Opinion
No. 06-05-00206-CR.
Submitted May 18, 2006. Decided June 20, 2006. Discretionary Review Refused September 20, 2006.
Appeal from the 188th Judicial District Court, Gregg County, Alvin Khoury, J.
Ray Bowman, Asst. Dist. Atty., William M. Jennings, Dist. Atty., Longview, for appellant.
Clement Dunn, Longview, for appellee.
Before MORRISS, C.J., ROSS and CARTER, JJ.
OPINION
By the time the trial court released Corey Dewayne Fisher based on its finding that Fisher had been denied a speedy trial, Fisher had been in jail for almost ten months on felony charges of possession of more than four grams of cocaine with intent to deliver, possession of more than four, but less than 200 grams of cocaine, and possession of a firearm by a felon. The State appeals. See TEX.R.APP. P. 26.2(b).
This appeal concerns Fisher's charge of possessing a weapon while a felon. See TEX. PEN. CODE ANN. § 46.04 (Vernon Supp. 2005). The issues in this appeal are identical to those presented in State v. Fisher, 2006 WL 1676200, 198 S.W.3d 332, (Tex.App.-Texarkana, 2006). the felony cocaine possession case. All but a few of the facts presented in that appeal are the same as in this case. As a result, our opinion in that appeal is directly applicable to this appeal, with only the differences noted below.
In both cases, the State offered as its reason for delay its need to get laboratory work done on the substance alleged to be cocaine. Certainly, before the State went to trial in the cocaine possession case it needed a laboratory report that the substance was in fact cocaine. That report was not needed at all to try the weapon possession charge. We recognize the State's right to try certain charges together, and the benefit in economy of resources in doing that. See TEX. PEN. CODE ANN. § 3.02 (Vernon 2003) (charges arising from same criminal episode may be tried together). But in this case, the reason for delay — the second Barker factor — is weaker than in the cocaine possession case and is therefore moderately weighted against the State.
See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182 (1972); see also Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992).
But, considering the other Barker factors and their relative weights as stated in State v. Fisher, 198 S.W.3d 332, we still hold the trial court erred in weighing the Barker factors. As we state in our opinion in the companion appeal, the length of the delay should be accorded a slight weight against the State, Fisher's assertion of his right to a speedy trial should be accorded a slight weight against Fisher, and the prejudice factor should be weighted moderately against Fisher.
We note, also, that the felony charges in this case and the companion appeal were not the only charges pending against Fisher during the time in question. Though the other charges are not thoroughly described in the record, there were other pending charges that may have kept Fisher in jail notwithstanding an earlier resolution of the felony charges involved in this, and the companion, appeal. To that extent, the prejudice to Fisher in each case may have been reduced to zero. See Kelly v. State, 163 S.W.3d 722, 730 (Tex.Crim.App. 2005).
We conclude the weight we have assigned the various factors fails to tip the scales of justice in favor of finding a violation of Fisher's right to a speedy trial. Therefore, we reverse the trial court's judgment and remand this case for further proceedings in accordance with this opinion.