I am responding to a PDR where the lower appellate court reversed the trial court's dismissal of my case on speedy trial grounds. The defendant's attorney made assertions of fact that were not supported by the record at the hearing on his motion to dismiss. I filed a supplemental brief to point out this misrepresentation. Althought the appellate court reversed the trial court, in its opinion it accepted as fact the misrepresentation by the Defendant's attorney. How/should I raise this in my reply brief on the defendant's PDR?

It's hard to provide any helpful advice without knowing more about your facts and about the coa holdings. That said, my first piece of advice is to make sure you don't need to do a CROSS-PDR (cross-pet due 10 days after appellant's pet. is filed in the court of appeals).

I'm guessing that the assertions of fact that you are dealing w/ were made in the trial court. If so, I'm arguing a similar case to yours (we won the speedy trial issue at trial, but lost on appeal to FW court (unpublished)) before the CCA on Sept 11 (Dragoo v. State, Case no. 1733-01).

Those unobjected-to assertions of fact in the trial court are a major drag to deal with. My guy claimed that years earlier, an un-named prosecutor had "assured" him that his 2nd case would be dismissed once his 1st case was affirmed on appeal.

Thanks David. The main issue was that a witness for the defendant had died the week before trial. On the Friday before trial I moved for a continuance which was joined by the Defense. The trial court denied the motion. We were set # 1 for the following Monday. That day the Defense filed their speedy trial motion and the court heard it. Only in his appellate brief did the defense claim that they did not know about the death of the witness at the time of the motion for continuance, but only learned about it that weekend. There is no evidence of this in the record. The appellate court ruled that the Defendant suffered only minimal error because of other witnesses available to the defense to give the same evidence. The opinion appears at 76 sw3d 541.

I read (skimmed) your case. I guess the sentence your worried about is: "Moreover, it was not until the pre-trial hearing that [A]ppelle's counsel me [A]ppellee and discovered a material character witness . . . had died."
First, it doesn't look to me like a cross-petition is called for. Second, I think the coa is just listing (albeit clumsily)the Appellee's contentions -- not finding these matters to be factually true. Second, you've got a guy who failed to file a motion for speedy trial for over three years so it seems unlikely to me that tthe cca will interested.
I think if it were me I'd probably do full PDR reply (instead of my normal two page letter) and I'd drop a footnote that if the coa meant to make a factual finding that Appellee didn't know about the death of his character witness when he agreed to the continuance, there was no evidence to support such a conclusion.
Be sure and cite Arclia, 834 S.W.2d. 357 tca 1992) overruled on other grounds, 955 S.W.2d 85, for the proposition that second-guessing a coa factbound determination is not a matter worthy of discretionary review.

Justice Anderson says a rendition of the facts giving rise to the indictment is unnecessary (as though one could be given) and the Chief Justice says "we know nothing about the circumstances, seriousness, or nature of the offenses alleged in this case". He adds that the trial judge must have had "access to more information about the alleged offenses than appears in our record". How could the trial judge know more than was alleged in the indictment (which presumably was in the appellate record)? Plus, it seems clear enough that the underlying facts are irrelevant to the legal issue.

The opinion is equally scary in the assertion that the State "was at least negligent in its efforts to locate appellee". A guy jumps bail (since he is presumed to receive notice of the setting when mailed to his bond address) and the delay is then charged to the State, even though no court appearances are even scheduled in the interim? I thought maybe the surety (Defendant's agent) played some role at this point.

Also, who was responsible for the fact that the case was apparently never set for anything between July, 1998 and February, 2001? Does the prosecution have a burden to request a court process its cases in a more timely fashion to avoid damaging the defense? It seems to me that where the defendant admits his only defense is an affirmative defense, the idea that he should make some request for a speedy trial carries even more weight in the Barker scales.

Even the CCA should recognize that no material testimony was lost from the delay in your case. Any factual statement contrary to the record can be pointed out as David says. But, I would also challenge the questionable reasoning of the COA on the points I mention. The result was favorable. But, as seems to happen with State's appeals, it is possible to make some bad law in the process.

Besides, wouldn't almost any person's memory of prior events be a little hazy on the morning of September 11, 2001? Is the State of Texas going to be blamed for that as well?

[This message was edited by Martin Peterson on 08-13-02 at .]

In arguing as he does, the defendant makes the assumption that he must be able to remember accurately what happened at the time of the offense. I have never known that to be a requirement before a defendant takes the stand.