the State of Texas v. Randy Virgil Echols ( 2021 )

Opinion filed May 28, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00209-CR
__________
THE STATE OF TEXAS, Appellant
V.
RANDY VIRGIL ECHOLS, Appellee
On Appeal from the 220th District Court
Comanche County, Texas
Trial Court Cause No. CR04341
MEMORANDUM OPINION
The State reindicted Appellee, Randy Virgil Echols, on two counts of
aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021 (West
2019). Appellee moved to dismiss the indictment, contending that his speedy-trial
rights were violated. The trial court agreed and dismissed the indictment. In two
issues on appeal, the State contends that (1) Appellee’s right to a speedy trial was
not violated and (2) Appellee’s due process rights were not violated. We reverse
and remand.
Background Facts
On September 4, 2011, Appellee was arrested for aggravated sexual assault of
a child. The offenses were alleged to have occurred on or about the same day. On
October 27, 2011, Appellee was indicted on three counts of aggravated sexual
assault of a child and one count of indecency with a child. Appellee’s trial began on
May 21, 2012. On May 24, 2012, the jury found Appellee not guilty of one count
of aggravated sexual assault of a child and guilty of indecency with a child, and the
final two counts of aggravated sexual assault of a child resulted in a hung jury. The
trial court declared a mistrial for the two counts of aggravated sexual assault that had
resulted in a hung jury. Appellee was sentenced to twenty years’ imprisonment upon
being convicted of indecency with a child.
Appellee appealed his conviction of indecency with a child to this court, and
we issued mandate affirming the conviction on March 6, 2014. See Echols v. State,
No. 11-12-00149-CR, 2013 WL 9674604 (Tex. App.—Eastland Aug. 22, 2013, pet.
ref’d) (mem. op., not designated for publication). Appellee’s petition for
discretionary review was refused by the Court of Criminal Appeals on November 27,
2013. The State dismissed the two remaining indictments on October 30, 2015. On
May 3, 2017, Appellee filed a pro se Application for Writ of Habeas Corpus
contending, among other things, that his trial counsel rendered ineffective assistance
by failing to watch and utilize a video of the child-complainant’s prior statements to
a counselor containing clearly exculpatory evidence on his conviction for indecency
with a child. After the trial court subsequently issued findings of fact and
conclusions of law on the writ of habeas corpus issues, the Court of Criminal
Appeals agreed that Appellee’s trial counsel was ineffective and set aside the
conviction on October 10, 2018.
2
On July 31, 2018, a few months before the Court of Criminal Appeals set aside
the conviction, the State reindicted Appellee on the two counts of aggravated sexual
assault of a child that had resulted in a mistrial. On April 23, 2019, Appellee filed a
motion to dismiss for failure to provide a speedy trial on the current indictment.
After a hearing on the motion to dismiss, the trial court granted Appellee’s motion
and dismissed the indictment with prejudice. This appeal ensued.
Standard of Review
A trial court’s ruling on a speedy-trial claim is reviewed under a bifurcated
standard of review. Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008)
(citing Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002)). We review
a trial court’s determination of legal issues de novo, and we review factual issues
under an abuse of discretion standard. Id. A review of the individual Barker1 factors
necessarily involves fact determinations and legal conclusions, but “[t]he balancing
test as a whole . . . is a purely legal question.” Id. (alterations in original) (quoting
Zamorano, 84 S.W.3d at 648 n.19). Under an abuse of discretion standard, we view
all of the facts in the light most favorable to the trial court’s ultimate ruling. Id. We
defer not only to a trial court’s resolution of disputed facts, but we also defer to the
reasonable inferences drawn from those facts. Kelly v. State, 163 S.W.3d 722, 726
(Tex. Crim. App. 2005). The trial judge may disbelieve any evidence so long as
there is a reasonable and articulable basis for doing so. Id. at 728. This court reviews
a trial court’s ruling on a motion to dismiss for want of a speedy trial “in light of the
arguments, information, and evidence that was available to the trial court at the time
it ruled.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). Where, as
here, the trial court granted the motion to dismiss in favor of Appellee, we presume
1
Barker v. Wingo, 407 U.S. 514, 530 (1972).
3
that the trial court resolved any factual disputes or credibility determinations in favor
of Appellee. See Zamorano, 84 S.W.3d at 648.
Analysis
I. Speedy Trial
In its first issue on appeal, the State contends that the trial court erred in
dismissing the indictment on speedy-trial grounds. The Sixth Amendment to the
United States Constitution affords all criminal defendants the right to a speedy trial.
U.S. CONST. amend. VI. This right was made applicable to State criminal
prosecutions by the Due Process Clause of the Fourteenth Amendment. Klopfer v.
North Carolina, 386 U.S. 213, 222–23 (1967).
After a person is arrested or charged, a speedy-trial claim is triggered by a
passage of time that is unreasonable enough under the circumstances to be
“presumptively prejudicial.” Barker v. Wingo, 407 U.S. 514, 530 (1972). Post-
accusation delay that approaches one year “marks the point at which courts deem
the delay unreasonable enough to trigger the Barker enquiry.” Doggett v. United
States, 505 U.S. 647, 652 n.1 (1992). To determine whether an accused has been
denied his right to a speedy trial, courts balance the conduct of both the prosecution
and the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); Dragoo, 96 S.W.3d
at 313. We apply the Barker factors, evaluating (1) the length of the delay, (2) the
reason for the delay, (3) whether the defendant asserted his speedy-trial right, and
(4) the prejudice caused by the delay. Barker, 407 U.S. at 530. Courts analyze a
“speedy-trial claim by first weighing the strength of each of the Barker factors and
then balancing their relative weights in light of ‘the conduct of both the prosecution
and the defendant.’” Cantu, 253 S.W.3d at 281 (quoting Zamorano, 84 S.W.3d at
648); see Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim. App. 2017). No single
factor is necessary or sufficient to establish a violation of the right to a speedy trial.
Cantu, 253 S.W.3d at 281; Dragoo, 96 S.W.3d at 313.
4
“While the State has the burden of justifying the length of delay, the defendant
has the burden of proving the assertion of the right and showing prejudice.” Cantu,
253 S.W.3d at 280 (citing Barker, 407 U.S. at 531); see Ex parte McKenzie, 491
S.W.2d 122, 123 (Tex. Crim. App. 1973)). “The defendant’s burden of proof on the
latter two factors ‘varies inversely’ with the State’s degree of culpability for the
delay.” Cantu, 253 S.W.3d at 280 (quoting Robinson v. Whitley, 2 F.3d 562, 570
(5th Cir. 1993)). “Thus, the greater the State’s bad faith or official negligence and
the longer its actions delay a trial, the less a defendant must show actual prejudice
or prove diligence in asserting his right to a speedy trial.” Id. at 280–81.
The only possible remedy for a violation of the right to a speedy trial is to
dismiss the prosecution. Strunk v. United States, 412 U.S. 434, 440 (1973).
“Because dismissal of the charges is a radical remedy, a wooden application of the
Barker factors would infringe upon ‘the societal interest in trying people accused of
crime, rather than granting them immunization because of legal error.’” Cantu, 253
S.W.3d at 281 (quoting United States v. Ewell, 383 U.S. 116, 121 (1966)). In sum,
the Barker factors have no “talismanic qualities,” and we must therefore analyze the
balancing test “with common sense and sensitivity to ensure that charges are
dismissed only when the evidence shows that a defendant’s actual and asserted
interest in a speedy trial has been infringed.” Id. at 281; see Zamorano, 84 S.W.3d
at 648.
A. Length of the Delay
“The length of delay is a double inquiry: A court must consider whether the
delay is sufficiently long to even trigger a further analysis under the Barker factors,
and if it is, then the court must consider to what extent it stretches beyond this
triggering length.” Hopper, 520 S.W.3d at 924. The delay is measured from the
time the defendant is arrested or formally accused. Marion, 404 U.S. at 313; Shaw v.
State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). Although the Supreme Court
5
has generally held that a delay approaching one year is sufficient to trigger a speedy-
trial claim, the precise length needed is dependent upon the particular facts of the
case. See Doggett, 505 U.S. at 652 n.1. For example, “the delay that can be tolerated
for an ordinary street crime is considerably less than for a serious, complex
conspiracy charge.” Barker, 407 U.S. at 531. Additionally, “the presumption that
pretrial delay has prejudiced the accused intensifies over time.” Doggett, 505 U.S.
at 652. Thus, the longer the delay beyond the triggering length, the more prejudicial
that delay is to the defendant. Zamorano, 84 S.W.3d at 649. In calculating the length
of delay where, as here, there is no evidence that the State dismissed the indictments
in bad faith and the defendant is not subject to actual restraints on his liberty, the
time period between dismissal of the indictments and the subsequent reindictment is
not considered in a speedy-trial analysis. See United States v. Loud Hawk, 474 U.S.
302, 310–11 (1986); United States v. MacDonald, 456 U.S. 1, 7 (1982); Deeb v.
State, 815 S.W.2d 692, 705 (Tex. Crim. App. 1991) (citing MacDonald, 456 U.S.
1).
Here, the parties dispute the precise length of the delay and how the length of
the delay should be calculated. The State contends that the speedy-trial clock in this
case should begin at the time of mistrial, not arrest, because Appellee was afforded
a speedy trial at the time and by way of the first criminal offense brought to trial.
We disagree. Although case law in Texas is far from consistent in setting forth the
beginning and end dates for calculating the length of delay, we agree with our sister
court’s holding in State v. Davis that, “[i]n the interest of justice, we [should]
consider[] the length of the delay using the greatest possible time span, running from
[the defendant’s] indictment to the dismissal of his indictment.” State v. Davis, 549
S.W.3d 688, 698 n.1 (Tex. App.—Austin 2017, no pet.). But see State v. Munoz,
991 S.W.2d 818, 822 (Tex. Crim. App. 1999) (calculating the delay for a speedy-
trial claim from the date of arrest to the date of the defendant’s speedy-trial hearing).
6
Under similar facts in Shaw v. State, the Texas Court of Criminal Appeals calculated
the length of the delay beginning from the date of the arrest, not the date of mistrial.
Shaw, 117 S.W.3d at 886–89. Accordingly, we follow Shaw’s precedent and
calculate the general length of the delay from the time of Appellee’s arrest,
September 4, 2011. See id. However, this does not end our analysis of the first
factor.
There is no evidence that the State dismissed the charges in bad faith, and
Appellee was incarcerated during the delay on his indecency conviction only, not on
the current indictment. Accordingly, we do not include in our calculations the time
between dismissal of the indictment and reindictment. See MacDonald, 456 U.S. at
10 n.12; United States v. Duran-Gomez, 984 F.3d 366, 374 n.7 (5th Cir. 2020) (citing
Cowart v. Hargett, 16 F.3d 642, 645–46 (5th Cir. 1994)). Indeed, Appellee appears
to concede that the time between dismissal and reindictment is not included in our
calculations under these facts. Therefore, the total length of the delay was
approximately sixty months: September 4, 2011 (arrest) to October 30, 2015 (State’s
dismissal), and July 31, 2018 (reindictment) to June 14, 2019 (order granting
dismissal). This greatly exceeds the general length needed to trigger an analysis of
the remaining factors, and it weighs heavily in favor of Appellee.
While the delay of trial in the instant case appears lengthy, these factors must
still be weighed and balanced together under Barker. Cantu, 253 S.W.3d at 281.
The reasons for delay will be reviewed in context with the other factors, including
the lack of assertion by Appellee to his right to speedy trial and the extent to which
Appellee suffered prejudice to his ability to now defend himself against two counts
of aggravated sexual assault of a child as a result of the delay. See Barker, 407 U.S.
at 530.
7
B. Reasons for the Delay
Under Barker, “different weights should be assigned to different reasons.”
Munoz, 991 S.W.2d at 822 (quoting Barker, 407 U.S. at 531). Deliberate attempts
to delay the trial should be weighed heavily against the State, while a valid reason
for the delay should not be weighed against the State at all. Id. A more neutral
reason, such as official negligence or overcrowded courts, is afforded less weight
but, nevertheless, is weighed against the State. Barker, 407 U.S. at 531. The State
has the burden to provide a reason that would excuse the delay, and “in light of a
silent record or one containing reasons insufficient to excuse the delay, it must be
presumed that no valid reason for the delay existed.” Turner v. State, 545 S.W.2d
133, 137–38 (Tex. Crim. App. 1976). Further, delay caused by the defendant or
defendant’s counsel is generally weighed heavily against the defendant. See Munoz,
991 S.W.2d at 822.
Here, the State offered numerous justifications for the delay. First, the State
asserts that the approximately eight-month period of time between Appellee’s arrest
and first trial was justified because the State was entitled to a reasonable time to
prepare for trial. In general, the State is entitled to a reasonable time to prepare for
trial, and this time will not count against the State. Shaw, 117 S.W.3d at 889–90. In
other cases involving an aggravated sexual assault of a child, Texas courts have
found anywhere from three to six months to be a reasonable amount of time to
prepare for trial. See id. (holding a three-month delay in order to prepare for trial a
reasonable length of time); State v. Vasquez, No. 08-16-00089-CR, 2018 WL
4178462, at *6 (Tex. App.—El Paso Aug. 31, 2018, no pet.) (not designated for
publication) (holding six months to be a reasonable time to prepare for a case
involving sexual assault of a child); De Los Santos v. State, No. 05-08-01692-CR,
2010 WL 1744618, at *3 (Tex. App.—Dallas May 3, 2010, no pet.) (mem. op., not
designated for publication) (holding the same as Vasquez). Although eight months
8
may exceed the length typically allowed by courts, Appellee expressly concedes
that, except for one month of the time before the first trial, “trial commenced in a
reasonable length of time.” Accordingly, we conclude that approximately seven
months of the time attributable to the State’s preparation for trial shall not be held
against the State under these facts.
Although the State further asserts that it was allowed a reasonable amount of
time before the second trial to prepare for retrial, the State fails to cite—and this
court fails to find—any authority to support this assertion. See Shaw, 117 S.W.3d
at 889–90 (noting that the State was permitted a reasonable time to prepare for the
first trial but not discussing the possibility of time to prepare for the second trial).
We conclude that the trial court could have reasonably determined that the State did
not need additional time to prepare for a second trial where the State did not provide
circumstances demonstrating the need for such additional time.
Another reason for delay that will generally count against the defendant, as
the State points out, is the time a defendant spends appealing his conviction. Davis,
549 S.W.3d at 700. This is because the State is wholly unable to retry him on the
specific offense that is being challenged on appeal; doing so would violate the
Constitution’s Double Jeopardy Clause. See id. at 712–13 (Goodwin, J., concurring)
(citing Soffar v. State, No. AP-75,363, 2009 WL 3839012, at *38–39 (Tex. Crim.
App. Nov. 18, 2009) (not designated for publication)). In this case, however,
Appellee only appealed his indecency conviction. The State could have retried
Appellee on the two counts of aggravated sexual assault during the appeal of
Appellee’s indecency conviction without violating the Double Jeopardy Clause.
Therefore, the State failed to prove its delay was justified under this theory.
The State also asserts that the time between mistrial and reindictment should
not count against the State because a valid reason for their delay was to wait until
Appellee’s appellate proceedings concluded to determine whether a trial would be
9
necessary at all. At the hearing for Appellee’s motion to dismiss for failure to
provide a speedy trial, the former district attorney testified for the State, stating that,
when a defendant was convicted of some charges while others were pending, it was
always their office’s policy to wait and see if the conviction was affirmed before
dismissing the pending indictments. The State contends that this justification
excuses the delay from the date of mistrial to the date this court issued a mandate on
Appellee’s indecency conviction. The State uses the same reason to justify the delay
from the issuance of mandate to the date of dismissal of the two remaining
indictments to wait and see whether Appellee would seek habeas corpus relief.
As support for its contention, the State cites to Turner v. Estelle, which held
that “it is also valid for the state to wait until it is clear that the expense,
inconvenience to witnesses and jurors, burden on prosecutorial and judicial
resources, and vexation to the defendant that a trial inevitably causes will in fact be
necessary.” 515 F.2d 853, 857 (5th Cir. 1975). However, Turner is readily
distinguishable; Turner only facially stands for the proposition that a state may
“justifiably [choose] not to expend scarce judicial and prosecutorial resources in
trying a defendant facing a death sentence, the execution of which obviously would
have eliminated the need for any trial at all.” Id. at 856 (emphasis added). In
contrast, Appellee here did not appeal a death sentence following his conviction.
The outcome of Appellee’s trial and appeal for his indecency conviction did not
inherently eliminate the necessity for prosecution of the two remaining charges.
Therefore, Turner is not controlling under these facts.
The State also cites to Easley v. State as support in its brief and in its response
to Appellee’s motion to dismiss. 564 S.W.2d 742, 745 (Tex. Crim. App. 1978),
abrogated on other grounds by Henson v. State, 407 S.W.3d 764 (Tex. Crim. App.
2013). There, a defendant was separately tried for the murder of two individuals.
See id. In analyzing a speedy-trial claim, the Texas Court of Criminal Appeals held,
10
“That the appellant was being prosecuted on other charges constitutes a valid reason
for the delay in bringing him to trial.” Id. Assuming this rule is applicable here, the
State nevertheless failed to establish that its prosecution of other offenses caused or
contributed to the delay. See McIntosh v. State, 307 S.W.3d 360, 367–68 (Tex.
App.—San Antonio 2009, pet. ref’d). During the hearing on the motion to dismiss,
the State presented testimony from the former district attorney in the first trial, who
stated that it had always been their office’s policy “that if there were pending cases
and we had a conviction that we would wait to see what the outcome of the appeal
was.” This testimony was consistent with the reason stated on the motions to
dismiss, which contained checked boxes that indicated the charges were being
dismissed because the defendant was convicted and sentenced in another case.
If the State truly delayed retrial because it was waiting on the outcome of the
indecency appeal, the State could have dismissed the indictments as early as
November 27, 2013 (the date the Texas Court of Criminal Appeals refused
Appellee’s petition for discretionary review) or, in the alternative, March 6, 2014
(the date this court issued mandate affirming the conviction of indecency with a
child). Nevertheless, the State waited until October 30, 2015, to dismiss the
indictments. The State contends that the delay after the issuance of mandate was
justified by waiting to see if Appellee would seek habeas relief. Viewed in the light
most favorable to the verdict, however, we conclude that the trial court could have
reasonably disbelieved this justification and instead attributed this portion of the
delay to negligence by the State. Therefore, the State failed to show that the portion
of delay between mistrial and dismissal was justified.
The State next asserts that part of the delay before the second trial is
attributable to Appellee because he requested new counsel a little over one month
before the second trial was set to begin. The State correctly notes that delays caused
by a defendant’s voluntary and requested change in trial counsel generally weighs
11
against the defendant. See Harper v. State, 567 S.W.3d 450, 460 (Tex. App.—Fort
Worth 2019, no pet.); Porter v. State, 540 S.W.3d 178, 182 (Tex. App.—Houston
[1st Dist.] 2017, pet. ref’d). The State must affirmatively establish that the change
in counsel caused the delay. See McIntosh, 307 S.W.3d at 368. On March 19, 2019,
Appellee’s second appointed trial counsel filed a motion to withdraw as counsel
because Appellee expressly desired to have his counsel discharged and replaced.
Additionally, the motion stated that Appellee and his counsel could not communicate
in a manner conducive to good attorney–client communication. The trial court
granted the motion and, in its order appointing new counsel, reset the date of trial
from May 6, 2019, to June 24, 2019. Accordingly, approximately one and one-half
months of the delay is clearly attributable to Appellee and shall weigh against him,
not the State.
At the opposite end of this factor, Appellee contends that the trial court could
have reasonably inferred that the prosecution acted in bad faith and failed to
promptly proceed against Appellee to gain a tactical advantage over him and, thus,
that this factor should weigh heavily against the State. Appellee asserts that the State
deliberately delayed retrying the two charges in question from the date of mistrial to
the date the State dismissed the two indictments in order to prevent the exculpatory
evidence from coming to light, which would have been harmful to the State’s only
conviction against Appellee. We disagree; the trial court could not have reasonably
concluded that the State acted in bad faith in delaying retrial.
First, there is nothing in the record to support an inference that the State
intentionally kept exculpatory evidence from discovery because the record clearly
establishes that the exculpatory evidence was available from the beginning of the
first trial for the defense counsel to review. From the trial court’s own findings of
fact and conclusions of law, which it issued on remand from Appellee’s successful
writ of habeas corpus, it found “[t]hat exculpatory/impeaching evidence was
12
available to the defense but was never presented to the jury.” Although Appellee
contends that merely having the evidence “available” to the defense under the State’s
open-file policy was insufficient disclosure, we are not currently tasked with
reviewing a Brady violation because that issue is not before us. See generally
Brady v. Maryland, 373 U.S. 83 (1963). Regardless of whether the exculpatory
evidence should have been affirmatively given to defense counsel as opposed to
merely being made available, the record plainly indicates that the State did not keep
the video from the defense counsel.
Additionally, Appellee fails to adequately explain how a prompter retrial
would have brought the exculpatory evidence to light sooner. In its findings of fact
and conclusions of law in the habeas proceeding, the trial court expressly stated that
“[t]he jury appears to have convicted [Appellee] of the only offense for which there
was clearly exculpatory evidence” (emphasis added). Patently implicit in this
holding is the conclusion that the evidence did not exculpate Appellee of the two
current counts. Even assuming the exculpatory evidence came to light for the first
time during the habeas corpus proceedings, the only reasonable inference that could
be drawn from this is that the exculpatory evidence would have come to light sooner
had Appellee initiated habeas corpus proceedings more promptly, regardless of
whether the State initiated proceedings sooner on two counts unaffected by the
exculpatory evidence.
Moreover, Appellee failed to show that the State intentionally attempted to
gain a tactical advantage over the defendant in the case currently at issue. While
deliberate attempts to delay the case in order to gain a tactical advantage will weigh
heavily against the State, the State’s purpose must be to gain a tactical advantage in
that case. See MacDonald, 456 U.S. at 10 n.12; Munoz, 991 S.W.2d at 822. That
exculpatory evidence would have acquitted Appellee of indecency with a child
earlier is entirely irrelevant to a determination of whether the State attempted to
13
hamper the defense or gain a tactical advantage in its prosecution of the two counts
of aggravated sexual assault of a child. Appellee does not contend that the
exculpatory evidence would have been harmful to the indictment at issue. To the
contrary, as we stated above, the record tends to establish the opposite inference:
The evidence only exculpates Appellee of the indecency conviction. For these
reasons, the record does not support an inference that the State intentionally delayed
retrial of the current indictment in order to gain a tactical advantage in the current
case against Appellee.
C. Defendant’s Assertion of His Right
A defendant’s assertion of his speedy-trial right is entitled to strong
evidentiary weight in determining whether the defendant was deprived of that right.
Barker, 407 U.S. at 531–32. It is well settled that the State bears the burden to
promptly bring the defendant to trial, but the accused nevertheless has the burden of
proving that he asserted his right to a speedy trial. Munoz, 991 S.W.2d at 825; Davis,
549 S.W.3d at 704; Barringer v. State, 399 S.W.3d 593, 599 (Tex. App.—Eastland
2013, no pet.). A speedy-trial demand should be an unambiguous assertion clear
enough to convey to the trial court or the State that the defendant is asserting his
right to a speedy trial. Davis, 549 S.W.3d at 704 (citing Henson v. State, 407 S.W.3d
764, 769 (Tex. Crim. App. 2013)); Bailey v. State, 885 S.W.2d 193, 201 (Tex.
App.—Dallas 1994, pet. ref’d). Although it does not necessarily constitute a waiver,
failing to assert the right indicates a lack of desire for a speedy trial. Harris v. State,
827 S.W.2d 949, 957 (Tex. Crim. App. 1992). It also indicates a lack of prejudice.
Dragoo, 96 S.W.3d at 314. As the delay becomes longer, a defendant who wishes
to have a speedy trial is more likely to take some action to obtain it. Id. “Thus[,]
inaction weighs more heavily against a violation the longer the delay becomes.” Id.(quoting George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice
and Procedure § 23.40 (2d ed. 2001)).
14
Furthermore, “[t]he constitutional right is that of a speedy trial, not dismissal
of the charges.” Cantu, 253 S.W.3d at 281. A request that the court dismiss the
charges for a speedy-trial violation, rather than a request for a prompt trial setting,
attenuates the strength of a speedy-trial claim because it creates an inference that the
defendant wants no trial—rather than a speedy trial. See id.; Stiles v. State, 596
S.W.3d 361, 367–68 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d). A
defendant who moves for a dismissal before requesting a speedy trial must provide
cogent reasons for this failure. Cantu, 253 S.W.3d at 283. “In some cases, defense
counsel may legitimately feel that a long delay has caused a client so much prejudice
that dismissal is warranted, even if the State is belatedly ready to move promptly.”
Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983). Each case must turn
on its own facts. Id.Based on the record, nothing for which Appellee moved or that he filed prior
to his April 23, 2019 motion expressly reflects a valid, unambiguous assertion of his
right to a speedy trial. Notwithstanding the considerations discussed below,
Appellee did not validly assert his right to a speedy trial until April 23, 2019—
approximately two months before trial was set to occur—when he filed through
counsel a motion to dismiss for failure to provide a speedy trial. Notably, Appellee’s
assertion first came in the form of a motion to dismiss instead of a motion for speedy
trial. This indicates that Appellee did not want a speedy trial; he wanted no trial.
See Cantu, 253 S.W.3d at 281; Stiles, 596 S.W.3d at 367–68. Although there are
circumstances in which filing a motion to dismiss before requesting a speedy trial is
warranted, such circumstances are not present under these facts. As we explain in
our analysis of the fourth factor, there is nothing in the record to indicate that
Appellee was prejudiced in any substantive manner, if at all. Even viewed in the
light most favorable to the trial court’s ruling, neither the defense counsel nor the
15
trial court could have reasonably inferred that filing a motion to dismiss before
moving for a speedy trial was warranted under these facts.
Appellee contends that he first asserted his right to a speedy trial on March 22,
2012, by filing his Motion to Quash Consolidation Notice and Demand for Election.
In this motion, however, Appellee merely prayed for the trial court to “require the
State to elect the case to be tried beginning March 26, 2012.” Appellee seizes upon
the State’s admission that Appellee, “at least indirectly,” opposed the State’s motion
for continuance under this motion to quash and elect. Thus, Appellee contends that
he asserted a right to a speedy trial through his conduct. We disagree. Appellee’s
motion to quash and demand for election could not have been reasonably interpreted
as an assertion of his right to a speedy trial.
We reject the assumption that Appellee’s motion to quash and demand for
election constituted an “indirect opposition” to the State’s motion for continuance.
Appellee filed his motion to quash and demand for election four days before the
State filed its motion for continuance; therefore, Appellee’s motion to quash and
demand for election could not have been made in opposition to the continuance.
Moreover, the trial court could not reasonably interpret Appellee’s demand for
election as an unambiguous assertion of his right to a speedy trial. The above
language on which Appellee relies establishes only a demand “to elect which of the
four (4) cases [Appellee] will actually go to trial on March 26, 2012,” and nothing
more. At best, this language is more akin to a pro forma request to begin trial, which
the Texas Court of Criminal Appeals has held does not constitute an assertion of the
right to a speedy trial. See Munoz, 991 S.W.2d at 826. Even viewed in the light
most favorable to the trial court’s ruling, this motion does not reasonably or
unambiguously assert a request for a speedy trial.
Appellee further asserts that his pro se motion to dismiss constitutes evidence
of an earlier assertion of his right to a speedy trial. At some point between
16
August 29, 2018, and September 24, 2018, Appellee attempted to file a pro se motion
to dismiss for failure to provide a speedy trial. However, Appellee was already
represented by counsel and was not entitled to file a pro se motion. See Porter, 540
S.W.3d at 183 (citing Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App.
2007)). There is nothing in the record indicating that the motion was presented to
the trial court before Appellee filed his motion to dismiss on April 23, 2019. Texas
courts are often hesitant to use such pro se motions as strong evidence of an assertion
of the speedy-trial right. See id. (“It is well settled that a pro se speedy-trial motion,
filed while the defendant has counsel and on which the trial court does not rule, is
not subject to appeal.”); Ussery v. State, 596 S.W.3d 277, 288 (Tex. App.—Houston
[1st Dist.] 2019, pet. ref’d) (holding that a pro se motion for speedy trial may
constitute some effort to invoke his right to a speedy trial, “but that invocation was
not unambiguous . . . because the pro se motions were not required to be considered
by the trial court and it is unclear if, or when, those motions or other assertions of
his right to speedy trial were presented to the trial court”). Assuming that the pro se
motion constituted some evidence of an assertion of his right to a speedy trial, our
analysis of the third factor remains largely unaffected. Appellee still waited over
fifty months—of time relevant to this speedy-trial claim—to assert his right to a
speedy trial in his pro se motion; Appellee’s pro se motion requested only dismissal
of the charges rather than a speedy trial; and Appellee did nothing to reassert his
right thereafter for another seven to eight months until his counsel filed the April 23,
2019 motion to dismiss for failure to provide a speedy trial.
Appellee also urged the trial court to “take into consideration that for the most
time after the mistrials were granted [Appellee] had no trial counsel.” While the two
indictments of aggravated sexual assault of a child were still pending after the trial
court declared a mistrial, Appellee’s lead trial counsel filed a motion to withdraw as
counsel—with the written consent of Appellee—on December 23, 2013. Appellee
17
was not appointed new counsel for the current charge until August 30, 2018. During
this period, Appellee was represented by appellate counsel while pursuing his
conviction for indecency with a child and subsequent habeas proceedings.
Excluding the time between dismissal of the charges and reindictment,
Appellee remained unrepresented on the pending indictments for approximately
twenty-three months. For the purposes of this appellate review only, we will assume
that Appellee’s counsel on appeal for the indecency charge did not constitute
representation on the pending indictments such that Appellee should have been
aware of his right to a speedy trial or how to assert it. See Texas v. Cobb, 532 U.S.
162, 172–73 (2001) (right to counsel is offense specific). In light of that assumption,
when viewed in the light most favorable to the court’s ruling, the trial court could
have reasonably inferred under the circumstances that Appellee was not at fault for
his failure to assert his right to a speedy trial during the twenty-three months he was
without counsel on the pending indictments. See Barker, 407 U.S. at 528 n.28 (in
rejecting the old demand-waiver rule, the Court noted, “[T]here are a number of
situations, such as where . . . the defendant is without counsel, in which it is unfair
to require a demand.” (quoting Am. Bar Ass’n Project on Standards for Criminal
Justice, Speedy Trial 17 (Approved Draft 1968))). Cf. Dragoo, 96 S.W.3d at 314–
15 (“Here, appellant failed to assert his speedy trial right for 3 ½ years, until just
before trial, although he was represented by counsel at all relevant times and no
question is raised as to the competency of such counsel.”). Although the period
Appellee was without counsel will not weigh against him for failing to assert his
right, neither should this period constitute a sort of “constructive assertion” of his
right to a speedy trial. Appellee did not timely assert his right to a speedy trial
regardless of whether he was represented or not. Therefore, even when indulging
the referenced assumptions favoring Appellee, we must treat the period Appellee
was unrepresented by counsel as neither weighing for or against him. We conclude
18
that the time, manner, and frequency of Appellee’s assertion of his right to a speedy
trial cause the third factor to weigh moderately, but not heavily, against Appellee.
D. Prejudice
The final factor requires an analysis of whether and to what extent the
defendant suffered prejudice as a result of the delay. Barker, 407 U.S. at 532. We
assess the weight of any prejudice in light of the interests that the right to a speedy
trial was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to
minimize the accused’s anxiety and concern; and (3) to limit the possibility that the
accused’s defense will be impaired. Id. Of these subfactors, “the most serious is the
last, because the inability of a defendant adequately to prepare his case skews the
fairness of the entire system.” Id. Here, Appellee did not allege or present any
evidence of oppressive pretrial incarceration or pretrial anxiety or concern to the trial
court. Thus, we direct our attention to the most important of these subfactors, the
extent to which the accused’s defense was impaired. See Dragoo, 96 S.W.3d at 315(holding that a particular claim of prejudice may not support an appellate court’s
determination of the prejudice factor when “appellant made no such argument to the
trial court”).
Under this subfactor, a defendant generally has the burden of showing some
prejudice but need not necessarily make a showing of actual prejudice. Balderas v.
State, 517 S.W.3d 756, 772 (Tex. Crim. App. 2016). “We assess prejudice according
to a sliding scale.” Hopper v. State, 495 S.W.3d 468, 479 (Tex. App.—Houston
[14th Dist.] 2016), aff’d, 520 S.W.3d 915 (Tex. Crim. App. 2017). “The longer the
State’s delay and the greater its official negligence, the less the defendant must show
that he was actually prejudiced.” Id.; see Cantu, 253 S.W.3d at 280–81. Affirmative
proof of particularized prejudice is not essential in every case because “excessive
delay presumptively compromises the reliability of a trial in ways that neither party
can prove or, for that matter, identify.” Doggett, 505 U.S. at 655; see Shaw, 117
19
S.W.3d at 890. On the other hand, this presumption of prejudice is extenuated by
the defendant’s acquiescence in the delay. Dragoo, 96 S.W.3d at 315; see Davis,
549 S.W.3d at 708 (“In cases with excessively lengthy delays to which the defendant
does not acquiesce, an inference of actual prejudice may arise. Such inference of
prejudice does not arise here because . . . Davis acquiesced to the trial delay . . . .”
(citations omitted)).
Here, the length of the delay was approximately sixty months, which is
excessive enough to ordinarily be considered presumptively prejudicial to
Appellee’s defense. See Dragoo, 96 S.W.3d at 315 (3 ½ year delay presumptively
prejudicial). But see United States v. Reagan, 725 F.3d 471, 487 (5th Cir. 2013)
(citing United States v. Parker, 505 F.3d 323, 328–29 (5th Cir. 2007) (holding that
delays of less than five years cannot support a presumption of prejudice based on
duration alone)). However, this presumption is extenuated by Appellee’s silent
acquiescence in the delay during the time he was represented by counsel. See
Dragoo, 96 S.W.3d at 315. The record clearly establishes that Appellee was aware
of the charges against him and nevertheless failed to validly assert his right until
approximately two months before trial was set to begin when he filed his April 23,
2019 motion to dismiss for failure to provide a speedy trial. See Shaw, 117 S.W.3d
at 890–91 (finding extenuation of prejudice where the defendant “quietly
acquiesced” to the State’s delay); Dragoo, 96 S.W.3d at 314–15 (holding the
defendant “quietly acquiesced” to the delay by failing to assert his right for three and
one-half years although represented by counsel); Munoz, 991 S.W.2d at 829; Davis,
549 S.W.3d at 708. We acknowledge, however, that Appellee could not acquiesce
to the delay during the maximum possible time period calculated above during which
Appellee was not represented by trial counsel. See Barker, 407 U.S. at 528 n.28;
Dragoo, 96 S.W.3d at 314–15. Furthermore, it is unclear to what extent Appellee’s
pro se motion to dismiss constitutes a lack of acquiescence because the record is
20
silent on whether the pro se motion was ever presented to the trial court and the State
before Appellee filed his April 23, 2019 motion. Even if we assume Appellee’s pro
se motion constituted some affirmative demonstration of his lack of acquiescence,
Appellee subsequently resumed quiet acquiescence for seven to eight months
thereafter until he filed his April 23, 2019 motion.
Therefore, Appellee’s acquiescence to approximately thirty-seven of the fifty-
one and one-half months of delay attributable to the State sufficiently extenuated the
presumption of prejudice to such an extent that does not absolve Appellee of his
burden to show some prejudice. See Davis, 549 S.W.3d at 708; Hopper, 495 S.W.3d
at 474, 478 (holding no presumption of prejudice applies where the defendant
acquiesced to more than eighteen and one-half years of a delay of more than twenty
years); State v. Jones, 168 S.W.3d 339, 352 (Tex. App.—Dallas 2005, pet. ref’d)
(holding a twenty-one-month delay attributable to the State insufficient to raise a
presumption of prejudice); see also Traylor v. State, 534 S.W.3d 667, 676–77 (Tex.
App.—Corpus Christi–Edinburg 2017) (holding that the presumption of prejudice
may be extenuated “by the defendant’s acquiescence in some or all of the delay”)
(emphasis added), rev’d on other grounds, 567 S.W.3d 741 (Tex. Crim. App. 2018).
Moreover, any presumption of prejudice that may apply is further extenuated
because Appellee only sought dismissal of his claims; Appellee never requested or
moved for a speedy trial itself. See Cantu, 253 S.W.3d at 284–86; Dragoo, 96
S.W.3d at 314; Stiles, 596 S.W.3d at 367–68. We now determine whether Appellee
sufficiently made a showing of some prejudice. In his response to the State’s
response to his motion to dismiss, Appellee contended that he was prejudiced by the
delay because “[i]t is doubtful that after 7 years the trial witnesses . . . will have any
better recollection or memory than did the District Attorney. . . . All the other
witnesses that testified . . . will probably not be able to recall material facts that might
aid the Defendant in the trial. . . . Will their memories be any better?” He offered
21
the district attorney’s testimony from the hearing on his motion to dismiss as
evidence to support this assertion, stating that the district attorney could not
remember certain “facts and occurrences” from that trial. However, the “facts and
occurrences” that the district attorney could not remember were only the cause
numbers of the cases and whether the verdict was handed directly to the judge; these
facts are certainly not relevant to any of the proceedings before the trial court, nor
are they facts that an ordinary witness would be expected to remember at any given
time. See Barker, 407 U.S. at 534 (holding that two very minor lapses of memory,
one on the part of a prosecution witness, were in no way significant to the outcome
and would not support a showing of prejudice); State v. Smith, 76 S.W.3d 541, 553
(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (“A defendant is required to
show that any lapses of memory are in some way significant to the outcome of the
case.” (citing Munoz, 991 S.W.2d at 829)). Even viewed in the light most favorable
to the verdict, Appellee offers no relevant instances of fading memories and relies
entirely on speculation to support his assertion. Conclusory assertions are not
sufficient to carry a defendant’s burden to show that he was prejudiced by delay.
Munoz, 991 S.W.2d at 829.
Appellee also contends that he was prejudiced by the delay because the child-
complainant is now seventeen years old and will make a more impressive witness
than when she was ten years old. Appellee asserts that this claim of prejudice is
grounded in the “commonsense notion that a 17 year old will be more adept at
fielding questions and standing up to cross-examination that [sic] a 10 year old
child.” However, the record is entirely devoid of any evidence tending to support
this assertion and would require pure speculation on the part of the trial court in so
finding. See Dragoo, 96 S.W.3d at 311, 315; Munoz, 991 S.W.2d at 829. Even if
we assume that a trial court could have reasonably found that the child-complainant
will now make a more impressive witness, the result remains the same. The current
22
interest with which we are concerned—and the most serious interest that the right to
a speedy trial is designed to protect—is the impairment of the defendant’s ability to
adequately prepare his defense. See Barker, 407 U.S. at 534; State v. Fisher, 198
S.W.3d 332, 342 (Tex. App.—Texarkana 2006, pet. ref’d). That the passage of time
may make a State’s witness better at answering questions on the stand does not create
a reasonable inference that the defendant’s ability to adequately prepare his own
defense is in any way inhibited. The child-complainant is still subject to cross-
examination, and defense counsel is free to impeach her on any subsequent
testimony inconsistent with the testimony she gave at the first trial. This court finds
no authority involving a similar contention, much less any authority suggesting that
such a showing impairs or prejudices a defendant’s ability to adequately defend
himself. For these reasons, Appellee failed to make a showing of prejudice. This
factor weighs heavily against Appellee.
E. Balancing
Balancing the factors, the length of the delay (approximately sixty months)
weighs heavily against the State. The State presented a valid reason for the delay
attributable to trial preparation (approximately seven months before the first trial).
Roughly one and one-half months of the delay, caused by Appellee’s request to
change counsel before the second trial, weighs against Appellee. The remainder of
the second factor weighs lightly against the State. Appellee asserted his right to a
speedy trial in a time, manner, and frequency that weighs moderately against him,
but not heavily because of the twenty-three months that Appellee remained
unrepresented by trial counsel. The length of the delay attributable to the State
created a presumption of prejudice, but the presumption was sufficiently extenuated
by Appellee’s acquiescence in the delay. Furthermore, the inference that Appellee
wanted no trial instead of a speedy trial also mitigates any finding of prejudice.
Lastly, Appellee failed to demonstrate that he suffered any actual prejudice; if any
23
prejudice could be inferred from the record, such prejudice was minimal. Therefore,
the final factor weighs heavily against Appellee.
While we are mindful of the deference that we must give to a trial court’s
factual findings and reasonable inferences supported by the record, the weight of the
Barker factors, as applied here, clearly demonstrates that Appellee’s right to a
speedy trial was not violated. See Barker, 407 U.S. at 534–36; Munoz, 991 S.W.2d
at 829–30; Davis, 549 S.W.3d at 709–10; Jones, 168 S.W.3d at 352; Smith, 76
S.W.3d at 553–54. We sustain the State’s first issue on appeal.
II. Due Process
In its second issue on appeal, the State contends that Appellee’s due process
rights were not violated. In Appellee’s motion to dismiss for failure to provide a
speedy trial and in his response to the State’s response to Appellee’s motion to
dismiss, Appellee asserted that his due process rights were violated in addition to his
speedy-trial rights. To the extent that the trial court found that the State had violated
Appellee’s due process rights, we conclude that the trial court erred.
While the right to a speedy trial protects against undue delay during the time
that charges are pending, “[a]ny undue delay after charges are dismissed, like any
delay before charges are filed, must be scrutinized under the Due Process Clause,
not the Speedy Trial Clause.” MacDonald, 456 U.S. at 7. A defendant’s due process
claim is “evaluated by a different and more onerous standard than alleged speedy
trial violations.” Griffith v. State, 976 S.W.2d 686, 695 (Tex. App.—Tyler 1997,
pet. ref’d). A defendant can establish a due process violation incurred by undue
delay if he establishes “that the delay: 1) caused substantial prejudice to his right to
a fair trial, and 2) was an intentional device used to gain a tactical advantage over
the accused.” State v. Krizan-Wilson, 354 S.W.3d 808, 814–15 (Tex. Crim. App.
2011); see also United States v. Gouveia, 467 U.S. 180, 192 (1984) (Due Process
Clause requires dismissal of indictment where government’s delay was deliberate
24
device to gain advantage and where delay caused defendant actual prejudice); Ibarra
v. State, 11 S.W.3d 189, 193 (Tex. Crim. App. 1999) (citing Gouveia, 467 U.S. at
192). Some courts have extended the second prong of this test to include “other
impermissible bad faith purposes” without defining the phrase. Michaelwicz v.
State, 186 S.W.3d 601, 608 (Tex. App.—Austin 2006, pet. ref’d) (citing United
States v. Crouch, 84 F.3d 1497, 1514 (5th Cir. 1996)). We assume the protections
against pre-indictment delay contemplated by both the federal due process
provisions and the Texas due process provisions are the same, and we apply the same
standards. Saul v. State, 510 S.W.3d 672, 687–88 (Tex. App.—El Paso 2016, pet.
ref’d); see Watts v. State, No. 10-18-00033-CR, 2020 WL 5938778, at *3 (Tex.
App.—Waco Aug. 26, 2020, no pet.) (citing Saul, 510 S.W.3d at 687–88).
Appellee contends that the State acted in bad faith in delaying reindictment
after dismissal of the charges because the State was attempting to hide the video of
the forensic interview of the child during which she denies that Appellee touched
her breasts. Appellee claims that this exculpatory evidence kept Appellee
incarcerated on the indecency-with-a-child conviction until the forensic interview
video of the victim came to light. We disagree. As we discussed in the second factor
of our speedy-trial analysis, Appellee failed to establish that the State acted in bad
faith in delaying retrial to keep that evidence from being discovered. The trial court
acknowledged that the evidence was available to the defendant at the first trial, and
regardless, there is no evidence that a more prompt reindictment of the two counts
of aggravated sexual assault of a child would have brought the exculpatory evidence
to light sooner. Appellee also failed to establish actual prejudice from the delay that
occurred before reindictment. As we determined in our discussion of the fourth
factor of the speedy-trial claim, Appellee presented no evidence of missing
witnesses, lost evidence, or some other impairment of his ability to adequately
prepare his defense. The record is unclear on whether Appellee sufficiently
25
presented to the trial court his argument that the prejudice suffered from pretrial
incarceration was a result of the delay before reindictment. Assuming arguendo that
he sufficiently presented this argument to the trial court, the record is devoid of any
evidence tending to establish that he suffered actual prejudice in the case before us
or that any such prejudice was substantial. Prior to the reindictment, Appellee was
incarcerated on another offense, not on the indictment before this court. Appellee
does not contend that he was prejudiced in any way in the case before us; he,
therefore, failed to meet his burden. To the extent the trial court determined that
Appellee’s due process rights were violated, the trial court erred. Accordingly, we
sustain the State’s second issue on appeal.
This Court’s Ruling
We reverse the judgment of the trial court and remand the cause for further
proceedings consistent with this opinion.
W. BRUCE WILLIAMS
JUSTICE
May 28, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
26