State v. Miguel Marco Melendez ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
Nos. 04-18-00478-CR & 04-18-00479-CR
The STATE of Texas,
Appellant
v.
Miguel MELENDEZ,
Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court Nos. 6467 & 6468
Honorable Bill Palmer, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: August 14, 2019
AFFIRMED
The State appeals the trial court’s orders dismissing two indictments charging Miguel
Melendez with burglary of a habitation. The record supports the trial court’s conclusion that
Melendez’s right to a speedy trial was violated. We therefore affirm the trial court’s orders.
BACKGROUND
Because these appeals concern the timeline of facts and trial court proceedings, we set out
the timeline of events in these cases:
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 On November 24, 2014, Melendez allegedly went to a residence, entered without
the effective consent of the owners, and committed or attempted to commit
aggravated assault with “a wooden rod.”
 On December 2, 2014, Melendez was arrested and released on a $75,000 bond.
 In February 2016, a material defense witness, who was one of the residents at the
house on the night of the alleged burglary, died.
 On October 10, 2017, almost three years after Melendez was arrested, a grand jury
charged Melendez in two indictments with burglary of a habitation. Both
indictments alleged the same incident, but each alleged a different owner of the
residence.
 On November 22, 2017, Melendez surrendered to authorities pursuant to a capias,
and he posted an additional $30,000 bond.
 In December 2017 and January 2018, status hearings in the cases were reset, once
without explanation and once because counsel was “called to federal court.”
 On January 24, 2018, Melendez filed motions to dismiss on speedy trial grounds
and a motion to quash the indictments on double jeopardy grounds.
 The status hearings were reset three more times. Melendez’s attorney signed each
of these notices, and the State’s attorney did not. The record does not indicate
whether the hearings were reset upon either party’s request.
 On June 7, 2018, the parties were notified a pretrial hearing was set for June 21,
2018.
 On June 21, 2018, the State filed motions for leave to amend the indictments, and
the trial court heard Melendez’s motions, granted Melendez’s speedy trial motions,
and signed orders dismissing the indictments.
The State timely appealed both orders of dismissal. This court consolidated the appeals for briefing
and disposition. The State’s two issues are that the trial court erred by dismissing the indictments
against Melendez on speedy trial and due process grounds.
THE RIGHT TO A SPEEDY TRIAL
A person accused of a criminal offense has the right to a speedy trial. Hopper v. State, 520
S.W.3d 915, 923 (Tex. Crim. App. 2017). When the right to a speedy trial “has been deprived,” a
dismissal of the charging instrument is the “only possible remedy.” Barker v. Wingo, 407 U.S.
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514, 522 (1972). To determine whether the accused has been deprived of his right to a speedy trial,
courts apply four factors set out in Barker: “(1) the length of delay, (2) the reasons for delay, (3)
the defendant’s assertion of the right, and (4) prejudice to the defendant.” Hopper, 520 S.W.3d at
918. “No one factor possesses ‘talismanic qualities,’ thus courts must ‘engage in a difficult and
sensitive balancing process’ in each individual case.” Zamorano v. State, 84 S.W.3d 643, 648 (Tex.
Crim. App. 2002) (quoting Barker, 407 U.S. at 533).
In reviewing a dismissal on speedy trial grounds, we apply a bifurcated standard of review.
Id. “When reviewing the trial court’s application of the Barker test, we give almost total deference
to the trial court’s historical findings of fact that the record supports, and we draw reasonable
inferences from those facts necessary to support the trial court’s findings.” Balderas v. State, 517
S.W.3d 756, 767–68 (Tex. Crim. App. 2016). “An appellate court reviewing a trial court’s ruling
on a motion to dismiss for want of a speedy trial must do so in light of the arguments, information,
and evidence that was available to the trial court at the time it ruled.” Shaw v. State, 117 S.W.3d
883, 889 (Tex. Crim. App. 2003).
“Review of the individual Barker factors necessarily involves fact determinations and legal
conclusions, but the balancing test as a whole is a purely legal question that we review de novo.”
Balderas, 517 S.W.3d at 768. Because Melendez prevailed on his speedy trial claim, “we presume
the trial court resolved any disputed fact issues in his favor.” See State v. Ritter, 531 S.W.3d 366,
371 (Tex. App.—Texarkana 2017, no pet.) (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex.
Crim. App. 1999)). When, as here, the State did not request, and the trial court did not make,
findings of fact and conclusions of law, we will imply all findings necessary to support the trial
court’s ruling if those findings are supported by the record. Id.
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A. Length of the Delay
The first factor we consider is whether the length of the delay is presumptively prejudicial
to trigger an analysis of the remaining factors. Barker, 407 U.S. at 530; Hopper, 520 S.W.3d at
924. The length of delay is measured from the time the defendant is arrested or formally accused,
whichever is first, until the trial or the defendant asserts his right to a speedy trial. Zamarripa v.
State, 573 S.W.3d 514 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
The length of the time from the day Melendez was arrested, December 2, 2014, until he
asserted his right to a speedy trial at the June 21, 2018 pretrial hearing, was forty-two months and
nineteen days. In its brief, “the State admits that the delay is presumptively improper and that
further speedy-trial analysis is necessary.” See Doggett v. United States, 505 U.S. 647, 652 n.1
(1992) (noting a one-year delay is presumptively prejudicial); Shaw, 117 S.W.3d at 888–89 (same).
That being said, we proceed to analyzing the remaining three Barker factors.
B. Reasons for Delay
“The burden of justifying the delay is on the State.” Voda v. State, 545 S.W.3d 734, 742
(Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing Cantu v. State, 253 S.W.3d 273, 280 (Tex.
Crim. App. 2008)). “In evaluating the State’s reason for the delay, we assign different weights for
different reasons. Valid reasons for delay do not weigh against the State, whereas bad-faith delays
weigh heavily against the State.” Id. (internal citations omitted). “A more neutral reason, such as
negligence, will weigh less heavily against the State.” Id. A deliberate attempt to delay the trial in
order to hamper the defense should be weighed heavily against the government. Zamorano, 84
S.W.3d at 649. Neutral reasons, such as negligence or overcrowded courts, weigh against the State,
although less heavily, because the responsibility for such circumstances rests with the government,
not the defendant. Barker, 407 U.S. at 531. Although such reasons are “neutral,” they are
nevertheless “unacceptable reasons for delaying a criminal prosecution.” Doggett, 505 U.S. at 657.
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At the hearing on Melendez’s speedy trial motions, the State provided three reasons for the
delay. First, the State explained there was a delay with the police department in investigating and
preparing a proper offense report. The prosecutor represented to the trial court:
I can tell the Court as an officer of the Court that it appears to me that this [case]
was initially submitted to what at the time was the 216th District Attorney’s office
in about May of 2016. It appears to me that it was reviewed and sent back because
they did not like the way that it had been charged by the police department and
were asking for additional evidence.
Second, the State explained, “[A]s the Court is well aware, in January of 2017, the 451st Court
and District Attorney’s office were created. And we inherited approximately six banker’s boxes
worth of cases.” The State denied the delay was in bad faith. Third, the State argued Melendez had
acquiesced to resetting the hearings.
The State provided no explanation for the delay from the date of Melendez’s arrest,
December 2, 2014, to May 2016, when the case was “initially submitted to . . . 216th District
Attorney’s office.” The State therefore did not satisfy its burden to justify this presumptively
prejudicial year-and-a-half delay. This delay weighs against the State. See Rivera v. State, 990
S.W.2d 882, 889 (Tex. App.—Austin 1999, pet. ref’d) (“[I]f the record is silent or the reasons
given are insufficient to excuse the delay, the appellate court must presume that no valid reason
for delay existed.”).
The State explained the reason for the delay from May 2016 to January 2017 was not due
to bad faith, but to inadequate policework. Inadequate policework is a neutral, yet unacceptable
reason for a delay that weighs against the State. See Doggett, 505 U.S. at 657; accord Luke v. State,
No. 05-02-01543-CR, 2003 WL 1994850, at *2 (Tex. App.—Dallas May 1, 2003, no pet.) (not
designated for publication); Sims v. State, No. 08-00-00067-CR, 2001 WL 85156, at *2 (Tex.
App.—El Paso Feb. 1, 2001, no pet.) (not designated for publication).
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The State explained the reason for the delay from January 2017 to October 10, 2017, the
day Melendez was indicted, was a caseload caused by the creation of a new district court and
district attorney’s office. It is unclear why the creation of a new district court and district attorney’s
office, which are efforts to reduce backlog and the burden on existing courts and prosecuting
authorities, justifies a delay. On appeal, the State seeks to clarify, presenting new and different
information not presented to the trial court. We may not consider the information the State presents
for the first time on appeal. See Shaw, 117 S.W.3d at 889. Nevertheless, such a backlog is an issue
of “overcrowded courts,” which is a neutral, yet unacceptable reason that weighs against the State
because the ultimate responsibility for such circumstances rests with the government, not the
defendant. See Doggett, 505 U.S. at 657; Zamorano, 84 S.W.3d at 649.
The State claims the delay from the date of the indictments, October 10, 2017, to the date
of the speedy trial hearing, July 21, 2018, weighs against Melendez. The State argues this delay
was due to Melendez “agree[ing] to resets for another five months when the State did not.”
Although the record does not support that Melendez requested the resets, the record shows, at the
very least, that Melendez acquiesced to the resets. “[A]cquiescence in further delay . . . weighs
against finding a violation” of a defendant’s right to a speedy trial. Zamarripa, 573 S.W.3d at 525.1
In sum, the unexplained delay from December 2, 2014, to May 2016, weighs against the
State. The delay due to the neutral reasons such as inadequate police work and docket
overcrowding—from May 2016, to October 10, 2017—weighs against the State slightly. Because
Melendez acquiesced to resetting the case, the delay from October 2017 to June 2018 weighs
1
We also note Melendez had moved to quash the indictments because they charged him for the same alleged burglary
in violation of his rights under the Double Jeopardy Clause. The State had filed a motion to amend the indictments,
and the trial court determined at the June 21, 2018 pretrial hearing that Melendez would need to be re-indicted. In
State v. Lopez, this court considered an inevitable future delay caused by such negligence as weighing against the
State. 563 S.W.3d 409, 423–24 (Tex. App.—San Antonio 2018, pet. granted). Because the Court of Criminal Appeals
has granted review, and an issue is whether courts may consider inevitable future delays in analyzing a speedy trial
claim, we note this inevitable future delay, but we do not consider it in our analysis.
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against Melendez for that period of time. See id. In its brief, the State all but admits that the pre-
indictment reasons for the delay weigh against the State, but not heavily because there is no bad
faith. We agree, and conclude this factor weighs against the State.
C. Assertion of the Right
We next must consider whether Melendez asserted his right to a speedy trial. Barker, 407
U.S. at 530; Hopper, 520 S.W.3d at 924. Generally, the assertion-of-the-right factor concerns
whether a defendant asserted his right to a speedy trial in the trial court as opposed to the first time
on appeal. See Barker, 407 U.S. at 531-32. “Of course, the defendant has no duty to bring himself
to trial; that is the State’s duty.” Zamorano, 84 S.W.3d at 651. “This does not mean that the
defendant has no responsibility to assert his right to a speedy trial.” Id. “[T]he defendant’s assertion
of his speedy trial right is entitled to strong evidentiary weight in determining whether the
defendant is being deprived of the right.” Id.
The State argues the Court of Criminal Appeals has noted requesting a dismissal instead
of a speedy trial undermines the weight of a defendant’s assertion of his right to a speedy trial.
Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. [Panel Op.] 1983). “This is not to say,
however, that asking only for dismissal will result in a ‘waiver,’” of a speedy trial claim.” Id. “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.” Id.
“Each case must turn on its own facts, and the particular relief a defendant seeks is but one fact to
consider.” Id. We also consider whether there is anything “to suggest that appellant deliberately
failed to move for a speedy trial because of tactical reasons.” See id. (citing Barker, 407 U.S. at
534-36); accord Cantu, 253 S.W.3d at 283.
Here, Melendez asserted his right to a speedy trial in the trial court by filing his speedy
trial motion and raising the issue at the June 21, 2018 pretrial hearing. Melendez’s assertion of his
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speedy trial right “is entitled to strong evidentiary weight.” See Zamorano, 84 S.W.3d at 651. The
State suggests the weight of Melendez’s assertion of his right is weakened because Melendez
requested dismissal instead of a speedy trial. See Cantu, 253 S.W.3d at 283. Although the Court
of Criminal Appeals has noted this can be a consideration in some cases, the weight we must give
to Melendez’s assertion of his right to a speedy trial is not weakened significantly because
Melendez “ha[d] no duty to bring himself to trial; that [wa]s the State’s duty.” Zamorano, 84
S.W.3d at 651. And, a dismissal of the charging instrument is the “only possible remedy” when
the right to a speedy trial “has been deprived.” Barker, 407 U.S. at 522. Furthermore, it was
undisputed that the indictments were defective. Thus, it would make little sense to impose a strict
requirement on Melendez, in asserting his right to speedy trial, to assist the State proceed to trial
on defective indictments.
The presumptively prejudicial delay in this case occurred before the indictments. Before
he was indicted, Melendez was not able to file a motion for speedy trial to assert his right. “[O]ne
cannot file a motion for a speedy trial until formal charges are made,” but “the right to [a speedy
trial] can be asserted in other ways” before an indictment is filed, such as inquiring into the status
of the case. Cantu, 253 S.W.3d at 283 & n.47. Melendez’s burden of proof as to the assertion of
his right “varie[d] inversely” with the State’s degree of culpability for the delay in light of the
delay’s protractedness. See id. at 280; Doggett, 505 U.S. at 657 (“[O]ur toleration of such
negligence varies inversely with its protractedness.”). The delay in this case cannot be explained
by the complexity of the nature of the offense. See Barker, 407 U.S. at 531 (“[T]he delay that can
be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy
charge.”). Under the facts of this case, we decline to impose a requirement that, before asserting
his right to a speedy trial had been violated, Melendez was required to encourage the State to
secure indictments against him. Melendez satisfied his burden in the trial court to assert his right
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to a speedy trial had been violated, the only remedy for which the United States Supreme Court
has held is dismissal. See id. at 522. Although Melendez could have asserted his right in other
ways, we disagree with the State that Melendez’s failure to urge the State to expedite efforts to
indict him causes this factor to “weigh[] heavily in favor of the State.”
D. Prejudice to the Defendant
We assess prejudice to the defendant “in light of the interests the right to a speedy trial was
designed to protect,” including “limiting the possibility that the defense will be impaired.” Hopper,
520 S.W.3d at 924. Impairing the defense is the “most serious” type of prejudice “because the
inability of a defendant adequately to prepare his case skews the fairness of the entire system.”
Barker, 407 U.S. at 532. “[P]roof of actual prejudice is not required when the delay is excessive,
because such a delay ‘presumptively compromises the reliability of a trial in ways that neither
party can prove or even identify.’” Harper v. State, 567 S.W.3d 450, 460 (Tex. App.—Fort Worth
2019, no pet.) (quoting Shaw, 117 S.W.3d at 890). When a defendant makes a prima facie showing
of prejudice, the State has the burden to prove “the accused suffered no serious prejudice beyond
that which ensued from the ordinary and inevitable delay.” Ex parte McKenzie, 491 S.W.2d 122,
123 (Tex. Crim. App. 1973).
Melendez asserted the prejudice he suffered was the death of a material witness: Duke
Berry. At the pretrial hearing, Melendez identified his defensive theory, which was that Berry gave
him consent to enter the home. See Hopper, 520 S.W.3d at 918, 923 (agreeing with court of
appeals’ reasoning that defendant should identify his defensive theory). Melendez elaborated as to
why Berry was likely to testify he had the authority to give Melendez consent to enter the home.
See id. (agreeing defendant should explain likely substance of lost evidence). Berry had lived at
the house for seven years; there was no sign of forced entry; and Melendez “had always been
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welcomed into that house by Duke Berry; that Duke Berry had, in fact, initiated his coming over
in part that evening and allowed him in the house -- invited him into the house.”
The State argues this assertion of prejudice is “only based on unsubstantiated assertions
made by defense counsel and not supported by the record.” We reject the State’s argument for
three reasons. First, in the trial court, Melendez offered to put on evidence in support of his
prejudice claim, but the State did not dispute any of the supporting facts advanced by Melendez,
including facts that Berry died during the State’s unexplained delay, there were no signs of forced
entry, and Berry likely would have testified he lived at the residence at the time of the alleged
offenses, had authority to give consent for Melendez to enter the home, invited Melendez into the
home numerous times before, and invited Melendez over on that evening. Second, the State
suggested the trial court should consider counsel’s arguments as factual representations because
the attorneys were making representations, in the prosecutor’s words, as “officer[s] of the Court.”
See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999). Third, our standard of review
requires us to consider “the arguments, information, and evidence that was available to the trial
court at the time it ruled.” Shaw, 117 S.W.3d at 889. We hold the record supports the trial court’s
implied determination, based on the information and arguments available to the trial court, that
Melendez made a prima facie showing of prejudice. See id. The State does not argue in its brief
that it satisfied its burden in the trial court to prove Melendez “suffered no serious prejudice beyond
that which ensued from the ordinary and inevitable delay.” See McKenzie, 491 S.W.2d at 123; see
also TEX. R. APP. P. 38.1(i).
E. Balancing the Factors
Although Melendez acquiesced to resetting hearings after he was indicted, the State
provided no explanation for the year-and-a-half delay before it indicted Melendez, during which
time a material defense witness died. The State was responsible for another pre-indictment delay
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that lasted over a year. These delays, although for neutral reasons, were “unacceptable.” See
Doggett, 505 U.S. at 657. In the trial court, Melendez asserted the delay violated his right to a
speedy trial, and his failure to ask the State to secure indictments against him or to bring him to
trial more quickly do not substantially weaken the weight we must give to Melendez’s assertion
of his right in the trial court. See Zamorano, 84 S.W.3d at 651. Furthermore, when he was first
able to request relief from the trial court for a violation of his right to a speedy trial, a material
defense witness had already died. See Doggett, 505 U.S. at 657. The right to a speedy trial is to
limit such a “possibility that the defense will be impaired,” which is the most significant concern
the right to a speedy trial addresses. See Barker, 407 U.S. at 532; Hopper, 520 S.W.3d at 924.
When the right to a speedy trial has been violated, a dismissal of the charging instrument is the
“only possible remedy.” Barker, 407 U.S. at 522.
CONCLUSION
We hold the record supports the trial court’s determination that Melendez’s right to a
speedy trial was violated. Because dismissal of the indictments was the “only possible remedy,”
we conclude the trial court did not err by granting Melendez’s motion to dismiss the indictments
on speedy trial grounds. See id. We therefore affirm the trial court’s orders granting Melendez’s
motions and dismissing the indictments against him. 2
Luz Elena D. Chapa, Justice
DO NOT PUBLISH
2
In a separate issue, the State argues the trial court’s orders cannot be supported on due process grounds. Because we
agree the speedy trial grounds suffice to support dismissal of the indictments, we do not address the State’s second
issue. See TEX. R. APP. P. 47.1.
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