${Defendant_First} ${member_last}
${member_address}
${member_city}, ${defendant_state} ${member_zip}
${member_email}
Case: ${MEMBER_CASE_NO}
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STATE OF TEXAS VS ${Defendant_First} ${member_last} |
§ § § § § |
${jurisdiction_name} County Of ${county} |
Now comes ${Defendant_First} ${member_last}, hereinafter referred to as “Defendant” in the above styled case and moves the court as follows:
Defendant was arrested on the ___ day of __________ Defendant demands that the court abide by its Constitutional duty to provide Defendant with a speedy trial in accordance with the courts oath of office.
The State, in Fred MESHELL, Appellant, v. The STATE of Texas, Appellee. No. 1339-85 overturned the Speedy Trial Act on the following grounds:
The State would show that the caption of said bill [Acts 1977, 65th Leg., Ch. 787, pg. 1970] is defective in that it does not and did not contain sufficient information as to inform members of the Legislature as to its content and therefore violates the caption requirement and Art. III, Sec. 35 of The Texas Constitution.
The State would further show that the Texas Speedy Trial Act is a violation of the separation of powers doctrine, Art. II, Sec. 1, and also is a violation of The Texas Constitution, Art. V, Sec. 8, Art. V, Sec. 16, Art. V, Sec. 19, and any other applicable provisions of the Texas Constitution.
Without addressing whether or not the Senate Bill 1043 adequately informs the Legislators of the contents of the bill or that it intruded on the power of the Judiciary, the abstract clearly stated the Legislative intent in that trials must be held within specifically stated time limits. This is as clear a statement of Legislative intent as can be had. ( Check out Rosario V State).
Plaintiffs move this court to distinguish the speedy trial test in Texas as different from Barker v. Wingo. In Zamorano v. State, 84 S.W.3d 643, 648-49 (Tex. Crim. App. 2002) the court opined as follows:
The length of the delay between an initial charge and trial (or the defendant’s demand for a speedy trial) acts as a “triggering mechanism.” Unless the delay is presumptively prejudicial, courts need not inquire into examine the other three factors. Given the “imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.” However, the Supreme Court has explained that “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” If the accused shows that the interval between accusation and trial has crossed the threshold dividing “ordinary” from “presumptively prejudicial” delay, a court must then consider the extent to which that delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. This second inquiry is significant to the speedy trial analysis because “the presumption that pretrial delay has prejudiced the accused intensifies over time.” Thus, any speedy trial analysis depends first upon whether the delay is more than “ordinary”; if so, the longer the delay beyond that which is ordinary, the more prejudicial that delay is to the defendant. Zamorano v. State, 84 S.W.3d 643, 648-49 (Tex. Crim. App. 2002)
Plaintiff moves this court to adopt the stated Legislative intent of that time it considered timely as clearly stated in the preamble to Senate Bill 1043 of the 83rd Legislature cited above.
While that may be the case in the United States Generally, in Texas the Legislature stated specifically what it considered a reasonable delay in the abstract contained in Senate Bill 1043 of the 83rd Legislature. The abstract of the bill reads as follows:
IN DETERMINING WHETHER A DELAY AFTER ARREST HAS VIOLATED A DEFENDANT’S 6TH AND 14TH AMENDMENT RIGHT TO A SPEEDY TRIAL, THE U.S. SUPREME COURT HAS ARTICULATED A BALANCING TEST. FROM THE DECISION IN BARKER V. WINGO (1972), COURTS MUST LOOK AT THE LENGTH OF THE DELAY, THE REASON FOR THE DELAY, THE DEFENDANT’S ASSERTION OF HIS RIGHT, AND PREJUDICE TO THE DEFENDANT. UNDER THE TEXAS SPEEDY TRIAL ACT THERE IS NO REQUIREMENT OF A SHOWING OF PREJUDIC’, AND ALTHOUGH A MOTION FOR DISCHARGE MUST BE MADE BEFORE TRIAL, THE INTERVAL WHICH WILL SHIFT TO THE PROSECUTOR THE BURDEN JUSTIFYING THE DELAY IS MUCH SHORTER THAN THE CONSTITUTIONAL THRESHOLD OF 1 YEAR. ALL FELONIES MUST BE BROUGHT TO TRIAL WITHIN 120 DAYS OF THE COMMENCEMENT OF THE CRIMINAL ACTION. IF A MISDEMEANOR IS PUNISHABLE BY IMPRISONMENT FOR MORE THAN 180 DAYS, THE STATE MUST BE READY WITHIN 90 DAYS OF THE COMMENCEMENT OF THE PROSECUTION; IF THE PUNISHMENT IS LESS THAN 180 DAYS THE STATE HAS ONLY 60 DAYS TO PREPARE. IF THE OFFENSE IS PUNISHABLE BY FINE ONLY, THE PROSECUTOR HAS A 30 DAY PERIOD TO BRING ACTION. THE LAW IS INTENDED NOT ONLY TO PROTECT DEFENDANT’S RIGHTS, BUT ALSO TO REDUCE THE PROBLEM OF OVERCROWDED JAILS. PROBLEMS WITH THE STATUTE CENTER AROUND THE NUMEROUS EXCEPTIONS TO THE TIME LIMITS, INCLUDING REASONABLE DELAYS WHILE THE STATE OBTAINS EVIDENCE. ALTHOUGH THERE ARE WAYS FOR COURTS TO EXCLUDE TOO MUCH TIME, AND FOR PROSECUTORS TO SEEK UNJUSTIFIED EXCLUSIONS, THIS STATUTE SHOULD ENCOURAGE A MORE REASONALBE FLOW OF CASES. APPENDED MATERIALS INCLUDE THE FORM FOR DEFENDANT’S MOTION FOR DISCHARGE UNDER THE ACT. FOOTNOTES ARE PROVIDED. (TWK).
The current criminal justice practice in Texas is designed to put every person arrested in a position such that they have no reasonable option to taking a plea when offered. This is part and parcel to an ongoing criminal enterprise designed and intended to extract a deal from every person arrested without regard to the right of things or the rule of law.
Currently, if a person is arrested in Texas, they will be taken directly to jail with no attempt made to locate a magistrate. This is done as a matter of policy. The person is then brought before a mock hearing the next morning where a magistrates reads the accused some of their rights then illegally sets bail outside a proper examining trial.
After the hearing, the magistrate will return the documents used in the hearing to the jailers instead of sealing them in an envelope and forwarding them to the clerk of the court of jurisdiction as commanded by Article 17.30 Texas Code of Criminal Procedure. This leaves no record in the court of the accused’s arrest or imprisonment.
Notice is somehow given to the prosecuting attorney who will then start a campaign of harassment designed and intended to force the accused into taking a plea bargain. The process is so successful that the current conviction rate in Texas is 99.6%.
This process can only work if the prosecutor has unlimited time in which to torture the accused until they give in and take a deal.
The denial of a speedy trial is a necessary predicate act on which the above scheme relies. We will speak to the remainder of the improper acts in the section on R.I.C.O. below.
Plaintiff will show that the police, prosecutors, judges and defense counsel have all worked in concert and collusion, one with the other, toward the disenfranchisement of the public from their statutory and Constitutional rights for the specific purpose of easing the workloads of all involved. The key element of the above alleged criminal conspiracy is the ability to hold charges over someone’s head indefinitely.
Prosecutors want more control over their dockets and prosecutors want time to apply inconvenience and stress in order to coerce a deal. They need time to order you to court several repeatedly so that they can turn the emotional screws and eventually coerce the accused into taking a deal simply to end the persecution and get on with their lives.
A primary tactic is to delay, to order to bring accused to court repeatedly, with no intention of holding a hearing but rather, the accused is ordered to court to meet and confer with the prosecutor so that the prosecutor can threaten the accused with all the things the prosecution will do to them if they don’t take a perfectly reasonable deal. If an accused has the audacity to assert innocence, prosecutors then send the summons to the wrong address and when the accused don’t show up. they charge them with failure to appear and agree to drop the charge of they take the prosecutors deal offer. The only drawback is this peskey problem of the Constitutional prohibition on public officials forbidding them from extending the time to trial.
The courts have addressed the “right to a speedy trial” as if it is some sort of gift to the citizen. Plaintiff suggests that notion is wrong headed. The Texas Constitution, in this regard, grants nothing to the citizen. The Constitution specifically forbids governmental officials, including the courts, from certain actions. The courts are not required to grant a citizen in the right to a speedy trial; the courts commanded and agreed to, provide a speedy trail to all citizens, whether they want one or not. There is nothing in the Texas Constitutional mandate which indicates the framers intended the prescription may be waived or denied.
Plaintiff finds nothing in the verbiage of the Texas Constitution, or the statements of the Founders, which indicates they intended the Constitutional prohibitions only apply if the citizen demand they apply, timely or otherwise. The very notion that the courts can carve out exceptions to the Constitutional prohibitions is repugnant to an ordered society.
Plaintiff is prepared to show that, prosecutors have acted in concert and collusion with the Judges of the Court of Appeals and others to direct and train prosecutors, magistrates, police, and judges in practices and procedures calculated to systematically deny citizens in the full and free access to specific mandates as commanded by the Texas Constitution. A primary mandate is the duty to provide a speedy trial.
This process of coercion takes time and is inconsistent with defendant’s fundamental right to a speedy trial as opined by the courts in Barker v Wingo as follows:
Although a speedy trial is guaranteed the accused by the Sixth Amendment to the Constitution,[1] this Court has dealt with that right on infrequent occasions. See Beavers v. Haubert, 198 U.S. 77 (1905);
The refusal of the District Attorney to proceed with the prosecution and the failure of the court below to discharge Beavers from the arrest complained of deprived him of his constitutional right to a speedy trial by jury in the Eastern District of New York. United States v. Fox, 3 Mont. 312; note to In re Bergeron, 85 Am. St. Rep. 178, 204; Sutherland's notes on the U.S. Const.; Nixon v. State, 41 Am. Dec. 601; Cooley Const. Lim., 7th ed., 440.
Pollard v. United States, 352 U.S. 354 (1957);
Our law, based upon centuries of tragic human experience, requires that before a man can be sent to a penitentiary, he is entitled to a speedy trial, to be present in court at every step of the proceedings, at all times to be represented by counsel, or to speak in his own behalf, and to be informed in open court of every action taken against him until he is lawfully sentenced. These are not mere ceremonials to be neglected at will in the interests of a crowded calendar or other expediencies. They are basic rights. They bulk large in the totality of procedural rights guaranteed to a person accused of crime. Here, in the case of an impecunious defendant, who was summarily rushed through the court mill without benefit of counsel, all of them, in some degree, were denied him.
United States v. Ewell, 383 U.S. 116 (1966);
A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice." Beavers v. Haubert, 198 U.S. 77, 87. "Whether delay in completing a prosecution . . . amounts to an unconstitutional deprivation of rights depends upon the circumstances. . . . The delay must not be purposeful or oppressive," Pollard v. United States, 352 U.S. 354, 361. "[T]he essential ingredient is orderly expedition and not mere speed." Smith v. United States, 360 U.S. 1, 10.
United States v. Marion, 404 U.S. 307 (1971).
The motion to dismiss rested on grounds that had nothing to do with guilt or innocence or the truth of the allegations in the indictment but was, rather, a plea in the nature of confession and avoidance, that is, where the defendant does not deny that he has committed the acts alleged and that the acts were a crime but instead pleads that he cannot be prosecuted because of some extraneous factor, such as the running of the statute of limitations or the denial of a speedy trial. See United States v. Weller, 401 U.S. 254, 260 (1971). The motion rested on constitutional grounds exclusively, and neither the motion, the arguments of counsel, the Court's oral opinion, nor its judgment mentioned Federal Rule of Criminal Procedure 48(b), as a ground for dismissal. Our jurisdiction to hear this appeal has been satisfactorily established.
See also United States v. Provoo, 17 F. R. D. 183 (D. Md.), aff'd, 350 U.S. 857 (1955). The Court's opinion in Klopfer v. North Carolina, 386 U.S. 213 (1967), established that the right to a speedy trial is "fundamental" and is imposed by the Due Process Clause of the Fourteenth Amendment on the States.[2] See Smith v. Hooey, 393 U.S. 374 (1969);
We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, "We will sell to no man, we will not deny or defer to any man either justice or right"; but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon (1166). By the late thirteenth century, justices, armed with commissions of goal delivery and/or oyer and terminer were visiting the countryside three times a year. These justices, Sir Edward Coke wrote in Part II of his Institutes, "have not suffered the prisoner to be long detained, but at their next coming have given the prisoner full and speedy justice, . . . without detaining him long in prison." To Coke, prolonged detention without trial would have been contrary to the law and custom of England; but he also believed that the delay in trial, by itself, would be an improper denial of justice. In his explication of Chapter 29 of the Magna Carta, he wrote that the words "We will sell to no man, we will not deny or defer to any man either justice or right" … Magna Carta, c. 29 [c. 40 of King John's Charter of 1215] (1225), translated and quoted in Coke, The Second Part of the Institutes of the Laws of England 45 (Brooke, 5th ed., 1797).
"4. And when a robber or murderer or thief or receiver of them has been arrested through the aforesaid oath, if the justices are not about to come speedily enough into the country where they have been taken, let the sheriffs send word to the nearest justice by some well-informed person that they have arrested such men, and the justices shall send back word to the sheriffs informing them where they desire the men to be brought before them; and let the sheriffs bring them before the justices." 2 English Historical Documents 408 (1953).
An example of the Commission of goal delivery is set forth in Goebel, Cases and Materials on the Development of Legal Institutions 53 (7th rev. 1946): "The lord king to his beloved and faithful Stephen de Segrave and William Fitz Warin, greeting. Know that we have appointed you justices to deliver our gaol at Gloucester, in accordance with the custom of our realm, of the prisoners arrested and held there. And hence we order you that in company with the coroners of the county of Gloucester you convene at Gloucester on the morrow of the festival of the Holy Trinity in the twelfth year of our reign [Monday, May 22, 1228], to deliver the aforementioned gaol, as aforesaid, for we have ordered our sheriff of Gloucestershire that at the aforesaid time and place he cause to come before you all the prisoners in the aforesaid gaol and all persons attached to appear against them and on account of them. In witness whereof, etc. Dated April 20, in the twelfth year of our reign." "The judges commissioned in a general oyer and terminer commission," Professor Goebel writes, "are ordered to inquire by grand jury of named crimes, from treasons to the pettiest offense, as to all particulars and to hear and determine these according to the law and custom of the realm." Id., at 54. Id., at 54.Coke, op. cit. supra, n. 8, at 43.See Ibid.
"And therefore, every subject of this real me, for injury done to him in bonis, terris, vel persona, by any other subject, be he ecclesiastical, or temporal, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay."
Dickey v. Florida, 398 U.S. 30 (1970). As MR. JUSTICE BRENNAN *516 pointed out in his concurring opinion in Dickey, in none of these cases have we attempted to set out the criteria by which the speedy trial right is to be judged. 398 U.S., at 40-41.
Plaintiff could continue this line of cases back to the beginning of the United States Republic and show how the right was clearly defined long before the Texas Republic who also adopted the clear requirement in the Texas Constitution @ Article 1 Section 10 which reads as follows:
Section 10 - RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS
In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger. (Amended Nov. 5, 1918.) (emphasis added)
The court will take notice that the first right addressed is the right to a speedy trail.
In Barker v Wingo supra, the federal courts opined as follows:
In this habeas corpus proceeding the Court of Appeals, concluding that petitioner had waived his right to a speedy trial for the period prior to his demand for trial…
This raises the question, where is a defendant in a criminal prosecution granted the right to exempt a public official from the requirements of a Constitutional condition of employment? Plaintiff can find no provision for this in the Texas Constitution. As a matter of fact, it is clear that our founders frowned on such behavior when it included Texas Constitution Article I Section 29 which reads as follows:
Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that every thing in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.
While the federal courts may be able to play fast and loose with Constitutional prohibitions, no such power exists in Texas. If our Framers and subsequent Legislators had intended the courts be able to arbitrarily and capriciously exempt themselves from certain Constitutional prohibitions, they would have said so. Absent any language in the Texas Constitution that would give a reasonable person of ordinary prudence reason to believe the Texas Constitutional conditions hinged on caprice of the accused. Plaintiff alleges, any consideration of the command to the judiciary that they ensure a speedy trial somehow hinges on a demand by someone who has been arrested and stuffed in jail, is simply unconscionable Cantu v. State, 253 S.W.3d 273 and its predecessors or progeny notwithstanding.
The courts have presumed that a violation of a law or Constitutional prohibition only exists if the defendant can show harm as in Dragoo v. State:
In determining whether an accused has been denied his right to a speedy trial, a court must use a balancing test "in which the conduct of both the prosecution and the defendant are weighed." Barker v. Wingo, 407 U.S. 514, 530 (1972). The factors to be weighed in the balance include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant's assertion of his speedy trial right, and the prejudice to the defendant resulting from the delay. Ibid. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial. Id. at 533. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003)
The above follows Barker v Wingo supra. While such may be the case in the federal arena, this is not the federal arena. This is Texas and in Texas there is no Constitutional exclusion to the application of the Constitutional prohibitions. Before taking office, each judge must swear to the following oath:
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS,
I,____________________________ , do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ___________________________________ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.
The courts in Dragoo v. State supra would have it that the judge is not required to uphold the Texas Constitution unless the accused can show harm. The question becomes:
“Where did they come up with this? Did they make it up?”
It is not in the Texas Constitution. Neither is there an exclusion of the Constitutional prohibitions anywhere in any statute.
The above oath constitutes a contract between the judge and the people of the Republic knowns as The State of Texas. Where a judge fails to uphold a restriction contained in the Texas Constitution the judge commits an act of negligence at least, if not Official Oppression supra.
It is the assertion and allegation of Plaintiff that, the failure to provide a defendant with a speedy trial, as commanded by the Texas Constitution, is beyond the scope of any Texas judge or prosecutor to mitigate. Both are under oath to provide a speedy trial and a failure on their part to perform in accordance with the covenants of their oath constitutes a repudiation of their contract with the state and renders them liable for an action in Quo Warranto under Texas Civil Practice and Remedies Code Chapter 66.
When a public official acts in contravention of his/her contract with the state, the officer operates ultra vires and outside public sanction. Such an act must be construed as an abuse of discretion in the context of Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) which reads in pertinent part as follows:
A trial court has no "discretion" in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. See Joachim v. Chambers, 815 S.W.2d 234, 240 (Tex. 1991) (trial court abused discretion by misinterpreting Code of Judicial Conduct); NCNB Texas National Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989) (trial court abused discretion by failing to apply proper legal standard to motion to disqualify counsel); Eanes ISD v. Logue, 712 S.W.2d 741, 742 (Tex. 1986) (trial court abused discretion by erroneously finding constitutional violation).
The right to a speedy trial arises from the time the defendant is formally accused or arrested. Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975);
An interval of 22 months elapsed between petitioner's arrest and indictment, and a further period of 12 months between his indictment and trial, upon charges of automobile theft in violation of 18 U.S. C. §§ 371, 2312, and 2313. The District Court for the Northern District of Georgia denied petitioner's motions made immediately after arraignment and posttrial to dismiss the indictment on the ground that petitioner had been denied a speedy trial in violation of the Sixth Amendment. The Court of Appeals for the Fifth Circuit affirmed, holding that under United States v. Marion, 404 U.S. 307 (1971), the 22-month
"pre-indictment delay . . . is not to be counted for the purposes of a Sixth Amendment motion absent a showing of actual prejudice." United States v. Palmer, 502 F.2d 1233, 1235 (1974).
This reading of Marion was incorrect. Marion presented the question whether in assessing a denial of speedy trial claim, there was to be counted a delay between the end of the criminal scheme charged and the indictment of a suspect not arrested or otherwise charged previous to the indictment. The Court held:
"On its face, the protection of the [Sixth] Amendment is activated only when a criminal prosecution has begun and extends only to those persons *65 who have been `accused' in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time."
404 U.S., at 313. In contrast, the Government constituted petitioner an "accused" when it arrested him and thereby commenced its prosecution of him. Marion made this clear, id., at 320-321, where the Court stated:
"To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina, [386 U.S. 213 (1967)]; see also Smith v. Hooey, 393 U.S. 374, 377-378 (1969). So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.
Since it is "doubtless true that in some cases the power of the Government has been abused and charges have been kept hanging over the *318 heads of citizens, and they have been committed for unreasonable periods, resulting in hardship," the Court noted that many States "[w]ith a view to preventing such wrong to the citizen . . . [and] in aid of the constitutional provisions, National and state, intended to secure to the accused a speedy trial" had passed statutes limiting the time within which such trial must occur after charge or indictment.[9] Characteristically, these statutes to which the Court referred are triggered only when a citizen is charged or accused.[10] The statutes vary greatly in substance, *319 structure, and interpretation, but a common denominator is that "[i]n no event . . . [does] the right to speedy trial arise before there is some charge or arrest, even though the prosecuting authorities had knowledge of the offense long before this." Note, The Right to a Speedy Trial, 57 Colo. L. Rev. 846, 848 (1957).
See also: Easley v. State, 564 S.W.2d 742 (Tex.Cr.App. 1978), cert. denied, 439 U.S. 967, 99 S. Ct. 456, 58 L. Ed. 2d 425 (1978). The court will note that the above time is not mitigated by the failure of a citizen to demand that the prosecution do what the Constitution already ordered him/her to do.
Unlike the statutory Speedy Trial Act, which addressed prosecutorial delays only, the constitutional right to a speedy trial governs the entire criminal justice process. Thus, the overcrowded dockets of trial courts, while a factor to be considered, do not excuse trial delays. But see, Phillips v. State, 659 S.W.2d 415, 419 (Tex.Cr. App.1983); Ostoja v. State, 631 S.W.2d 165, 167 (Tex.Cr.App.1982). As the Supreme Court stated in Barker v. Wingo, 407 U.S. 514 (1972),
"[a] more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Id., 407 U.S. at 532, 92 S.Ct. at 2192, 33 L. Ed. 2d at 117; Phillips v. State, 650 S.W.2d 396, 400 (Tex.Cr.App. 1983).
The primary burden is on the prosecution and the courts to ensure that defendants are speedily brought to trial. Turner v. State, 504 S.W.2d 843, 845 (Tex.Cr.App. *137 1974);
“It is true that the primary burden is on the prosecution and the courts to insure that defendants are speedily brought to trial. McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App. 1973). ”
In Barker v. Wingo,407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1971), the United States Supreme Court discussed the right to a speedy trial noting it was a more vague and generically different concept than other constitutional rights guaranteed a criminal defendant, and that it was impossible to pinpoint a precise time in the judicial process when the right must be asserted or considered waived. The Court further observed that while a defendant's assertion of, or failure to assert, his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of such right, the primary burden remains on the courts and the prosecutors to assure that cases are speedily brought to trial. McKinney v. State, 491 S.W.2d 404, 407 (Tex. Crim. App. 1973)
Both the trial court and prosecution are under a positive duty to prevent unreasonable delay. The Texas Constitution does not quibble. Tt commands public officials to provide a speedy trial whether the accused demands it or not so any consideration of Federal law as it applies to the Texas Constitutional provision is irrelevant here.
The courts have ruled, if a speedy trial is not demanded it is waived. Plaintiff alleges that such case law is unconstitutional. Our founders, upon framing the Constitution, clearly intended that it’s prescriptions be sacrosanct.
It is the sworn duty of the courts to ensure a speedy trial without regard to whether a defendant demands it or not. The Constitution simply cannot be presumptively waived. The court in ROSARIO ZAMORANO, Appellant v.THE STATE OF TEXAS ruled as follows:
According to the Supreme Court, the nature of the speedy trial right “makes it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants.” Of course, the defendant has no duty to bring himself to trial; that is the State’s duty. This does not mean that the defendant has no responsibility to assert his right to a speedy trial. Whether and how a defendant asserts his speedy trial right is closely related to the other three factors because the strength of his efforts will be shaped by them. Therefore, the defendant’s assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. Conversely, a failure to assert the right makes it difficult for a defendant to prove that he was denied a speedy trial.
Appellant filed his motion for speedy trial on June 3, 1998, about two and one-half years from the date of his arrest. The record is unclear whether appellant objected to the resets before that date. During the two hearings, defense counsel argued that appellant had announced “ready” on all dates, save the one “not ready” mentioned above. The court of appeals discounted appellant’s second try for a speedy trial because “there [was] no indication that he requested an immediate setting of the motion to reconsider,” and held that appellant’s “delay and lack of persistence in asserting his right to a speedy trial weigh[ed] against him.”
We disagree that the assertion-of-the-right factor weighs against appellant. It is true that appellant’s initial motion was tardy. This late assertion, had no subsequent motion been filed, might well have undercut his Sixth Amendment claim. But appellant’s second attempt to seek a speedy trial, which came less than two months after the trial court denied his initial motion, evidenced his persistence. This is not a case where appellant never asked for a hearing. Nor is this a case in which evidence shows a defendant’s affirmative desire for any delay. Appellant’s repeated assertion weighs in his favor.
The above consideration is simply wrong headed. It treats the speedy trial matter as a Sixth Amendment matter under the Federal Constitution. It is no such thing. It is an Article I matter under the Texas Constitution. There is nothing in the Texas constitution which indicates or even implies that the commandments made there can be mitigated by the acts of citizens.
Plaintiff asserts that Constitutional provisions do not apply to Defendants. The protections are prohibitions placed on public officials. To assert that a Constitutional right must be invoked to have effect is to place the Judiciary above the Constitution. This incursion by the courts upon Constitutionally forbidden territory is wrongful and an abuse of office and would work to suspend the prohibition included in the Constitution in violation of The Texas Constitution Article 1 Section 28 which reads as follows:
Sec. 28. SUSPENSION OF LAWS. No power of suspending laws in this State shall be exercised except by the Legislature.
To rule that a citizen must timely demand that the courts abide by a Constitutional mandate or that mandate somehow ceases to apply is to war against the clear verbiage of the Constitution.
The courts would have it that the Constitution only applies if the citizen demand that it apply. Defendant asserts, Article 1, Section 10 of the Texas Constitution always applies and the court and Legislature are forbidden to change it as stipulated by Article 1, Section 29 which reads as follows:
Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.
Plaintiffs assert and move this court to rule that the Texas Constitution always applies, any laws, rulings, or regulations to the contrary notwithstanding.
As the Texas Constitution bestows upon court the duty to provide a speedy trial, Defendant, hereby, demands a showing of due cause for any delay beyond the limits set forth in the stated intent of the Legislature in the preamble to Senate Bill 1043 of the 83rd Legislature
Defendant specifically asserts, no delay may be occasioned or sanctioned as a result of the State’s failure to sufficiently staff the offices of prosecuting attorneys. The Texas Constitution may not be subverted subsequent to financial decisions of budget setting bodies. Therefore, Defendant specifically objects to any allegations of delay resulting from staffing inadequacies of state agencies.
Plaintiff also objects to any alleged delay occasioned by any alleged crisis. Crises come and go and public officials will never let any crisis go to waste. The courts cannot use the alleged pandemic as an excuse to deny the citizens in their constitutional rights as evidenced by the Texas Supreme Court in IN RE SALON A LA MODE, ET AL. as follows:
“The Constitution is not suspended when the government declares a state of disaster.” In re Abbott, No. 20-0291, 2020 WL 1943226, at *1 (Tex. Apr. 23, 2020). All government power in this country, no matter how well-intentioned, derives only from the state and federal constitutions. Government power cannot be exercised in conflict with these constitutions, even in a pandemic.
A catch all delay is to claim delay for the purpose of further investigation. If the prosecution was not ready to prosecute, it should not have brought the prosecution or, in the event the prosecution was occasioned by an arrest, the prosecution could have move the court to dismiss the prosecution and brought it later, after the completion of an investigation. The Constitution cannot be abridged because the prosecutor acted injudiciously in bringing the prosecution prematurely.
It is the assertion and allegation of Defendant that, any application of the provisions of Barker v Wingo, or it’s progeny as applied to the State of Texas is in contravention to the Texas Constitution and the accused need not demand that public officials abide by their sworn oath in order for the official to be so bound. Defendant further asserts that, according the the clear intent of the Legislature on addressing the matter of speedy trial that a trial for a class c misdemeanor be held within 30 days of the arrest.
Defendant moves this court to convene a trial in the instant matter withing 30 days of the date of arrest.
Respectfully,
_________________________
${Defendant_First} ${member_last}
${member_address}
${member_city}, ${defendant_state} ${member_zip}
${member_email}
Case: ${MEMBER_CASE_NO}
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STATE OF TEXAS VS ${Defendant_First} ${member_last} |
§ § § § § |
${jurisdiction_name} COUNTY OF ${county} |
ORDER
This, the ______day of __________________, ${current_year} the foregoing motion having been presented and heard by the Court, it is hereby ORDERED that:
All relief requested is hereby granted.
__________________________
Judge Presiding
The relief requested is granted in part as follows:
____________________________________________________________
____________________________________________________________
____________________________________________________________
__________________________
Judge Presiding
All relief requested is DENIED, to which action Defendant excepts.
__________________________
Judge Presiding
VERIFICATION
I, ${Defendant_First} ${member_last}, do swear and affirm that all statements made herein are true and accurate, in all respects, to the best of my knowledge.
__________________
${Defendant_First} ${member_last}
${member_address}
${member_city}, ${defendant_state} ${member_zip}
${member_email}
The Person above, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to this document and acknowledged to me that he/she executed the same in his authorized capacity and that by his signature on this instrument who is the person who executed this instrument.
I certify under PENALTY OF PERJURY under the laws of this State that the foregoing paragraph is true and correct.
Witness my hand and official seal.
_________________________________________ __________________________
NOTARY PUBLIC IN AND FOR Notary Seal
THE STATE OF TEXAS
CERTIFICATE OF SERVICE
I, ${Defendant_First} ${member_last}, hereby certify that a true and correct copy of above and foregoing has been delivered to ___________________________________________________, on this the ___ day of _____________ ${current_year}, by certified mail (Certified Mail Receipt # _____ _____ _____ _____ _____), in accordance with the rules governing same.
___________________
${Defendant_First} ${member_last}
${member_address}
${member_city}, ${defendant_state} ${member_zip}
${member_email}