant portions of the text of the IAD form, [21] the court of appeals observed that appellant had "not cited to any case law holding that this language is legally insufficient to apprise the defendant of his right to demand a trial."[22] Rather, "[b]y its plain terms, the form advises a defendant that he has a right to request a final disposition of an indictment pending in another state."[23] Although the form could have been "worded more simply, " the court was unwilling to say that the form was insufficient as a matter of law to provide notice, "especially where such a holding could have ramifications in every jurisdiction that has adopted the IAD."[24] The court of appeals further observed that, had appellant testified at the speedy-trial hearing, the trial court could have considered whether appellant actually understood the form when he signed it.[25] But appellant did not testify, or produce any other evidence that he did not understand the form, so "the trial court was free to determine that appellant fully understood his rights, even without the benefit of representation."[26]

         The court of appeals concluded that appellant's failure to assert his right to a speedy trial for over eighteen-and-a-half years was "strong evidence that appellant did not actually want a trial."[27]Buttressing this evidence was the fact that appellant refused to sign a waiver of extradition after the State initiated IAD procedures.[28] The court concluded that the assertion-of-right factor weighed heavily against appellant.

         Finally, the court of appeals considered the prejudice-to-the-defendant factor, assessing it in light of the interests the right to a speedy trial was designed to protect.[29] The court looked at the three interests identified by the Supreme Court: (1) preventing oppressive pretrial incarceration, (2) minimizing the defendant's anxiety and concern, and (3) limiting the possibility that the defense will be impaired.[30] The court determined that appellant did not contend that the first two interests were in play but focused solely on whether his defense was impaired.[31] The court rejected appellant's contention that the length of delay should give rise to presumed prejudice because that presumption was negated by appellant's long acquiescence in the delay.[32] With respect to whether actual prejudice had been shown, the court pointed out that appellant's motion to dismiss "offered a bare, single sentence explanation of prejudice"-that "exculpatory witnesses likely would have become unavailable or have forgotten facts that would have proven beneficial to the Defendant."[33] The court observed that, despite the fact that appellant was in the best position to support this claim, he called no witnesses to explain who might have been available to testify for the defense but for the State's delay.[34] Although defense counsel referred to the State's stipulation that certain evidence had been lost or destroyed, the court of appeals concluded that the "argument cuts both ways" because "the lost evidence could have been incriminating or exculpatory."[35] "Without knowing the quality of the evidence, " the court of appeals said, "appellant can only speculate that the loss has impaired his defense."[36]

         The court also faulted appellant for failing to identify his defensive theory.[37] The court pointed out that the complaint had alleged that the victim was a massage therapist that appellant invited over to his apartment.[38] If the defense at trial would have been that the victim identified the wrong perpetrator, then the missing rape kit, clothing, and photo lineup would have been relevant.[39]But if the defense at trial would have been that the sex was consensual, then none of that evidence would have been relevant.[40] "Because appellant never identified a theory, " the court of appeals held, "the trial court was free to find that appellant did not prove that his defense was impaired."[41] Because appellant had failed to make a prima facie showing of prejudice, the court of appeals concluded that the prejudice-to-the-defendant factor did not weigh in his favor.[42]

         In balancing the factors, the court of appeals acknowledged "that there is fault to be shared by both sides."[43] The court determined that the length-of-delay and reasons-for-delay factors favored appellant but that those factors were largely offset by the assertion-of-right factor, which favored the State, and that the prejudice-to-the-defendant factor did not alter the balance.[44] Consequently, the court of appeals held that the balance of factors did not establish a violation of appellant's constitutional right to a speedy trial.[45] The court of appeals affirmed the conviction.[46]

         II. ANALYSIS

         A. Speedy-Trial Law

         The Sixth Amendment guarantees a defendant in a criminal prosecution the right to a speedy trial.[47] "The speedy-trial right is amorphous, slippery, and necessarily relative."[48] Rejecting inflexible approaches, the Supreme Court has established a balancing test "in which the conduct of both the prosecution and the defendant are weighed."[49] Courts are to consider the length of delay, the reasons for delay, to what extent the defendant has asserted his right, and any prejudice suffered by the defendant.[50]

         The length of delay is a double inquiry: A court must consider whether the delay is sufficiently long to even trigger a further analysis under the Barker factors, and if it is, then the court must consider to what extent it stretches beyond this triggering length.[51] In assessing the reasons for delay, a court must accord different weights to different reasons, and it must ask "whether the government or the criminal defendant is more to blame for the delay."[52] Deliberate delay to hamper the defense is weighed heavily against the government while more neutral reasons such as negligence or overcrowded courts weigh against the government but less heavily.[53] Delay caused by the defense weighs against the defendant.[54] A defendant has a responsibility to assert his right to a speedy trial.[55]Although a defendant's failure to assert his right is not automatically fatal to a speedy-trial claim, a failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.[56] The prejudice factor should be assessed in light of the interests the right to a speedy trial was designed to protect: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired.[57]Affirmative proof of particularized prejudice is not essential to every speedy trial claim because "excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify . . . and its importance increases with the length of delay."[58]

         B. Interstate Agreement on Detaineers (IAD)

         The IAD is a compact between states (and some other jurisdictions)[59] that enables a party state to obtain custody of an out-of-state prisoner for prosecution and imposes duties to ensure a prisoner's quick return to the sending state.[60] Texas has codified the IAD in the Code of Criminal Procedure.[61] If a defendant is serving a term of imprisonment in another state and the State of Texas files a detainer in that other state, both the State of Texas and the defendant have a right to demand the transfer of the defendant to Texas for a final disposition of the Texas charge.[62] If the defendant initiates a demand under the IAD, then the State of Texas must bring the defendant to trial within 180 days after the prosecuting officer and the appropriate court receive the defendant's demand.[63]If the State of Texas initiates a demand under the IAD, then the State of Texas must bring the defendant to trial within 120 days of his arrival in Texas. The IAD accords the governor of the state that holds the prisoner the power to disapprove a demand initiated by the State[64] but accords no such power with respect to a demand initiated by the defendant.[65]

         C. Reasons for Delay: Defendant's Failure to Invoke IAD

         The State contends that none of the time appellant spent confined in Nebraska should count against the State under the reasons-for-delay factor because the IAD gave appellant the right to effectuate his transfer to Texas and to obtain a speedy trial, and appellant was aware of this right but chose not to exercise it. The State relies upon several cases from other jurisdictions to support this contention[66] but also acknowledges other cases that seem contrary to its claim.[67] Appellant points to the Supreme Court's statement in Barker that the Sixth Amendment "places the primary burden on the courts and prosecutors to assure that cases are brought to trial"[68] and to our statement in Gonzales v. State that taking into account the defendant's conduct in the reason-for-delay factor "conflates the State's reasons for delay with whether [the defendant] timely asserted his right to a speedy trial."[69]

         The Supreme Court has not ruled on the issue in this case, but in Smith v. Hooey, the Court has held that a defendant's custody in another jurisdiction does not by itself relieve the state of the obligation to timely bring the defendant to trial.[70] Upon an out-of-state prisoner's demand for a speedy trial, a state must "make a diligent, good faith effort to bring him before" the appropriate court for trial.[71] This admonition by the Supreme Court is not, however, on point in the present case because appellant made no demand for a speedy trial in the Texas case while he was incarcerated in Nebraska.

         Moreover, Smith, arising from a Texas prosecution, was decided before Texas adopted the IAD.[72] The fact that the IAD was unavailable to Smith was one reason his numerous requests over the years for a speedy trial went unheeded.[73] Similarly, the IAD did not provide a remedy for the defendant in Dragoo-the case relied upon by the court of appeals-because he was confined in prison in Texas, [74] and the IAD applies only to a prisoner confined in another state.[75] The defendants in Smith and Dragoo had no mechanism to enforce a speedy trial, other than to invoke the "amorphous, slippery, and necessarily relative" speedy-trial guarantee in the Sixth Amendment.[76]By contrast, the IAD's remedy was available to appellant, and that remedy ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.