author: ODOM, Judge.

text:
    Frederick Everett ZUCKERMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 62492.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 21, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary of a habitation. Punishment was assessed by the jury at ten years and appellant was put on probation.

The record is before us without a transcription of the court reporter’s notes or bills of exception. No brief was filed in the trial court in appellant’s behalf pursuant to Art.. 40.09(9), V.A.C.C.P., and there is no showing of indigency. Nevertheless, the record presents fundamental error that requires our review in the interest of justice.

It appears from the jury charge in this case that appellant was tried jointly with Michael Vincent Zuckerman, who was charged in a separate indictment. In the paragraph of the court’s charge that applied the law to the facts, the jury was instructed:

“Now, if you find from the evidence beyond a reasonable doubt that the Defendants, Frederick Everett Zuckerman and Michael Vincent Zuckerman, or either of them, in Harris County, Texas, on or about December 21, 1977, did enter a building then and there occupied, controlled and in the possession of Gloria J. McKinzie, hereinafter called owner, without the effective consent of said owner, and that such building was then and there an enclosed structure intended for use or occupation as a habitation, as that term has been defined, and that the Defendants, or either of them, at the time of such entry, if any there was, had the intent then and there to take and exercise control over the corporeal personal property therein being and owned and belonging to said owner, without the effective consent of said owner, with intent to deprive the owner of said property, then you will find the Defendants, or either of them, guilty as charged in the indictments.
“Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendants, or either of them.” (Emphasis added.)

A jury charge is fundamentally defective if it omits an essential element of the offense or authorizes conviction on a set of facts that do not constitute an offense. Cumbie v. State, Tex.Cr.App., 578 S.W.2d 732. The charge in this case authorized the jury to convict appellant for burglary even if they found that his codefendant was the guilty party. Such a verdict was authorized even without a finding that appellant was guilty as a party to the offense. In fact, the charge is completely silent on the law of parties.

It is essential to a conviction for any offense that the accused be criminally responsible either because it is committed by his own conduct or by the conduct of another for whom he is criminally responsible. See, V.T.C.A. Penal Code Secs. 6.01 and 7.01. In this case the jury was authorized to convict appellant on a finding that his co-defendant committed the offense, without a finding that appellant personally committed the offense, or that he was criminally responsible for the acts of his co-defendant. It thus authorized conviction on a set of facts that would not constitute an offense for which he was criminally responsible. As such, the jury charge is fundamentally defective.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: CLINTON, Judge.

license: Public Domain

text:
    Michael Vincent ZUCKERMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 62493.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 5, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appellant entered a plea of not guilty before a jury to the offense of burglary of a habitation. V.T.C.A. Penal Code, § 30.02. He was convicted, and the jury assessed punishment at imprisonment for 10 years (probated).

The record is before us without a transcription of the court reporter’s notes or bills of exception. No brief was filed in the trial court in appellant’s behalf pursuant to Article 40.09, § 9, V.A.C.C.P., and there is no showing of indigency. But as in the companion case of Zuckerman v. State, 591 S.W.2d 495 (Tex.Cr.App., 1979), we now find fundamental error that requires our review in the interest of justice under Article 40.09, § 13, V.A.C.C.P. The prior opinion is withdrawn.

It appears from the jury charge in this case that appellant was tried jointly with Frederick Everett Zuckerman, who was charged in a separate indictment. In the paragraph of the court’s charge that applied the law to the facts, the jury was instructed:

“Now, if you find from the evidence beyond a reasonable doubt that the Defendants, Frederick Everett Zuckerman and Michael Vincent Zuckerman, or either of them, in Harris County, Texas, on or about December 21, 1977, did enter a building then and there occupied, controlled and in the possession of Gloria J. McKinzie, hereinafter called owner, without the effective consent of said owner, and that such building was then and there an enclosed structure intended for use or occupation as a habitation, as that term has been defined, and that the Defendants, or either of them, at the time of such entry, if any there was, had the intent then and there to take and exercise control over the corporeal personal property therein being and owned and belonging to said owner, without the effective consent of said owner, with intent to deprive the owner of said property, then you will find the Defendants, or either of . them, guilty as charged in the indictments.
“Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendants, or either of them.” (Emphasis added.)

For the same reasons given in Zuckerman, supra, the jury charge is fundamentally defective.

The judgment is reversed and the cause remanded.


author: ONION, Presiding Judge.

text:
    Benny GOODMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 55693.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1979.
    Rehearing Denied Jan. 9, 1980.
    Benny Goodman, pro se.
    Henry M. Wade, Dist. Atty., Maridell J. Templeton and Ron N. Poole, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   ONION, Presiding Judge.

OPINION ON STATE’S MOTION FOR REHEARING

Our prior opinion on original submission is withdrawn.

This appeal was taken from a conviction for reckless conduct of placing another in imminent danger of serious bodily injury. V.T.C.A., Penal Code, § 22.05. The punishment was assessed by the court at confinement in the county jail for ten (10) days and at a fine of $50.00.

On original submission the panel opinion upheld appellant’s contention that the proof was insufficient, to sustain the conviction. On rehearing the State attacks the holding. Upon reconsideration, we observe an unassigned ground of error that should be considered “in the interest of justice,” Article 40.09, § 13, Y.A.C.C.P., and overrule this State’s motion for rehearing.

The record reflects that the appellant, who was not licensed to practice law, represented himself. Just how this self-representation came about is not shown by this record. At the commencement of the trial, the transcription of the court reporter’s notes reflect the following:

“THE COURT: Let the record reflect that Benny Goodman, the accused in this case, is representing himself, pro se in this matter. Furthermore, let the record reflect that Mr. Goodman is not an attorney licensed by the Supreme Court of the State of Texas to practice in the courts of ' the State of Texas. Furthermore, I have apprised the Court, (sic) prior to the trial that I must, pursuant to the Code of Criminal Procedures, Constitution of the State of Texas, hold Mr. Goodman to the same standard of conduct, same knowledge with regard to procedure on substance of law that I would hold an attorney.
“Mr. Goodman expressed to me that he understood that he must abide by the same code of conduct, is obliged to follow the same procedural subject as a licensed attorney would follow were he practicing in this Court.
“Is that correct, Mr. Goodman?
“MR. GOODMAN: Yes, sir.”

This is all we find in the record regarding self-representation. And we find no investigation into indigency. Further, the record does not reflect any warning to appellant as to the wisdom or practical consequences of the choice of appellant representing himself.

In Barbour v. State, 551 S.W.2d 371, 372-373 (Tex.Cr.App.1977), this court wrote:

“It is well settled that the Fourteenth Amendment to the United States Constitution extends to the states as a matter of due process the Sixth Amendment provision of the same Constitution that in all criminal prosecutions the accused shall enjoy the right to the assistance of counsel for his defense. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976), and cases there cited. The constitutional right is applicable to both felony [Gideon v. Wainwright, supra] and misdemeanor cases [Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)]. Article I, § 10, of the Texas Constitution also provides for the right to counsel for an accused in a criminal prosecution. These provisions have been interpreted as requiring the appointment of counsel where the accused is indigent. Gideon v. Wainwright, supra; Argersinger v. Hamlin, supra. The appointment of counsel for indigents is also required by statute. See Article 26.04, Vernon’s Ann.C.C.P.
“It is well established that an accused may waive his right to counsel. Argersinger v. Hamlin, supra; Webb v. State, supra; Ex parte Ross, 522 S.W.2d 214 (Tex.Cr.App.1975); Smith v. State, 513 S.W.2d 586 (Tex.Cr.App.1974); King v. State, 473 S.W.2d 43 (Tex.Cr.App.1971); Carey v. State, 455 S.W.2d 217 (Tex.Cr.App.1970); Sanchez v. State, 454 S.W.2d 210 (Tex.Cr.App.1970). For a waiver of counsel to be valid, it must be voluntarily and knowingly made. Parker v. State, 545 S.W.2d 151, 155 (Tex.Cr.App.1977); Ex parte Ross, supra; Webb v. State, supra; Smith v. State, supra; Lewis v. State, 501 S.W.2d 88 (Tex.Cr.App.1973).
“Waiver may be defined as ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A waiver of the right to counsel will not be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962); Ex parte Auten, 458 S.W.2d 466 (Tex.Cr.App.1970); Baker v. State, 519 S.W.2d 648 (Tex.Cr.App.1975); Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.1976). A waiver will'not be ‘lightly inferred,’ and courts will indulge every reasonable presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst, supra. And a heavy burden rests upon the prosecution to demonstrate an intelligent, voluntary and knowing waiver of constitutional rights, particularly as applied to the right to retained or appointed counsel. Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970).
“In Argersinger v. Hamlin, supra, the United States Supreme Court wrote:
“ ‘We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemean- or, or felony, unless he was represented by counsel at his trial.’
“In light of the record before us, we cannot conclude from the evidence that an affirmative waiver is reflected or that the State sustained the heavy burden which rests upon it to demonstrate such a waiver. See Parker v. State, supra.
“It has, of course, been held in this State that a trial court may not force an accused to accept an attorney if he wishes to waive representation and defend himself. Webb v. State, supra, and cases there cited. And the United States Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), held that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. The court noted as it did in Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed.2d 268 (1943), that the Sixth Amendment right to assistance of counsel implicitly embodies a ‘correlative right to dispense with a lawyer’s help.’
“In Faretta the Court wrote:
“ ‘When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forgo those relinquished benefits Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” ’ “In Webb v. State, supra, this court stated:
“ ‘When an accused makes known his desire to represent himself, the court should take care to ascertain that he fully understands the consequences of waiving his right to representation of counsel and proceeding to represent himself.’
“In the instant case, not only does the record fail to reflect a voluntary and knowing waiver of the right to counsel, retained or appointed, but the record does not reflect that the appellant was made aware of the dangers and disadvantages of self-representation so as to establish that the appellant knew what he was doing and that his choice was made with his ‘eyes open.’ ”

Like Barbour, the record in the instant case fails to show a voluntary and knowing waiver of the right to counsel, retained or appointed, and also fails to reflect appellant was made aware of the dangers and disadvantages of self-representation so as to establish that the appellant knew what he was doing and that his choice was made with his “eyes open.” For the failure of the record to so reflect, reversal is mandated. Barbour v. State, supra; Trevino v. State, 555 S.W.2d 750 (Tex.Cr.App.1977); Jordan v. State, 571 S.W.2d 883 (Tex.Cr.App.1978); Robles v. State, 577 S.W.2d 699 (Tex.Cr.App.1979).

Our panel opinion on original submission is withdrawn. The State’s Motion for Rehearing is overruled. The judgment is reversed and cause remanded.


author: PHILLIPS, Judge.

text:
    Pete Bernal SANCHEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 58128.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 28, 1979.
    Rehearing En Banc Denied Jan. 9, 1980.

      . Samuel H. Bayless, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Donald A. Clowe, Lawrence R. Linnartz, Robert Ozer, Asst. Dist. Attys., San Antonio, and Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for delivery of heroin. Appellant was indicted under the habitual offender statute. Punishment was assessed at life imprisonment.

Appellant contends that reversible error occurred at the guilt-or-innocence stage of the trial when the prosecuting attorney argued to the jury that appellant’s prior convictions were evidence of his guilt. We agree with appellant’s contention and reverse.

Appellant testified at the guilt-or-innocence phase. On cross-examination the prosecutor introduced into evidence appellant’s two prior convictions for sale of heroin and possession of narcotic paraphernalia. These two convictions were admitted solely to aid the jury in judging the credibility of appellant as a witness.

During final argument to the jury at the guilt-or-innocence stage the prosecutor made the following remarks:

Mr. Clowe [Prosecuting Attorney]: He’ll sell it [heroin] to anyone who comes along, just as he did then, and just as he’s doing now.
Mr. Bayless [Defense Attorney]: Your Honor, I object to that argument.
The Court: I’ll sustain, because the record doesn’t reflect what the “the[n]” means.
Mr. Clowe: I’m referring to his admitted prison packets here. And you can look at that. (Indicating.)
Mr. Bayless: All right, Your Honor, now I’m going to object to the remark of the prosecutor, in that it is an attempt by the prosecutor to offer evidence of his prior conviction as evidence of his guilt in this case, which violates the Court’s charge. And I will object to it on that ground. The Court: The objection will be overruled.

The prosecutor invited the jury to consider appellant’s two prior convictions for a wholly improper purpose, namely as evidence of appellant’s guilt on the delivery of heroin charge. Defense counsel objected to this argument, and the court sustained the initial objection. In spite of this objection being sustained, the prosecutor persisted in his argument, pointing to appellant’s prison packets and emphasizing to the jury that it should consider them as evidence of appellant’s guilt. By continuing his improper argument after an objection had been sustained, the prosecuting attorney compounded the prejudice to appellant. Immediately after the prosecutor’s second improper comment, defense counsel objected again and apprised the court of the precise nature of his objection. This objection was overruled. In its charge the court instructed the jury that appellant’s prior convictions were admitted solely on the issue of appellant’s credibility as a witness.

It is well established that when evidence of prior convictions is admitted solely on the issue of the defendant’s credibility as a witness, the State may not argue to the jury that the prior convictions are evidence of the defendant’s guilt. Martini v. State, 199 S.W.2d 784 (Tex.Crim.App.1947); Smith v. State, 29 S.W.2d 350 (Tex.Crim.App.1930); Jarrott v. State, 257 S.W. 256 (Tex.Crim.App.1924). Such argument constitutes reversible error. Smith v. State, supra; Jarrott v. State, supra. A limiting instruction in the court’s charge is insufficient to cure this error. Smith v. State, supra; Jarrott v. State, supra.

In Smith the prosecutor argued that the defendant’s prior conviction for a liquor law violation was evidence of his guilt on the charge of unlawful possession of a still for the manufacture of intoxicating liquor. The trial court instructed the jury to disregard this argument and also gave a limiting instruction in its charge to the jury. The improper argument nevertheless was held to be reversible error.

In United States v. Garber, 471 F.2d 212 (5th Cir.1972), the prosecuting attorney argued to the jury that the defendant’s prior convictions for the same crime showed a disposition to commit the offense charged. The court held that the error was so fundamental as to require reversal even though defense counsel failed to object.

Relying on Phillips v. State, 450 S.W.2d 650 (Tex.Crim.App.1970), the State contends that when evidence of prior convictions is admissible to impeach the defendant as a witness, argument referring to these convictions is proper. Such argument is proper only insofar as it is limited to the issue of the defendant’s credibility as a witness. We find nothing in Phillips, supra, inconsistent with the authorities cited above.

The judgment is reversed and the cause remanded.


author: W. C. DAVIS, Judge.

text:
    Ex parte Jack Warner BEECH, Appellant.
    No. 60175.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 28, 1979.
    Rehearing En Banc Denied Jan. 16, 1980.

      Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W. C. DAVIS, Judge.

This is an application for post-conviction writ of habeas corpus.

Petitioner was convicted in Justice Court of Wood County of the misdemeanor offense of speeding on June 17,1970. Punishment was assessed at a $22.00 fine. Thereafter, petitioner filed an appeal bond, in order to bring an appeal, which would be a trial de novo, in the County Criminal Court of Wood County. The record reflects that trial was set April 26, 1971, July 19, 1971, September 27, 1971, and October 15, 1974.

Trial de novo eventually commenced in County Court on July 13, 1978. Prior to trial, petitioner filed a motion to dismiss, alleging that he had been denied a speedy trial in the cause. The trial court denied the motion and found appellant guilty of the offense on this date.

Petitioner filed a writ of habeas corpus in the trial court on November 15, 1978, alleging that he was restrained by virtue of an arrest warrant issued by the County Court of Wood County, by virtue of the judgment and sentence wherein he was found guilty of the offense of speeding. He also alleged that he had been denied his right to a speedy trial in that cause.

The trial court found that petitioner was so restrained in his liberty, and further found that:

“Applicant wholly failed to pay fine and court cost as adjudged by the Court; that Applicant wholly failed to apply for a new trial within the ten (10) day period prescribed by law; that Applicant wholly failed to appeal such conviction within the thirty (30) day period prescribed by law; that Applicant by virtue of evidence presented by the State of Texas at the • time of said trial, waived his right tó a speedy trial.”

The trial judge recommended the denial of the writ, finding that “by virtue of evidence presented by the State of Texas at the time of trial, [petitioner] waived his right to a speedy trial.”

The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution as applied through the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The same right is assured by Article I, Section 10 of the Texas Constitution and Article 1.05, Vernon’s Ann.C.C.P.

The determination of whether an accused has been denied the right to a speedy trial is to be made by use of a “balancing test” which was set out in Barker v. Wingo, supra. In each individual case, the Court requires consideration of the following factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice to the defendant resulting from the delay. See also, Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973); Grayless v. State, 567 S.W.2d 216 (Tex.Cr.App.1978); Carney v. State, 573 S.W.2d 24 (Tex.Cr.App.1978); Turner v. State, 545 S.W.2d 133 (Tex.Cr.App.1976).

The length of the delay in the instant case merits analysis. See Barker v. Wingo, supra. Petitioner received the speeding ticket on June 13, 1970. Judgment was entered in the Justice Court on June 17, 1970, some five days later. Appeal bond was executed in the Justice Court on June 22, 1970, and filed in the County Court on August 20, 1970. It is at this point, when petitioner asserted his right and request for a trial de novo, that we begin our consideration of the length of delay. The delay between the date when the appeal bond was filed in County Court and the date of the second trial was a little less than eight years.

The record next reflects that petitioner requested the County Attorney to pass the case on April 26, 1971, some eight months later. Thereafter, the record reflects setting dates of July 19, 1971, September 27, 1971, and again on October 15, 1974, over four years after the appeal bond was filed. There is no indication in the record why trial was re-set the last three times after petitioner was notified of the setting date. There is nothing else in the record to reflect what transpired from this time until June 13, 1978, when petitioner received his trial de novo and was again found guilty.

The reason for the delay in this case is not well developed in the record. Thus, it is unclear whether the delay is the responsibility of the prosecution, or of the petitioner, or of both.

In our examination of the record, we deem it significant that petitioner never asserted his right to a speedy trial during this period of time. The record reflects that petitioner is an attorney, who, it appears, partially represented himself in some aspects of this case. Thus, we cannot say that petitioner was unaware of the status of his pending case. Indeed, it may well be that petitioner’s failure to prosecute his right to a trial de novo in County Court was a knowing and deliberate decision, motivated by a strategical tactic to maximize the chance that his case would never come to trial. Further support for this may be found in petitioner’s own motion to dismiss, in which he stated that his own law office “routinely discards traffic files that have not been tried after four years.” While not relevant to our analysis of the delay between the first and second trials, we note that after conviction in the County Court petitioner did not file a motion for new trial nor did he give notice of appeal in that cause, nor did he pay his fine.

We next examine the prejudice to petitioner as a result of the delay. In general, there are three interests to be considered in determining prejudice to the defendant: prevention of oppressive pretrial incarceration; minimizing the anxiety and concern of the accused, and limiting the possibility that the defense will be impaired. Barker v. Wingo, supra; Carney v. State, supra; Turner v. State, supra. Petitioner was certainly not incarcerated during the period of time between his filing his request for trial de novo in County Court and his de novo trial. Any anxiety and concern which may have resulted from the delay must be considered in light of the fact that the prosecution was based upon a speeding ticket which resulted in a $22.00 fine at his first trial. We do not deem this a particularly serious or grave offense.

Petitioner does contend that the delay impaired his defense, resulting in prejudice to him. He asserts in his petition:

“The passage of time has caused Defendant and his witnesses to have less recall of the transaction alleged to have occurred on the date charged in the complaint; Defendant has discarded his file on this matter, as Defendant’s law office routinely discards traffic files that have not been tried after four years. Defendant therefore, does not have adequate information regarding the transaction to properly try this cause.”

He also contended that he would not be able to properly cross-examine witnesses against him.

While it is reasonable to assume that petitioner was somewhat prejudiced by the delay, it appears that one reason therefore was because he, himself, discarded his file on the case. Further, the fact that the trial which petitioner sought was a trial de novo merits some consideration. Petitioner had already had one trial on the offense and had had an opportunity to present his evidence and observe the prosecution present theirs. This fact, plus the fact that petitioner discarded his file on his own case, may be considered in mitigation of any prejudice he suffered as a result of the lapse of time.

In applying the balancing test of Barker v. Wingo, we consider: there was a substantial delay between the appeal filed in County Court and the trial de novo; however, the prosecution set the cause for trial several times during this period; the reason why trial was not had on these dates does not appear in the record; petitioner is an attorney, well aware of the nature of legal proceedings; petitioner never asserted his right to a speedy trial during this period of time; the decision not to urge his right to a speedy trial de novo may have been a deliberate decision, calculated to result m a dismissal of the cause; petitioner’s own action in discarding his file on the cause, and the fact that petitioner had already had a trial in the cause may be considered in mitigation of any prejudice he suffered as a result of the delay. In applying the balancing test of Barker v. Wingo, we conclude that petitioner has failed to show that he was denied his right to a speedy trial.

The relief sought is denied.

ROBERTS and PHILLIPS, JJ., concur in the result.