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HOPPER, STEPHEN HENRY

PD-0703-16 10/19/2016

Appellant's

"The court of appeals erred in finding the twenty-year, post-indictment delay was not a speedy trial violation where the State intentionally declined to bring the appellant from a prison in Nebraska because, according to office policy, filing a detainer fulfilled the State's legal duty."

State's

"If the State files a detainer under the Interstate Agreement on Detainers Act, but neither the defendant nor the State exercise their option to force a trial in an expeditious manner, does the resulting period of delay count against the State for purposes of a speedy-trial analysis when the case finally goes to trial?"

Hopper was indicted in 1993 for aggravated sexual assault. Because Hopper had left Texas, Texas requested a detainer in Nebraska. When Nebraska took custody of Hopper in 1995 on new sentences, Texas issued a second detainer. Hopper was notified and informed that he could demand final disposition of the Texas charge. Hopper acknowledged receipt but did not request a trial. In 2013, Texas moved to have Hopper returned under the Interstate Agreement on Detainers (IAD). Hopper moved to dismiss on speedy trial grounds. At the hearing, the State stipulated that the rape kit, clothing items belonging to the victim and Hopper, and the original photo spread had been destroyed. The trial court denied the motion to dismiss.

Considering the Barker v. Wingo, 407 U.S. 514, factors, the court of appeals affirmed. The more than twenty-year delay, according to the court, weighs heavily against the State and thus triggers an inquiry into the other three factors. The period from 1993-1995 when Nebraska prosecuted Hopper cannot be counted against the State. However, the court rejected the State's argument that the time between 1995-2013 should not be weighed against the State because Hopper failed to demand a trial after being served with the second detainer. The court concluded that the burden of bringing someone to trial is on the State. Therefore, the State was negligent, and the reason for the delay ultimately weighs in favor of Hopper. The court then held that the third factor—the defendant's assertion of the right—did not weigh in Hopper's favor. The text of the detainer was clear, and Hopper did not testify that he did not understand it. Consequently, he sat on his rights for nearly the same amount of time as the State. Finally, Hopper failed to prove he was prejudiced by the delay. He never identified a defensive theory that he would be unable to present due to the lost evidence. The court held that the third and fourth factors in the State's favor outweigh the first and second in Hopper's favor.

Hopper claims that the court of appeals did not engage in a "sensitive balancing process." The first factor should be characterized as "heavily" weighing in his favor. Further, the court of appeals misconstrued the record. The reason for the delay was not negligence; it was due to the State's policies and procedures. Therefore, it should weigh heavily against the State. Next, no other court has interpreted an unstandardized IAD notice to satisfy constitutional requirements. The court's decision will affect every other jurisdiction subject to the IAD. But, even if the detainer creates a presumption of notice, Hopper contends it was insufficient. Finally, the Legislature, through Chapter 64 and Code Crim. Proc. art. 38.43, has recognized that the value of DNA is not undermined when the defendant does not testify.

The State contends that the period between the second detainer and Hopper's return to Texas, a period equally attributable to both parties because of the IAD, should not be counted against the State. Because Hopper had control over when he was tried, he should not be permitted to game the system.

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