Derek Jay Grant v. the State of Texas ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00752-CR
Derek Jay GRANT,
Appellant
v.
The STATE of Texas,
Appellee
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 19-140-CR
Honorable Sid L. Harle, Judge Presiding 1
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: April 10, 2024
AFFIRMED
Appellant Derek Jay Grant challenges the trial court’s order denying his motion to dismiss
the information based on the denial of his constitutional right to a speedy trial. We affirm.
BACKGROUND
On February 21, 2019, the State charged Grant by information with driving while
intoxicated after a Boerne police officer arrested him during a routine traffic stop on January 1,
1
The Honorable Kirsten Cohoon is the current presiding judge of the 451st District Court in Kendall County, and she
signed the challenged order on appeal.
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2019. The case was originally set for an April 27, 2020 jury trial; however, due to the COVID-19
pandemic, trial was reset for July 20, 2020. 2 Trial was then reset to October 19, 2020 for unknown
reasons, followed by additional resets, due to the overcrowded trial docket: February 16, 2021,
April 26, 2021, August 16, 2021, and November 29, 2021.
On October 4, 2021, the State moved for a continuance of the November trial setting,
arguing the arresting officer was unavailable to testify due to active-duty military obligations, and
the trial court then reset the trial to March 21, 2022. The case was subsequently reset to August
15, 2022 for unknown reasons. On August 10, 2022, the State sought another continuance due to
the arresting officer’s unavailability because of his military obligations, and the next day, the trial
court reset the trial for January 17, 2023.
On August 11, 2022, Grant filed a “Motion to Dismiss Information for Denial of Speedy
Trial,” requesting the trial court grant him a speedy trial or alternatively dismiss the information
against him. At the hearing on Grant’s motion, the trial court heard testimony from Grant and
ultimately denied his motion. The trial court also moved Grant’s January 17, 2023 trial date to an
earlier date of October 17, 2022, and after the October trial, the jury found Grant guilty of driving
while intoxicated. Grant then pursued this appeal, arguing the delay in time between when he was
charged and when the trial took place violated his constitutional right to a speedy trial.
STANDARD OF REVIEW AND APPLICABLE LAW
The Sixth Amendment of the United States Constitution guarantees a criminal defendant
the right to a speedy trial. U.S. CONST. amend. VI; State v. Lopez, 631 S.W.3d 107, 113 (Tex.
Crim. App. 2021); Balderas v. State, 517 S.W.3d 756, 767 (Tex. Crim. App. 2016). “The right
attaches once a person becomes an ‘accused’—that is, once he is arrested or charged.” Cantu v.
2
In the Spring of 2020, the COVID-19 pandemic hit, initiating a series of emergency orders restricting in-person jury
trials. See First Emergency Ord. Regarding COVID-19 State of Disaster, 596 S.W.3d 265 (Tex. 2020).
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State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008) (quoting United States v. Marion, 404 U.S.
307, 321 (1971)). When a defendant claims he was denied his right to a speedy trial, courts
consider four factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant’s
assertion of his right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530
(1972); Lopez, 631 S.W.3d at 113; Balderas, 517 S.W.3d at 767. “[T]he State has the burden of
justifying the length of delay, [while] the defendant has the burden of proving the assertion of the
right and showing prejudice.” Cantu, 253 S.W.3d at 280 (footnote omitted). “Moreover, ‘[t]he
length of delay is, to some extent, a triggering mechanism, so that a speedy trial claim will not
even be heard until passage of a period of time that is, on its face, unreasonable in the
circumstances.’” Lopez, 631 S.W.3d at 113 (alteration in original) (quoting Dragoo v. State, 96
S.W.3d 308, 313 (Tex. Crim. App. 2003)). Once the defendant makes “a threshold showing that
the interval between accusation and trial is ‘presumptively prejudicial,’ then a court must consider
each of the remaining Barker factors and weigh them.” Balderas, 517 S.W.3d at 767.
In reviewing the trial court’s analysis of the Barker factors, we apply a bifurcated standard
of review. Lopez, 631 S.W.3d at 113–14; Balderas, 517 S.W.3d at 767–68. “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, 517 S.W.3d at 767–68. “A
reviewing court should not consider in its deliberations record evidence that was not before the
trial court when it made its ruling.” Id. at 768. “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.” Id.-3-
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APPLICATION
A. Length of the Delay
In conducting a Barker analysis, “we measure the delay from the time the defendant is
formally accused or arrested to the time of trial.” Lopez, 631 S.W.3d at 114. Courts generally
deem a delay approaching one year as “unreasonable enough to trigger a Barker inquiry.” State v.
Lampkin, 630 S.W.3d 559, 563 (Tex. App.—San Antonio 2021, no pet.) (quoting Balderas, 517
S.W.3d at 768 and Dragoo, 96 S.W.3d at 314) (internal quotation marks omitted); see Lopez, 631
S.W.3d at 114 (“Generally, a delay of eight months to a year, or longer, is presumptively
prejudicial and triggers a speedy trial analysis.”).
Here, Grant was arrested on January 1, 2019, and tried on October 17, 2022—a delay of
forty-five months. The State concedes on appeal this delay “is sufficient to trigger an analysis of
the remaining factors.” Accordingly, because the length of the delay stretches beyond the bare
minimum needed to trigger a Barker inquiry, this factor—in and of itself—weighs heavily against
the State.
B. Reasons for the Delay
In weighing the second Barker factor, “we assign different weights to different reasons.”
Balderas, 517 S.W.3d at 768. “Some reasons are valid and serve to justify an appropriate delay.”
Id. “Deliberate delay intended to ‘hamper the defense’ weighs heavily against the State, while
more neutral reasons, such as negligence or overcrowded courts, weigh less heavily.” Id. (quoting
Vermont v. Brillon, 556 U.S. 81, 90 (2009)). However, “[d]elay caused by either the defendant or
his counsel weighs against the defendant.” Id. Finally, “[i]n the absence of an assigned reason for
the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice the
defense nor a valid reason for the delay.” Id. (quoting Dragoo, 96 S.W.3d at 314) (internal
quotation marks omitted).
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In this case, the record shows after Grant was charged on February 21, 2019, the trial court
set the first pre-trial conference for August 13, 2019. On August 6, Grant requested a continuance
because he needed to travel out of state to visit his ill mother. The trial court granted Grant’s
request, and the pre-trial conference was subsequently reset for October 8, 2019. The record shows
the pre-trial conference was reset two more times without explanation with trial initially set for
April 27, 2020. The trial date was then reset a total of six times; during the speedy trial hearing,
the trial court took judicial notice of the first reset occurring because of the COVID-19 pandemic,
the second reset happening without an explanation, and the subsequent resets being attributable to
the overcrowded court docket in Kendall County. Defense counsel also recognized many of these
resets occurred because of the pandemic and its impact on the trial docket. Thereafter, the trial
date was reset three more times with two times attributed to the arresting officer’s unavailability
due to military obligations, and the other time was not explained.
The delays caused by the COVID-19 pandemic and resulting overcrowded dockets do not
weigh against the State. See Balderas, 517 S.W.3d at 768 (stating neutral reasons such as
overcrowded courts should be weighted less heavily); State v. Conatser, 645 S.W.3d 925, 929–30
(Tex. App.—Dallas 2022, no pet.) (concluding months of delay “dominated by the unforeseeable
initial impact of the COVID-19 pandemic” not attributable to State). Texas law recognizes the
period of delay caused by the COVID-19 pandemic and subsequent limitations on jury trials fit
into the neutral category, and this case is no different. See Conatser, 645 S.W.3d at 929–30. As
to the unexplained delays, we may not presume either a deliberate attempt by the State to prejudice
the defense or a valid reason for the delay. See Dragoo, 96 S.W.3d at 314. Finally, the record
shows the remaining delays were due to the unavailability of the State’s witness, who was the
arresting officer and inaccessible due to his active-duty military obligations. This explanation
serves as a valid reason to justify an appropriate delay, and there is no evidence the State
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deliberately delayed Grant’s trial for strategic gain. See Barker, 407 U.S. at 531 (“Finally, a valid
reason, such as a missing witness, should serve to justify appropriate delay.”). Accordingly, when
considering the COVID-19 pandemic, the impact it had on overcrowded dockets, and the arresting
officer’s unavailability due to military obligations as the primary reasons for the numerous trial
resets, we conclude the second Barker factor does not weigh against the State.
C. Defendant’s Assertion of the Right
“A 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.’” Lopez, 631 S.W.3d at 116
(quoting Zamorano v. State, 84 S.W.3d 643, 651 (Tex. Crim. App. 2002)). “A defendant’s lack
of a timely demand for a speedy trial indicates strongly that he did not really want one.” Balderas,
517 S.W.3d at 771. And, “[f]iling for a dismissal instead of a speedy trial will generally weaken
a speedy-trial claim because it shows a desire to have no trial instead of a speedy one.” Cantu,
253 S.W.3d at 283. Finally, “inaction weighs more heavily against a violation the longer the delay
becomes.” Balderas, 517 S.W.3d at 771 (quoting Dragoo, 96 S.W.3d at 314) (internal quotation
marks omitted).
The record shows Grant moved for a speedy trial on August 11, 2022—forty-three months
after he was arrested. In his motion, he prayed for the trial court to grant him a speedy trial or
alternatively dismiss the information against him. During the hearing on the motion, however,
Grant only asked the trial court to dismiss his case. Because Grant waited forty-three months to
assert his right to a speedy trial and then primarily sought a dismissal rather than a speedy trial at
the hearing, the third Barker factor weighs heavily against him. See Balderas, 517 S.W.3d at 771;
Cantu, 253 S.W.3d at 283.
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D. Prejudice to the Defendant
“The fourth Barker factor focuses on prejudice to the defendant because of the length of
delay.” Balderas, 517 S.W.3d at 772. “To analyze prejudice, we consider three interests of
defendants that the Speedy Trial Clause was designed to protect: (1) preventing oppressive pretrial
incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the
possibility that the defense will be impaired.” Id. “The last interest is the most important because
the fairness of the criminal-justice system is distorted when a defendant is unable to adequately
prepare his defense.” Id. “A defendant has the burden to make some showing of prejudice, but a
showing of actual prejudice is not required.” Id. “Excessive delay presumptively compromises
the reliability of a trial in ways that neither party can prove or identify.” Id.In considering the first interest, the record shows Grant was released on bond the day he
was arrested, and he remained on bond pending trial. Thus, he was not subjected to oppressive
pretrial incarceration. Turning to the second interest, Grant testified he had missed approximately
twelve days of work because he had to appear for different settings in the case. He estimated his
missed work resulted in a loss of $2,000 in wages. He also testified he experienced anxiety each
time he prepared to appear before the trial court, only to face a reset. Grant compares his testimony
to the defendant in Zamorano v. State, in which the Texas Court of Criminal Appeals concluded
similar testimony supported an inference of actual prejudice. See 84 S.W.3d at 654 (“Here, the
length of the delay itself supports an inference of actual prejudice, as does appellant’s testimony
of the direct economic costs, the four years’ worth of disruptions to his job, and the weekly
requirement to report to the bonding company”). We agree because like the defendant in
Zamorano, Grant testified he was “concerned,” “thinking about [the case] on a regular basis,” and
anxious about whether the case would go forward each time he appeared. See id. Thus, “it is at
least some evidence of the type of ‘anxiety’ that the [United States] Supreme Court considers under
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the prejudice prong of Barker.” Id. Finally, in analyzing the last interest, there is nothing in the
record indicating Grant was prejudiced or his defense was impaired; here, Grant testified he had a
“pretty good” memory about the events surrounding his arrest.
After considering the three interests, we conclude the fourth Barker factor concerning
prejudice weighs slightly in favor of Grant.
E. Balancing Factors
Having outlined the evidence relevant to the four Barker factors, we must now balance
them by weighing the strength of each factor and 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) (internal quotation marks omitted); see Zamorano, 84 S.W.3d at
648 (providing the factors are related and must be considered along with any other relevant
circumstances). We also remain mindful to balance them “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.” Balderas, 517 S.W.3d at 773; Cantu, 253
S.W.3d at 281. This is because dismissal of a charge is a radical remedy, and a “wooden
application of the Barker factors” infringes 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)) (internal quotation marks omitted).
Weighing in favor of finding a violation of Grant’s speedy trial right are the presumptively
prejudicial length of delay along with the slight prejudice to Grant caused by his emotional and
financial hardship. See Zamorano, 84 S.W.3d at 654. The record, however, also shows the
primary reasons for the delay—the COVID-19 pandemic, a resulting overcrowded trial docket,
and the arresting officer’s unavailability due to military service—do not weigh against the State.
And, the factor that weighs most heavily against Grant was his decision to move for a speedy trial
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forty-three months after his arrest, at which point he primarily sought an outright dismissal. See
Cantu, 253 S.W.3d at 283 (“Filing for a dismissal instead of a speedy trial will generally weaken
a speedy-trial claim because it shows a desire to have no trial instead of a speedy one.”). Finally,
as to prejudice, Grant failed to show how the length of the delay hampered his ability to put forward
a defense. Accordingly, when balancing the four factors together in light of the parties’ conduct
and relevant circumstances, we conclude they weigh against finding a violation of Grant’s
constitutional right to a speedy trial. We therefore hold the trial court did not err in denying Grant’s
motion, and we overrule his sole issue on appeal.
CONCLUSION
We affirm the trial court’s judgment.
Luz Elena D. Chapa, Justice
Do Not Publish
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