Elva L. Montez v. the State of Texas ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-23-01011-CR
Elva L. MONTEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 8, Bexar County, Texas
Trial Court No. 700499
Honorable Mary D. Roman, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Irene Rios, Justice
Beth Watkins, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: October 30, 2024
AFFIRMED
Appellant Elva L. Montez challenges the trial court’s denial of her motion to dismiss for
lack of a speedy trial. We affirm.
BACKGROUND
On January 13, 2023, Montez was arrested on suspicion of driving while intoxicated. On
July 20, 2023, Montez filed a motion seeking a dismissal for violation of her speedy trial rights or,
alternatively, for “trial in this case [to] be scheduled within the next two weeks.” On July 25, 2023,
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the trial court concluded it lacked jurisdiction to rule on the motion because the State had not yet
filed a charging instrument.
On September 15, 2023, the State filed an information charging Montez with operating a
motor vehicle while intoxicated. On September 25, 2023, Montez filed a second motion for speedy
trial that was identical to the motion she filed in July.
The trial court heard and denied Montez’s motion on October 10, 2024. The same day,
Montez pleaded nolo contendere to the charged offense and the trial court signed a judgment of
conviction. Montez then timely filed this appeal to challenge the trial court’s denial of her speedy
trial motion. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (defendant who has been convicted on
plea of nolo contendere may appeal “those matters which have been raised by written motion filed
prior to trial”); TEX. R. APP. P. 25.2(a)(2)(A) (same).
ANALYSIS
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; Gonzales v. State, 435 S.W.3d 801, 808 (Tex.
Crim. App. 2014). When a defendant claims she was denied her right to a speedy trial, courts
consider four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s
assertion of the right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530
(1972). “If the defendant can make 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 v. State, 517 S.W.3d 756, 767 (Tex. Crim. App. 2016). In reviewing
the trial court’s application of the Barker factors, “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
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facts necessary to support the trial court’s findings.” Id. at 767–68. We may not consider evidence
that was not before the trial court when it ruled. 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.Application
Length of Delay
In conducting a Barker analysis, “[w]e measure the length of delay from (1) the time the
accused is arrested or charged to (2) the time of trial or the defendant’s demand for a speedy trial.”
State v. Lampkin, 630 S.W.3d 559, 563 (Tex. App.—San Antonio 2021, no pet.). A delay
“approaching one year” is presumptively unreasonable so as “to trigger the Barker enquiry.”
Balderas, 517 S.W.3d at 768 (internal quotation marks omitted). Texas courts generally agree that
a delay of eight months is the minimum necessary to trigger a full Barker analysis. See, e.g., Roque
v. State, 693 S.W.3d 771, 776 (Tex. App.—Houston [14th Dist.] 2024, no pet.); Bosworth v. State,
422 S.W.3d 759, 768–69 (Tex. App.—Texarkana 2013, pet. ref’d); Russell v. State, 90 S.W.3d
865, 872 (Tex. App.—San Antonio 2002, pet. ref’d).
The record shows Montez was arrested on January 13, 2023 and first asserted a violation
of her right to a speedy trial on July 20, 2023, approximately six months later. 1 At that time, she
had not yet been formally charged with a crime, so the trial court concluded it lacked jurisdiction
to consider her motion. 2 Montez cites no authority holding that the six-month delay between her
1
In her brief, Montez contends that she appeared before the trial court and requested a jury trial on March 14, 2023;
April 25, 2023; May 25, 2023; July 5, 2023; August 7, 2023; and September 25, 2023. While the record shows Montez
filed written motions alleging a speedy trial violation on July 20, 2023 and September 25, 2023, it contains no support
for her assertions that she requested a trial on the other dates listed in her brief. Accordingly, we may not accept those
assertions as fact. See, e.g., Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996); Salazar v. State, 5 S.W.3d
814, 816 (Tex. App.—San Antonio 1999, no pet.).
2
The United States Supreme Court has held that “[i]nvocation of the speedy trial provision . . . need not await
indictment, information, or other formal charge.” United States v. Marion, 404 U.S. 307, 321 (1971). However,
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arrest and her first assertion of her speedy trial right was presumptively unreasonable so as to
trigger a full Barker analysis, and we have found none. See Balderas, 517 S.W.3d at 768; Russell,
90 S.W.3d at 872.
After the State formally charged Montez by information on September 15, 2023, she filed
a second speedy trial motion on September 25, 2023, and the trial court heard the motion two
weeks later. Accordingly, the record shows an eight-month delay between Montez’s arrest and her
second assertion of her speedy trial right and a nine-month delay between her arrest and the hearing
on her motion. 3 The State concedes on appeal that this delay is sufficient to trigger an analysis of
the other Barker factors. See Balderas, 517 S.W.3d at 768; Russell, 90 S.W.3d at 872.
Nevertheless, a delay that is sufficient to trigger a Barker analysis does not necessarily
weigh heavily against the State. In deciding that question, we must “consider the extent to which
that delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.”
Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002). The eight-to-nine-month delay
at issue here “just exceeds the minimum needed to trigger the other Barker factors[.]” State v.
Slack, 629 S.W.3d 735, 739–40 (Tex. App.—San Antonio 2021, no pet.) (concluding eleven-
month delay, while presumptively unreasonable, did not weigh heavily in favor of finding speedy
trial violation). This factor therefore does not weigh heavily against the State. Id.; State v. Fisher,
198 S.W.3d 332, 338 (Tex. App.—Texarkana 2006, pet. ref’d) (concluding ten-month delay
should not “be accorded more than a slight weight against the State”).
because Montez has not argued that the trial court erred by concluding it lacked jurisdiction to rule on her first speedy
trial motion, we do not consider that question.
3
During the hearing on Montez’s motion, the State represented, “The case is set for trial tomorrow. . . . The state is
ready right now.” The case did not proceed to trial because Montez pleaded no contest on the same day the trial court
denied her speedy trial motion.
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Reasons for Delay
In assessing the reasons for the delay, “we assign different weights to different reasons.”
Balderas, 517 S.W.3d at 768. “A deliberate attempt to delay the trial in order to hamper the defense
should be weighted heavily against the government.” Barker, 407 U.S. at 531. “A more neutral
reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless
should be considered since the ultimate responsibility for such circumstances must rest with the
government rather than with the defendant.” Id. In contrast, “[d]elay caused by either the defendant
or his counsel weighs against the defendant.” Balderas, 517 S.W.3d at 768. “In 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.” Dragoo v. State, 96 S.W.3d 308,
314 (Tex. Crim. App. 2003).
Here, the parties agree the State did not offer a reason for the delay. Additionally, there is
nothing in the evidence to support a finding that Montez caused the delay. This factor therefore
weighs against the State, but not heavily. See id.Defendant’s Assertion of Right to Speedy Trial
“The third Barker factor—the defendant’s assertion of [her] right to a speedy trial—is
entitled to strong evidentiary weight in determining whether the defendant has been deprived of
that right.” Balderas, 517 S.W.3d at 771. “The defendant has no duty to bring [her]self to trial;
that is the State’s duty. But a defendant does have the responsibility to assert [her] right to a speedy
trial.” Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008) (footnote omitted). “A
defendant’s lack of a timely demand for a speedy trial indicates strongly that [s]he did not really
want one.” Balderas, 517 S.W.3d at 771.
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Even when a defendant timely complains of a speedy trial violation, a motion that seeks
dismissal instead of a 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. “This is not to say, however,
that asking only for dismissal will result in a ‘waiver,’ while seeking a speedy trial and, in the
alternative, a dismissal, would preserve the claim.” Philips v. State, 650 S.W.2d 396, 401 (Tex.
Crim. App. 1983). “Each case must turn on its own facts, and the particular relief a defendant seeks
is but one fact to consider.” Id. “If a defendant fails to first seek a speedy trial before seeking
dismissal of the charges, [s]he should provide cogent reasons for this failure.” Cantu, 253 S.W.3d
at 283.
As noted above, the record shows Montez first asserted a violation of her speedy trial right
six months after her arrest, and again eight months after her arrest. We conclude these invocations
of the right were timely under these circumstances. Additionally, both motions requested a trial
“within the next two weeks of this filing.”
But both motions also primarily sought an outright dismissal and requested a trial only
“[i]n the alternative” to that primary relief. See id. Indeed, on appeal, Montez describes those
filings as “motions for speedy trial and to dismiss” (emphasis added). While this alternative request
for relief does not automatically weigh against Montez, see Philips, 650 S.W.2d at 401, neither of
her motions offered any reasons why she failed to seek a trial before requesting dismissal. See
Cantu, 253 S.W.3d at 283. The trial court therefore could have reasonably found that she “was not
truly interested in a speedy trial[.]” See Laird v. State, 691 S.W.3d 30, 42 (Tex. App.—Austin
2023, pet. ref’d) (“[A]lthough [appellant] was persistent in filing pro se motions for speedy trial,
it is significant that most of his filings requested in the alternative that his case be dismissed.”);
see also Philips, 650 S.W.2d at 401.
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In short, some evidence on this factor supports Montez’s claim of a speedy trial violation,
while other evidence detracts from that claim. Accordingly, this factor does not weigh in favor of
either Montez or the State.
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. This prong requires us to “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. While a defendant bears the burden “to make some showing of prejudice,”
she need not prove actual prejudice. Id.Montez testified that she was incarcerated for two days immediately following her arrest;
she did not allege or present evidence that she suffered any anxiety or concern during the pretrial
process. She testified that she had been required to use an ignition-interlock device on her vehicle
since February 14, 2023, but she did not testify about any financial or emotional concerns
associated with the device. 4
In her speedy trial motion, Montez argued she “ha[d] a limited recollection of the incident
giving rise to the filing of the pending charges” and that “[t]his lack of memory significantly
hinder[ed] [her] defense” and “rendered [her] defense meaningless.” During the hearing on her
motion, she did not present any evidence to support these assertions. She argued, however, that
4
Because Montez was arrested for driving while intoxicated, the magistrate who released her on bail was required to
order her to use an ignition-interlock device unless he or she found “that to require the device would not be in the best
interest of justice.” See TEX. CODE CRIM. PROC. ANN. art. 17.441.
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she was prejudiced by the State’s delay in bringing her to trial because she lost the ability to offer
testimony from three former co-workers. She testified that she had worked with all three co-
workers on the day of her arrest, she was arrested after she left work that day, and she did not go
anywhere else between leaving work and her arrest. She further testified that if her three co-
workers were available to appear at trial, they would be able to discuss whether she appeared
intoxicated before she left work.
When a defendant seeks to establish prejudice based on lost testimony, she “must show the
witness was unavailable at the time of trial, the testimony that would have been offered was
relevant and material to the defense, and due diligence was used to locate the witness for trial.”
Russell, 90 S.W.3d at 873. We will assume without deciding that Montez’s testimony showed her
three co-workers’ testimony would have been relevant and material to her defense. Her testimony
also established, however, that she did not make any effort to find those individuals to testify on
her behalf. Montez testified that she did not know how to contact the co-workers because she and
they had all left their employment at the restaurant where they worked together, she did not know
their last names, and she did not have their contact information. But she also conceded that she did
not ask her former boss if he knew how to contact the three co-workers. 5 Based on this testimony,
the trial court could have reasonably found Montez failed to establish that she used due diligence
to locate the three co-workers. See Marquez v. State, 165 S.W.3d 741, 750 (Tex. App.—San
Antonio 2005, pet. ref’d). The trial court also could have reasonably found Montez did not satisfy
her burden to show they were unavailable. See id. We conclude this factor weighs against a finding
of a speedy trial violation. See, e.g., Voda v. State, 545 S.W.3d 734, 744–45 (Tex. App.—Houston
[14th Dist.] 2018, no pet.).
5
Montez testified that she did not interact with her former boss on the day of her arrest.
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Balancing the Factors
Having outlined the evidence relevant to the four Barker factors, “we must now balance
them.” Balderas, 517 S.W.3d at 773. And we must do so “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. (internal quotation marks omitted).
Weighing in favor of finding a violation of Montez’s speedy trial right are the facts that the
delay was presumptively prejudicial, she asserted her right to a speedy trial relatively quickly, and
the State did not offer a reason for the delay. See Zamorano, 84 S.W.3d at 654. But the delay
extended only slightly beyond the bare minimum necessary to trigger a Barker analysis. See Slack,
629 S.W.3d at 739–40. Moreover, the record supports a finding that Montez sought an outright
dismissal rather than a speedy trial. See Cantu, 253 S.W.3d at 283. Finally, the trial court could
have reasonably concluded that Montez did not show she was prejudiced by the delay. See Voda,
545 S.W.3d at 744–45.
We hold that the four factors, balanced together, weigh against finding a violation of
Montez’s right to a speedy trial. See Slack, 629 S.W.3d at 742. We therefore overrule Montez’s
sole issue on appeal.
CONCLUSION
We affirm the trial court’s judgment.
Beth Watkins, Justice
DO NOT PUBLISH
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