Marie Elaine Black v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00057-CR
___________________________
MARIE ELAINE BLACK, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 3
Denton County, Texas
Trial Court No. CR-2021-01426-C
Before Sudderth, C.J.; Birdwell and Walker, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Marie Elaine Black appeals her conviction for the Class A
misdemeanor offense of driving while intoxicated with a prior conviction. See Tex.
Penal Code Ann. §§ 49.04, 49.09(a). The sole issue she raises on appeal is whether the
trial court erred by denying her motion to dismiss on speedy trial grounds. See U.S.
Const. amends. VI, XIV. We will affirm.
I. Timeline
Because in evaluating a speedy trial claim, the timeline of events is key, 1 we begin
with the pertinent chronology of events:
• December 14, 2019: Black was arrested for DWI by the Corinth Police
Department, and a sample of her blood was drawn.
• December 16, 2019: Black bonded out of jail. As a condition of her bond, she
was required to install an ignition interlock system in her car.
• December 23, 2019: Black’s attorney filed a letter of representation with the
Denton County Clerk’s office using Black’s warrant number as the point of
reference since Black’s DWI case had not yet been filed. In the letter, the
attorney stated, “We request speedy trial.” This letter was served on two
1
See, e.g., Cochnauer v. State, No. 02-19-00165-CR, 2021 WL 3931914, at *1–2 (Tex.
App.—Fort Worth Sept. 2, 2021, no pet.) (mem. op., not designated for publication)
(listing timeline of relevant facts for speedy trial analysis).
2
individuals at the Denton County District Attorney’s Office, although their role
in prosecuting the case against Black was never explained.2
• January 29, 2020: The police department hand-delivered Black’s blood sample
to a Department of Public Safety (DPS) laboratory to test the alcohol
concentration level.
• July 7, 2020: A DPS analyst finished testing Black’s blood sample.
• July 22, 2020: DPS sent the blood test results to the Corinth Police Department.
• July 27, 2020: The police department sent Black’s case to the Denton County
District Attorney’s Office.3
• October 20, 2020: The district attorney’s office created Black’s file and assigned
the case to a prosecutor for review.
• January 14, 2021: A different prosecutor—not the attorney who generally
handled DWI intake, and neither of the individuals who had been served with
2
What is clear from the record is that the two attorneys who received service in
2019 were not the attorneys who filed the complaint and information, nor were they
the attorneys who appeared at Black’s speedy trial hearing, nor did they testify at that
speedy trial hearing. Furthermore, Black’s electronic service records showed that
neither of the two attorneys opened the document.
3
A sergeant with the Corinth Police Department later testified that his
department had an agreement with the district attorney’s office to “keep things simpler”
by waiting to send the office cases until after the police department had received test
results from the DPS lab.
3
the December 2019 letter of representation—reviewed Black’s case and signed
the complaint.
• February 2, 2021: Black’s attorney sent the district attorney’s office a second
letter of representation, identical to the one he had initially filed in December
2019, but this time it was mailed to the elected criminal district attorney via
certified mail.
• February 23, 2021: Black filed a one-sentence motion for speedy trial with the
county clerk, 4 despite the fact that the DWI charges had not yet been filed against
her, and therefore, the county clerk had not yet opened a file related to Black’s
December 14, 2019 arrest. Black electronically served the motion on the elected
criminal district attorney but he never opened the file. Black also served the
motion on another individual at the district attorney’s office whose role in the
case is unclear5 but who, according to the electronic records, did open the file.
4
The entirety of Black’s speedy trial motion stated: “Now comes Marie Elaine
Black, Defendant, and files this request for speedy trial under the 6th Amendment to
the US Constitution, Article 1 Section 10 of the Texas Constitution[,] and Article 1.05
of the Texas Code of Criminal Procedure.”
5
The individual served with the February 2021 speedy trial motion was not one
of the two people who had been served with the December 2019 letter of
representation, nor was she the DWI intake attorney, nor was she the person who had
signed Black’s complaint.
4
• March 5, 2021: The district attorney’s office filed the complaint and information,
formally charging Black with the December 2019 DWI offense.6 See Tex. Penal
Code Ann. §§ 49.04, 49.09(a).
• March 26, 2021: Black filed a single-sentence motion to dismiss her case on
speedy trial grounds:
COMES NOW, MARIE ELAINE BLACK, through her Attorney of
Record . . . and asks the Court to dismiss this Cause and would show in
support:
The State has violated Defendant’s Right to a Speedy Trial in
violation of the 6th Amendment to the US Constitution and in violation
of Article 1 Section 10 of the Texas Constitution.
• April 6, 2021: Black requested that her case be set for an announcement hearing
in May.
• April 20, 2021: The trial court heard Black’s speedy trial motion to dismiss. Five
witnesses testified: a DPS forensic analyst, a sergeant with the Corinth Police
Department, the intake prosecutor assigned to handle DWIs for the district
attorney’s office, a records custodian for Black’s trial counsel’s law office, and
Black herself. At the close of the hearing, the State indicated that it would “set
6
Black’s information alleged two enhancements: a blood alcohol concentration
of 0.15 or more and a prior conviction for DWI. Either would have been sufficient to
enhance Black’s offense to a Class A misdemeanor, see Tex. Penal Code Ann.
§§ 49.04(d), 49.09(a), although using the prior conviction as an enhancement required
“a minimum term of confinement of 30 days,” id. § 49.09(a). Black’s judgment reveals
that she pleaded to “DWI 2ND.”
5
this case at the forefront of [its] trial docket to ensure [that] it [wa]s tried as soon
as . . . allow[ed].” The trial court ordered the parties to submit briefs on the
speedy trial issue.
• April 28, 2021: The parties filed their briefs with the trial court.
• May 5, 2021: The trial court denied Black’s speedy trial motion and made
findings of fact and conclusions of law.
• May 19, 2021: Black waived her right to a jury trial, pleaded nolo contendre to
the offense, and conceded the enhancement. The trial court sentenced her,
probated the sentence for 20 months, and placed Black on community
supervision for that period of time.
On appeal, Black argues that the trial court erred by denying her motion to
dismiss because the State violated her Sixth Amendment right to a speedy trial. 7 See
U.S. Const. amend VI.
7
In the trial court, Black asserted her right to speedy trial under both the United
States and Texas Constitutions. On appeal, though, she only asserts her right under the
United States Constitution. But see Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim.
App. 2002) (“The Texas constitutional speedy trial right exists independently of the
federal guarantee, but [the Court of Criminal Appeals] has traditionally analyzed claims
of a denial of the state speedy trial right under the [federal] factors established in Barker
v. Wingo.”).
6
II. The Law Regarding the Right to a Speedy Trial
The Sixth Amendment to the United States Constitution guarantees the accused
in all criminal prosecutions the right to a speedy trial.8 Barker v. Wingo, 407 U.S. 514,
515, 92 S. Ct. 2182, 2184 (1972); see U.S. Const. amend VI. The Supreme Court has
qualified the broad sweep of the Constitution’s Speedy Trial Clause by analyzing the
issue in terms of four factors: (1) “whether delay before trial was uncommonly long”;
(2) “whether the government or the criminal defendant is more to blame for that delay”;
(3) “whether, in due course, the defendant asserted h[er] right to a speedy trial”; and
(4) “whether [s]he suffered prejudice as the delay’s result.” Zamorano, 84 S.W.3d at 647–
48 (quoting Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 2690 (1992)); see
Barker, 407 U.S. at 530, 92 S. Ct. at 2192; State v. Lopez, 631 S.W.3d 107, 113 (Tex. Crim.
App. 2021). All four of these factors—known as the Barker factors—are related, and
no factor alone is dispositive. Barker, 407 U.S. at 533, 92 S. Ct. at 2193.
“[T]he length of the delay is, to some extent, a triggering mechanism” for the
balancing test as a whole. Lopez, 631 S.W.3d at 113 (quoting Dragoo v. State, 96 S.W.3d
308, 313 (Tex. Crim. App. 2003)). “Until there is some delay which is presumptively
prejudicial, there is no necessity for inquiry into the other factors that go into the
balance.” Barker, 407 U.S. at 530, 92 S. Ct. at 2192; see Lopez, 631 S.W.3d at 113 (similar);
8
The right to a speedy trial is extended to the states by the Due Process Clause
of the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184
(1972); U.S. Const. amend. XIV.
7
Dragoo, 96 S.W.3d at 313–14. If the length of delay is presumptively prejudicial, the
State has the burden to justify the delay. Harper v. State, 567 S.W.3d 450, 459 (Tex.
App.—Fort Worth Jan. 10, 2019, no pet.); see Emery v. State, 881 S.W.2d 702, 708 (Tex.
Crim. App. 1994). The defendant, in turn, has the burden to both prove her diligent
assertion of her right to a speedy trial and to show prejudice. Cantu v. State, 253 S.W.3d
273, 280 (Tex. Crim. App. 2008). But the defendant’s burden on these latter two factors
varies inversely with the State’s culpability for the delay; the greater the bad faith or
official negligence on the part of the State, the less a defendant must show assertion of
the right or prejudice. Cantu, 253 S.W.3d at 280–81; Bender v. State, No. 02-17-00342-
CR, 2018 WL 4401745, at *5 (Tex. App.—Fort Worth Aug. 23, 2018, no pet.) (mem.
op., not designated for publication).
III. Standard of Review
In reviewing a trial court’s ruling on a speedy trial dismissal motion, we apply a
bifurcated standard of review: an abuse of discretion standard for the factual
components and a de novo standard for the legal components. Gonzales v. State, 435
S.W.3d 801, 808–09 (Tex. Crim. App. 2014); Zamorano, 84 S.W.3d at 648. Under this
standard, we defer to the trial court’s resolution of disputed facts and to its right to
draw reasonable inferences based on those facts. Gonzales, 435 S.W.3d at 808–09; Cantu,
253 S.W.3d at 282. But the balancing test as a whole is a purely legal question. Cantu,
253 S.W.3d at 282.
8
IV. Analysis
In her sole point, Black argues that the trial court erred by denying her motion
to dismiss 9 because the Barker factors weigh in her favor: according to Black, (1) the
length of the delay was presumptively prejudicial;10 (2) the delay was attributable to
governmental entities—the police, DPS, and the district attorney’s office; (3) Black
asserted her right to a speedy trial on multiple occasions; and (4) as a result of the delay,
Black was required to maintain an ignition interlock system for a prolonged period of
time, causing her financial and emotional stress.
A. Length of Delay
At the outset, Black was required to make a threshold showing that the time
between accusation and trial was presumptively prejudicial. Gonzales, 435 S.W.3d at
808; Zamorano, 84 S.W.3d at 648–49. An “accusation” occurs when the defendant is
either arrested or formally charged with a crime. Gonzales, 435 S.W.3d at 809. Both
9
Black’s statement of the case indicates that she is appealing a motion to
suppress: “Appellant filed a [m]otion to [s]uppress on October 6, 2016[,] . . . [and] filed
a notice of appeal of the trial court’s decision on the motion to suppress.” But no
motion to suppress was filed in this case, and we glean from the record that she is
actually appealing the denial of her speedy trial motion.
10
Black argues that the delay between her arrest and charge was presumptively
prejudicial, but because the relevant end date is the date of Black’s plea, we will examine
the period of delay between Black’s arrest and her plea. Lopez, 631 S.W.3d at 114
(describing length of delay as “the interval between accusation and trial” (quoting
Doggett, 505 U.S. at 651–52, 112 S. Ct. at 2690)); Fuller v. State, 624 S.W.3d 855, 863 (Tex.
App.—Fort Worth 2021, pet. ref’d) (op. on reh’g) (“Our calculation begins at the time
[the defendant] was arrested and ends at the time of trial.”).
9
sides agree that Black was first “accused” of DWI on the date of her arrest—December
14, 2019. And it is also undisputed that the period between the date of Black’s arrest
until her plea spanned more than 17 months.
Although there is no set amount of time that is necessary to trigger the Barker
analysis, the Court of Criminal Appeals has “held that a delay of four months is not
sufficient while a seventeen-month delay”—such as the delay at issue here—“is
[sufficient].” Cantu, 253 S.W.3d at 281 (reciting Barker rules in an enhanced DWI case);
see Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim. App. [Panel Op.] 1983) (holding that
17-month delay between time appellant was first indicted for rape and time of trial was
sufficient to trigger Barker analysis).11 Therefore Black has met her threshold burden
to show that the delay she complains of is sufficiently lengthy and “presumptively
prejudicial” to trigger an analysis of the remaining Barker factors. See Cantu, 253 S.W.3d
at 281; Phillips, 650 S.W.2d at 399.
Even a delay far less than 17 months has been held sufficient to trigger the
11
Barker analysis in other enhanced DWI cases. See State v. Page, No. 05-18-01391-CR,
2020 WL 1899453, at *6 (Tex. App.—Dallas Apr. 17, 2020, no pet.) (mem. op., not
designated for publication) (holding delay of eight months was “not an extraordinary
delay” but was “just past the minimum needed to trigger a Barker analysis” in
misdemeanor second-offense DWI case); State v. Burckhardt, 952 S.W.2d 100, 102–03
(Tex. App.—San Antonio 1997, no pet.) (holding that 14-month delay from DWI arrest
to dismissal hearing “necessitate[d] an analysis of the remaining Barker factors”); see also
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.”); Balderas v. State, 517
S.W.3d 756, 768 (Tex. Crim. App. 2016) (noting that “courts deem delay approaching
one year to be ‘unreasonable enough to trigger the Barker [i]nquiry’” (quoting Dragoo, 96
S.W.3d at 314)).
10
B. Reasons for the Delay
“If a presumptively prejudicial delay has occurred, the State bears the initial
burden of justifying the delay.” Harper, 567 S.W.3d at 459; see Emery, 881 S.W.2d at 708.
When engaging in an analysis of this second Barker factor, a sliding scale applies with
different weights assigned to different reasons for the delay. Barker, 407 U.S. at 531, 92
S. Ct. at 2192; see Balderas, 517 S.W.3d at 768. There are three categories of reasons on
this sliding scale: a deliberate reason, a neutral reason, and a valid reason.
As to the first category, “[d]eliberate conduct by the State will, of course, weigh
heavily against the State.” Fuller, 624 S.W.3d at 864; see Balderas, 517 S.W.3d at 768. For
the second category—delays resulting from a non-deliberate or otherwise neutral
reason, such as negligence or overcrowded courts—these delays will still weigh against
the State, but less heavily than would deliberate conduct. Barker, 407 U.S. at 531, 92
S. Ct. at 2192; Fuller, 624 S.W.3d at 864. If the State fails to give a reason for the delay,
this is tantamount to a neutral reason; the factor will weigh against the State, but less
heavily than would deliberate conduct. See Dragoo, 96 S.W.3d at 314 (noting that in the
case of an unexplained delay, the court “may presume neither a deliberate
[delay] . . . nor a valid reason”). And, finally, if the delay resulted from a valid reason,
such as a missing witness, this factor does not weigh against the State at all. Fuller, 624
S.W.3d at 864.
We agree with Black that the delays here can be divided into four segments:
(1) the police department’s delay in delivering Black’s blood to DPS, (2) the delay in
11
testing at DPS, (3) the district attorney’s office’s delay in assigning an intake attorney to
review the case, and (4) the district attorney’s office’s delay in filing formal charges. Cf.
Murphy v. State, 280 S.W.3d 445, 453 (Tex. App.—Fort Worth 2009, pet. ref’d) (parsing
a seven-year delay into three distinct time periods).
1. Delayed Delivery by the Police Department: 46 Days
Beginning with the police department’s 46-day delay in delivering Black’s blood
sample to DPS, this delay weighs against the State, but not heavily. At the speedy trial
hearing, a sergeant with the Corinth Police Department explained that the 46-day delay
was caused by a six-week medical leave taken by the administrative assistant who would
have normally hand-delivered blood samples to DPS to preserve the chain of custody.
Although the sergeant had temporarily “tak[en] over her job” during her leave, he
testified that he did not deliver Black’s blood sample because he was “not able to go to
the lab during that time.” He offered no other explanation for the 46-day delay, and
when questioned by Black’s counsel, the sergeant acknowledged that he could have
mailed the blood to the lab.
Short-staffing is an example of a neutral reason for delay that should be weighed
slightly against the State. Cf. Strunk v. U.S., 412 U.S. 434, 436, 93 S. Ct. 2260, 2262
(1973) (reiterating in dicta that “[u]nintentional delays caused by . . . understaffed
prosecutors are among the factors to be weighed [against the State but] less heavily than
intentional delay”); Barker, 407 U.S. at 531, 92 S. Ct. at 2192 (explaining that neutral
reasons such as overcrowded courts weigh against the State “since the ultimate
12
responsibility for such circumstances must rest with the government rather than with
the defendant”); cf. also Santibanez v. State, 717 S.W.2d 326, 331 (Tex. Crim. App. 1986)
(rejecting argument that “lack of sufficient personnel” in district attorney’s office
qualified as an exceptional circumstance under the former Speedy Trial Act). Although
such delay is not deliberate, “[t]he government must bear responsibility for failing to
provide adequate resources to law-enforcement agencies.” Ex parte Martin, 33 S.W.3d
843, 846–47 (Tex. App.—Austin 2000) (op. on reh’g) (applying speedy trial test in
review of dismissal under Tex. Code Crim. Proc. Ann. art. 32.01, addressing delay due
to short-staffing at police department, and commenting that defendant “could not be
expected to suffer an indefinite delay of her case because the police department was
without a secretary”), pet. dism’d, improvidently granted, 46 S.W.3d 932 (Tex. Crim. App.
2001); see State v. Fisher, 198 S.W.3d 332, 338–39 (Tex. App.—Texarkana 2006, pet.
ref’d) (quoting Martin in speedy trial case and addressing State’s delay in submitting
drugs to lab). Although we recognize a difference between a temporarily absent
employee and chronic short-staffing, that difference may begin to blur when the
allegedly temporary absence continues for an extended period of time and the absent
employee’s responsibilities are piled on top of another colleague’s job duties.
Such was the case here. The sergeant who took over the absent assistant’s blood-
delivery duties already had a job of his own, and for unexplained reasons, he was not
able to fulfill the assistant’s responsibilities by making lab deliveries during her six-week
absence. For all intents and purposes, this is a short-staffing situation—a non-
13
deliberate, neutral reason under the Barker analysis—and the police department’s delay
weighs against the State, although it weighs less heavily than would deliberate conduct.
See State v. Conatser, 645 S.W.3d 925, 929 (Tex. App.—Dallas 2022, no pet.) (holding
that a “delay involving managing the State’s resources is not unlike one caused by a
backlog of cases or a shortage of staff[ and] it weighs slightly against the State”).
2. Delayed Testing at DPS: 175 Days
The delay at DPS also weighs against the State, but not heavily. This delay
occurred from the time that DPS received Black’s blood sample on January 29, 2020,
to the date it delivered the blood alcohol content analysis back to the police department
on July 22, 2020—a total delay of 175 days. The State contends that this delay was
caused by COVID-19, but the DPS analyst’s testimony shows otherwise.
At the speedy trial hearing, the DPS analyst who tested Black’s blood minimized
the impact of COVID-19 on her job. She testified that the lab continued to work
throughout the pandemic and “didn’t completely shut down” at any time but merely
“slow[ed] up” for a “few months” while the analysts “were sent home [to work]
part[]time.”12 According to the analyst, well before the test was completed—by “May
or June” of 2020—DPS analysts had returned and were working fulltime. 13 So, based
It is unclear whether, during the “slow up,” the analysts worked parttime at the
12
laboratory, worked parttime from their homes, or worked fulltime but split their time
between the laboratory and their homes.
In its findings of fact, the trial court stated that the DPS analyst had testified
13
that “full staff did not return [from the pandemic] until this month meaning April
14
on the analyst’s testimony, even if the DPS analysts immediately began working
parttime on March 13, 2020, when the Texas Governor issued a disaster proclamation
regarding COVID, the lab’s “slow up” could have lasted no more than two to three
months—until “May or June.” See The Governor of the State of Tex., Proclamation
41-3720, 45 Tex. Reg. 2094, 2094–95 (2020). And even then, the analysts were still
working; the lab did not shut down. At most, the pandemic was a contributing factor
during approximately 90 of the 175 days (roughly one-half) of DPS’s delay. 14
Instead, the DPS analyst attributed the primary reasons for delay to short-staffing
and backlog. She explained that the lab had been short-staffed in 2020 and although it
should normally take “maybe, about a week” to conduct the test and send back a report,
in 2020 the lab had a backlog of 3,000 to 4,000 cases, making a 175-day delay “normal.”
2021.” The analyst actually testified, though, that her lab returned from the pandemic
after just “a few months,” in “May or June” 2020, but that the lab was short-staffed and
did not have “five full-time analysts” on staff “until this month,” i.e., April 2021.
14
Cf. Conatser, 645 S.W.3d at 929–30 (holding that delay after filing case was
“caused by the onset of a pandemic [and] c[ould ]not be attributed as fault to the State”
when the defendant acknowledged that “no jury trials were occurring” during the five-
month period of delay); Ex parte Sheffield, 611 S.W.3d 630, 634 (Tex. App.—Amarillo
2020) (noting that COVID-19 restrictions were subject to constitutional limitations and
reversing denial of motion for speedy trial because the trial court had stated that “the
State’s ready but . . . the Office of Court Administration has instructed me that I’m not
allowed to conduct any jury trials until they let me know”), pet. granted, No. PD-1102-
20, 2021 WL 5561540 (Tex. Crim. App. Nov. 24, 2021) (order) (not designated for
publication).
15
In other words, it was short-staffing, not the pandemic, that caused the DPS lab to lag
six months behind schedule.
As explained above, short-staffing and backlog are neutral reasons and weigh
against the State, though not heavily. See Sample v. State, No. 03-19-00817-CR, 2022 WL
2960241, at *4 (Tex. App.—Austin July 27, 2022, no pet. h.) (op. on reh’g) (concluding
that “[t]he main reason for the delay seems to have been problems in the DNA testing
system, which is the type of problem that weighs against the State but not heavily”);
Fuller, 624 S.W.3d at 865 (concluding that three-year delay in DNA testing in capital
murder case “weigh[ed] against the State but not heavily” because the delay was not
deliberate); Giles v. State, No. 13-17-00238-CR, 2019 WL 1186880, at *3 (Tex. App.—
Corpus Christi–Edinburg Mar. 14, 2019, pet. ref’d) (mem. op., not designated for
publication) (concluding that delay caused by backlog at drug lab weighed against the
State but not heavily). So, as with the police department’s delay in delivering the blood
sample to DPS, the delay at DPS also weighs against the State, but not heavily.
3. Delayed Assignment at the District Attorney’s Office: 85 Days
The next chunk of Black’s 17-month delay occurred while the case sat in the
district attorney’s system awaiting the assignment of an intake attorney. On July 27,
2020, after receiving the lab results from DPS, the police department referred Black’s
16
case to the district attorney’s office.15 But the district attorney’s office waited 85 days—
until October 20—to create a file or assign Black’s case to an intake attorney for review.
This 85-day delay was not explained.16 The State’s failure to give a reason for this delay
weighs slightly against the State. See Dragoo, 96 S.W.3d at 314 (holding that if the State
fails to give a reason for delay, the factor will be considered neutral and weigh slightly
against the State).
4. Delayed Filing at the District Attorney’s Office: 136 Days
The final delay came after the case had been assigned to an intake attorney for
review. Although the district attorney’s office assigned the case on October 20, the
office waited another 136 days, until March 5, 2021, to file the case. The State tried to
pin the blame for this delay on COVID-19, conceding to the trial court that, “[p]re-
COVID, yes, . . . it would have needed to be filed much sooner than five months.”
DPS emailed the Corinth Police Department the lab results on July 22, 2020,
15
but the department did not send Black’s case to the district attorney’s office until July
27, 2020. The police department offered no explanation for this five-day delay.
16
At the speedy trial hearing, the State argued that it did not receive the lab results
until October 13, which is why the case had not been assigned to an intake attorney.
But the State offered no evidence to support this position, and the trial court’s findings
of fact indicate that it did not find the State’s argument persuasive. See Kelly v. State, 163
S.W.3d 722, 728 (Tex. Crim. App. 2005) (recognizing in speedy trial case that “the trial
court is permitted to disbelieve evidence so long as there is a reasonable articulable basis
for doing so”). Moreover, even in its arguments to the trial court, the State
acknowledged that it “d[id] not have [a] specific reason” for its delay.
17
But the State offered no evidence to support its COVID-19 excuse. There was
no evidence that between October 2020 and March 2021 the intake attorneys were
unable to work due to COVID-19 infections. Nor was there was any evidence that the
intake attorneys were on leave caring for loved ones infected with COVID-19. Cf.
Conatser, 645 S.W.3d at 929–30 (attributing delay to COVID-19 where defendant
acknowledged that, even if he had wanted a trial, no jury trials were occurring during
the relevant period of delay).
Rather, the State explained in its closing argument that “during the global
pandemic, unfortunately, with [the district attorney’s office] having people working
from home and not all being in the office at the same time, . . . five months is [not] a
long delay.” Even if we were to consider this unsworn argument as testimonial
evidence, it would not advance the State’s position. 17 The gist of the State’s argument
17
The misdemeanor intake prosecutor who testified shed no more light on this
delay but merely referenced a “backlog in [the district attorney’s] office” during the
relevant period of time. Again, backlog is a neutral reason that weighs against the State,
though not heavily. See Sample, 2022 WL 2960241, at *3–4; Fuller, 624 S.W.3d at 864;
Fisher, 198 S.W.3d at 339; cf. Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003)
(holding that “a crowded court docket is not a valid reason for delay and must be
counted against the State, although not heavily”).
The intake attorney was not the attorney who had signed Black’s complaint and
filed her case, nor was she the attorney prosecuting Black’s case at the hearing. And
when the trial court asked the attorney prosecuting Black’s case—who had not been
sworn as a witness—to explain the delayed filing, she stated that she believed the
attorney who had signed the complaint “did not receive the case in October of 2020”
but instead “received it sometime in January of 2021 because that is when [the district
attorney’s office] started having all ADAs helping out with intake because they were so
backlogged.” The prosecutor explained that Black’s case “most likely was assigned to
18
was that during the pandemic, employees who were allowed to work from home were
not able to perform their jobs as well as they would have if they had been working from
the office. The State did not argue—much less offer evidence—that a governmental
dictate required the district attorney’s office to allow employees to work from home
between October 20, 2020, and March 5, 2021. Cf. The Governor of the State of Tex.,
Exec. Order GA-18, 45 Tex. Reg. 2933, 2934–35 (2020) (issued Apr. 27, 2020,
providing for limited May 1, 2020 reopening of a variety of businesses as well as “[l]ocal
government operations” that “[we]re not already ‘essential services,’” and
recommending that businesses “work from home if possible” (emphasis added)); The
Governor of the State of Tex., Exec. Order GA-08, 45 Tex. Reg. 2271, 2271 (2020)
(issued Mar. 19, 2020, providing for continued operation of “critical infrastructure” and
“essential services” but limiting operation of nonessential businesses). Instead, the
district attorney’s office made a conscious choice to permit employees to work from
home during that time period, even though—at least according to the State’s argument
here—the employees working from home were unable to get their jobs done in a timely
fashion. The 136-day delay was not caused by COVID-19 but by the office’s decision
[the intake prosecutor who had testified] at the beginning,” but the prosecutor who had
filed the case probably “went in and got the case” because all of the assistant district
attorneys were “just grabbing stacks of them to work on in intake.” Cf. Lopez, 631
S.W.3d at 115 (rejecting allegedly implied finding of fact in speedy trial case because
“the only statements supporting th[e] conclusion were unsworn statements by counsel
for [the defendant] and thus not competent evidence”).
19
to permit nonproductivity. The district attorney’s office cannot make such a conscious
choice and then rely on that choice to deprive a defendant of her constitutional rights.
Overall, then, each of the four segments of delay weighs against the State, though
not heavily.
C. Assertion of the Right
While it is the State’s duty to bring the defendant to trial, the defendant bears the
burden to show that she timely asserted her right. Cantu, 253 S.W.3d at 280, 282–83;
see Barker, 407 U.S. at 529, 92 S. Ct. at 2191. Courts may “weigh the frequency and
force of the objections as opposed to attaching significant weight to a purely pro forma
objection.” Barker, 407 U.S. at 529, 92 S. Ct. at 2191; see Murphy, 280 S.W.3d at 454
(“Repeated requests for a speedy trial weigh heavily in favor of the defendant, while the
failure to make such requests supports an inference that the defendant does not really
want a trial, only a dismissal.”). And the defendant’s assertion of her speedy trial right
is entitled to “strong evidentiary weight.” Zamorano, 84 S.W.3d at 651.
Here, while Black asserted her right on four separate occasions, all four assertions
lacked force.
She first asserted her right to a speedy trial on December 23, 2019, nine days
after her offense. While this assertion occurred promptly after her arrest, see Sanchez v.
State, No. 01-17-00751-CR, 2018 WL 6377140, at *3 (Tex. App.—Houston [1st Dist.]
Dec. 6, 2018, no pet.) (mem. op., not designated for publication) (noting that
defendant’s assertion of his right to a speedy trial a month after his arrest was prompt),
20
it was halfhearted at best—a short pro forma sentence in her counsel’s letter of
representation with no citations or legal arguments and filed on the same day as two
other preliminary motions. See Barker, 407 U.S. at 529, 92 S. Ct. at 2191 (noting that a
court need not “attach[] significant weight to a purely pro forma objection”); State v.
Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App. 1999) (noting that the defendant’s “pro
forma request for a trial date in the waiver of arraignment form cannot be considered an
assertion of his right to a speedy trial”); Clarke v. State, 928 S.W.2d 709, 714 (Tex. App.—
Fort Worth Aug. 8, 1996, pet. ref’d) (op. on reh’g) (holding that the third Barker factor
weighed against the defendant in part because he “filed his motion for a speedy trial on
the same day he filed 32 other motions”). Plus, the letter was filed with the county clerk
even though it related to a case that had not yet been filed, and it was served on two
members of the district attorney’s office whose connection with Black’s case remained
unexplained. At the conclusion of the speedy trial hearing, Black’s counsel admitted
that he did not follow up on his letter of representation or call the district attorney’s
office to bring the speedy trial request to the office’s attention. The letter of
representation was thus a weak assertion of Black’s speedy trial right.
Black then waited more than a year to reassert her right to speedy trial before
raising it twice in February 2021. Cf. Vega-Gonzalez v. State, No. 03-19-00413-CR, 2020
WL 7051187, at *9–10 (Tex. App.—Austin Dec. 2, 2020, no pet.) (mem. op., not
designated for publication) (holding that third Barker factor weighed against the
defendant in part because, although he invoked his right to a speedy trial twice, he
21
waited to do so until more than two years after his arrest and then did not reassert the
right until he moved to dismiss). And these two assertions were likewise pro forma.
One assertion was made by forwarding a copy of Black’s counsel’s year-old letter
of representation to the elected criminal district attorney via certified mail. And Black’s
counsel acknowledged at the speedy trial hearing that he “highly doubt[ed] that [the]
letter made it from [the elected criminal district attorney] to anybody in intake.” The
other was a one-sentence motion that was (again) filed with the county clerk before
Black’s case was filed18 and served on the elected criminal district attorney and on
another individual who had no explained connection to the case. 19 Cf. State v. Flores,
951 S.W.2d 134, 141–42 (Tex. App.—Corpus Christi–Edinburg 1997, no pet.)
(detailing defendant’s actions during four-year delay, including defendant’s testimony
that he asked two attorneys about strategies to expedite his case and repeatedly called
the district attorney’s office); see also Cantu, 253 S.W.3d at 283 & n.47 (commenting that
18
Generally, “one cannot file a motion for a speedy trial until formal charges are
made” because there is no case in which to file the motion and no trial court responsible
for hearing it. Cantu, 253 S.W.3d at 283. Nonetheless, Black filed a one-sentence speedy
trial motion with the county clerk before she was formally charged by information. It
is unclear what the county clerk did—or could have done—with the motion between
February 23, 2021, the day it was filed with the clerk and the day Black was formally
charged, on March 5, 2021.
19
Black’s documentation also reveals that her counsel made multiple speedy trial
motions in other cases on the same date—February 23—that he filed Black’s speedy
trial motion. All six speedy trial motions were also served on the same two
individuals—the elected criminal district attorney and the county employee with an
unidentified role.
22
“[a]lthough one cannot file a motion for a speedy trial until formal charges are made,
the right to one can be asserted in other ways” and citing Flores as an example). Neither
of these two assertions contained any case-specific arguments or legal analysis. And as
before, Black did not call the district attorney’s office to follow up on any of her filings,
to check the status of her case, or to communicate her urgency.
Thus, as with her initial speedy trial request, Black’s two February 2021 speedy
trial requests lacked force.
Soon thereafter, in March 2021, Black was formally charged. But rather than
seeking a trial date or an immediate hearing on her previous speedy trial requests—
either of which would have signaled Black’s sincere desire to have a speedy trial—she
filed a motion to dismiss. Cf. Zamorano, 84 S.W.3d at 651–52 (distinguishing appellant’s
repeated assertions of the right from “a case where [the] appellant never asked for a
hearing”). Requesting a dismissal instead of an actual trial “generally weakens a speedy
trial claim because it shows a desire to have no trial instead of a speedy one.” Murphy,
280 S.W.3d at 454; see Fuller, 624 S.W.3d at 866 (holding that appellant’s final assertion
of his right weakened his speedy trial claim because he sought dismissal of the
indictment); Hausauer v. State, No. 04-04-00505-CR, 2005 WL 954376, at *3 (Tex.
App.—San Antonio Apr. 27, 2005, no pet.) (mem. op., not designated for publication)
(holding that defendant’s “motivation in asking for a dismissal, rather than a prompt
trial, weighs against him”); see also Stewart v. State, Nos. 05-04-01718-CR, 05-05-00162-
CR, 2005 WL 1607639, at *3 (Tex. App.—Dallas July 11, 2005, no pet.) (not designated
23
for publication) (concluding that “appellant’s motion to dismiss rather than [her]
demand for a speedy trial[—]one month after charges were filed[—]attenuates her claim
and weighs in favor of the State”).
Black’s motion to dismiss came just three weeks after she had been formally
charged. See Stewart, 2005 WL 1607639, at *3 (discounting appellant’s assertion of
speedy trial right when appellant filed motion to dismiss one month after she was
charged). And even while the motion was pending, Black’s only request for a court
proceeding came in the form of a request to have her case set for an announcement
hearing, not a trial.
Ultimately then, Black asserted her right four times, but all four assertions lacked
force and were attenuated by her motion to dismiss. Thus, Black’s assertions of her
right to a speedy trial are not entitled to strong evidentiary weight.20
20
Moreover, less than one month after the trial court ruled that Black’s right to a
speedy trial had not been violated, she pleaded nolo contendre and was convicted and
sentenced. This too impairs Black’s claim by questioning her desire to obtain a speedy
trial. See Ingram v. State, No. 04-09-00249-CR, 2010 WL 1609696, at *4 (Tex. App.—
San Antonio Apr. 21, 2010, no pet.) (mem. op., not designated for publication) (“[T]he
acceptance of a plea-bargain agreement on the trial date, after the denial of a speedy
trial motion, impairs the appellant’s speedy trial claim by demonstrating that his
motivation is not a speedy trial, but rather to avoid trial.”); Starks v. State, 266 S.W.3d
605, 612 (Tex. App.—El Paso Sept. 25, 2008, no pet.) (holding that, although the
appellant asserted his right, “the factor is substantially weakened by [his] numerous
requests for dismissal of the case in his pro se motions and then his ultimate decision to
plead guilty when his trial arrived”); Hausauer, 2005 WL 954376, at *3 (holding, where
defendant was charged with a second DWI, that defendant’s “acceptance of a plea
bargain agreement at the next trial setting impairs his claim by further demonstrating
that his motivation was not to obtain a speedy trial, but rather to avoid a trial”). But
we do not consider the substance of Black’s plea because we must review the trial
24
D. Prejudice
The final Barker factor examines whether and to what extent Black was
prejudiced by the delay. Cantu, 253 S.W.3d at 285. The defendant has the initial burden
to make some showing of prejudice, Munoz, 991 S.W.2d at 826, and if a defendant makes
a prima facie showing of prejudice, the burden shifts to the State to prove that the
defendant “suffered no serious prejudice beyond that which ensued from the ordinary
and inevitable delay.”21 Id. (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim.
App. 1973)).
court’s ruling “in light of the arguments, information, and evidence that was available
to the trial court at the time it ruled.” Dragoo, 96 S.W.3d at 313 (chastising lower court
for considering speedy trial arguments not made to trial court); see Gonzales, 435 S.W.3d
at 809 (noting that “a reviewing court should not consider in its deliberations record
evidence that was not before the trial court when it made its ruling”).
21
Additionally, “[i]n certain instances, the length of delay may be so excessive that
it ‘presumptively compromises the reliability of a trial in ways that neither party can
prove or identify,’” and the “defendant is absolved from the requirement to
demonstrate prejudice” because unless the defendant acquiesced in the delay, prejudice
is presumed. Gonzales, 435 S.W.3d at 812–15 (quoting Shaw, 117 S.W.3d at 890); see
Doggett, 505 U.S. at 655–56, 112 S. Ct. at 2693. Black does not argue that her 17-month
delay was so excessive as to absolve her of the requirement to demonstrate prejudice,
nor do we find the delay to be so excessive. See Ussery v. State, 596 S.W.3d 277, 290
(Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (holding three-and-one-half-year
delay partially attributable to new trial judge did not relieve defendant of burden to
show prejudice); cf. Gonzales, 435 S.W.3d at 812–15 (discussing relevant federal case law
involving a five-year delay, a delay of more than eight years, and a ten-year delay, then
concluding that six-year delay created presumption of prejudice); State v. Wei, 447
S.W.3d 549, 556–57 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (holding that
51-month delay in DWI case absolved defendant of burden to show prejudice).
25
The prejudice arising from the delay must be analyzed in light of the dangers that
the speedy trial right was designed to prevent: (1) oppressive pretrial incarceration,
(2) increased anxiety and concern for the accused, and (3) impairment of the accused’s
defense. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. “The last interest is the most
important because the fairness of the entire criminal[ ]justice system is distorted when
a defendant is unable to adequately prepare his defense.” Gonzales, 435 S.W.3d at 812.
This “most important” consideration—the impairment of Black’s defense—is
not implicated in this case. See id. Black does not allege that the delay impaired her
defense in any way. Nor does Black attempt to address the first danger—oppressive
incarceration. Indeed, she would have had difficulty making such an argument, as she
was released on bond two days after her arrest.
Black claims, though, that she experienced the second type of prejudice:
increased anxiety and concern. She complains that the ongoing requirement that she
maintain an ignition interlock system on her car “became unreasonable and harmful
because of the State’s inordinate delay in this case.” Black testified that the cost of
maintaining an ignition interlock device on her car was between $60 to $100 monthly
and that these fees were a source of financial hardship and personal stress.22 She also
testified that the ignition interlock system was distressing for her because she suffered
22
Black had initially paid $100 per month for her interlock system, but she
subsequently switched interlock companies, and at the time of the speedy trial hearing,
she paid $60 per month.
26
from COPD23 and “ha[d] a hard time sometimes breathing long enough for [the ignition
interlock system or car] to initiate,” requiring her to “do it two or three times” before
her car would start. 24
A financial burden is generally considered some evidence of prejudice. See Cantu,
253 S.W.3d at 286 (referring to the “draining of financial resources” as one of the
“major evils protected against by the speedy trial guarantee” and discussing cases in
which the defendant was found to have suffered prejudice based on the evidence of a
“major evil[]”); Flores, 951 S.W.2d at 144 (concluding that the defendant’s “burden of
paying $2000 each year to renew his bond should not be dismissed as insignificant and
does establish some prejudice”). And the same is true of pretrial anxiety. Cf. Cantu,
253 S.W.3d at 285–86 (noting that “general anxiety ‘is at least some evidence of the type
of “anxiety” that the Supreme Court considers under the prejudice prong of Barker’”
although, standing alone, it “is not sufficient proof of prejudice” (quoting Zamorano, 84
S.W.3d at 654)).
23
COPD stands for chronic obstructive pulmonary disease. See, e.g., Boyer v. State,
No. 2-09-092-CR, 2010 WL 3432843, at *7 (Tex. App.—Fort Worth Aug. 31, 2010,
pet. ref’d) (per curiam) (mem. op., not designated for publication) (clarifying the
meaning of COPD).
24
The trial court’s findings of fact indicate that it found this testimony credible.
See Kelly, 163 S.W.3d at 728 (recognizing in speedy trial case that “the trial court is
permitted to disbelieve evidence”).
27
However, Black primarily focused on prejudice related to the mandated ignition
interlock device itself, 25 and as the State points out, an ignition interlock system is a
statutorily required bond condition for repeat DWI offenses.26 Tex. Code Crim. Proc.
Ann. art. 17.441(a). But cf. id. art. 17.441(b) (allowing magistrate to not require ignition
interlock “if the magistrate finds that to require the device would not be in the best
interest of justice”). Black’s ignition interlock woes do not demonstrate prejudice
beyond the level normally associated with a criminal charge of enhanced DWI.
In State v. Page, for example, our sister court of appeals held that the general
anxiety and concern associated with a statutorily required ignition interlock system did
not demonstrate prejudice for speedy trial purposes. 2020 WL 1899453, at *10. There,
the defendant claimed that the ignition interlock device caused prejudice because he
could not valet park his vehicle, drive clients to lunch, or chauffeur his child’s friends.
Id. But the Dallas Court of Appeals recognized that “[t]he ignition interlock
device . . . is required by statute for DWI repeat offenders,” and it held that “any
anxiety, inconvenience, or embarrassment caused by that device is not beyond that
25
Black testified that her DWI charge had other detrimental impacts as well,
including requiring her to pay $50 per month to Denton County, and requiring her to
call her bail bondsman every Friday. The trial court noted portions of Black’s testimony
in its findings of fact and conclusions of law, indicating that it found such testimony
credible. Nonetheless, on appeal, Black solely relies upon the ignition interlock system
as the source of prejudice.
26
Black acknowledged at her speedy trial hearing that she understood that the
ignition interlock system was a “standard bond condition[].”
28
which would normally be experienced by any defendant on bond for a second DWI
offense.” Id. (citing Tex. Code Crim. Proc. Ann. art. 17.441). Although the defendant
testified that the interlock device had changed his conduct and forced him to miss
opportunities, there was no evidence that his “work life was impacted to any abnormal
or burdensome degree.” Id.Similarly here, Black bore an emotional and financial burden by having to
maintain an ignition interlock system on her car, but there was no evidence that this
burden exceeded that normally experienced by a defendant on bond for a second DWI.
See Tex. Code Crim. Proc. Ann. art. 17.441(a); Page, 2020 WL 1899453, at *10; cf. State
v. Pena, No. 13-04-585-CR, 2006 WL 2830828, at *4 (Tex. App.—Corpus Christi–
Edinburg Oct. 5, 2006, no pet.) (mem. op., not designated for publication) (holding that
there was no evidence of prejudice where defendant accused of felony DWI was
required to “pay a monthly service fee of around $62.75 for inspection of his ignition
interlock device”); Hausauer, 2005 WL 954376, at *3–4 (holding that defendant charged
with a second DWI failed to show prejudice in part because ignition interlock device
“was not ordered by the court as a condition of his bond, but rather was a requirement
imposed by the State of Texas in order for [the defendant] to get his driver’s license
reinstated”). Black did not testify or allege that the ignition interlock system prevented
her from working, that it resulted in the loss of her job, or that it jeopardized her ability
29
to afford basic necessities or living expenses.27 Although her COPD may have
impacted her ability to operate the ignition interlock system, Black testified that she had
never had an instance where she could not start her car, and she clarified that there was
only “[o]ne time [she] had trouble with it.”
Ultimately, the record demonstrates that Black did not suffer any delay-related
anxiety, burden, or concern that rose beyond the level normally associated with a second
DWI charge. Cf. Sample, 2022 WL 2960241, at *5 (concluding that there was no
significant prejudice and noting that “even if a speedier trial had shortened the time the
indecency charge was pending, it would not have avoided all of the negative effects to
[the a]ppellant of being charged with indecency with a child and sexual assault of an
adult”). This factor weighs in favor of the State and against Black. See Page, 2020 WL
1899453, at *10; Pena, 2006 WL 2830828, at *4; Hausauer, 2005 WL 954376, at *3–4.
E. Balancing the Factors
Taken together, the Barker factors do not demonstrate a speedy trial violation.
Although the length of the delay and the reason for the delay weigh slightly against the
State, and although Black filed repeated assertions of her right to a speedy trial, Black’s
assertions lacked force, she sought dismissal of her case rather than a trial, the period
27
Regarding her income, Black testified that she received $800 per month in social
security, that she made $800 per month working for the school system when school
was in session, and that she “barter[ed]” with a friend to help him with errands,
appointments, and chores in exchange for room and board.
30
of delay was not excessively long or deliberately caused, and Black did not suffer serious
prejudice beyond that which she would have ordinarily experienced from a second DWI
charge. See, e.g., Cantu, 253 S.W.3d at 286–87 (holding no speedy trial violation when
police department’s negligence caused 16-month delay in charging DWI, trial court
doubted defendant’s alleged assertions of the right via counsel’s calls to the district
attorney’s office, defendant moved for dismissal rather than trial, and defendant’s
anxiety did not rise to the level of “substantial” prejudice); Ussery, 596 S.W.3d at 291
(holding no speedy trial violation when delay extended more than three years and
defendant asserted his rights multiple times, but the assertions were “undermined” by
other factors, the State did not deliberately delay, defendant filed dismissal motion, and
there was no serious prejudice).
The evidence in this case thus supports the trial judge’s ruling; Black was not
denied her Sixth Amendment right to a speedy trial. See U.S. Const. amends. VI, XIV.
We overrule Black’s sole issue.
31
V. Conclusion
Having overruled Black’s sole issue, we affirm the trial court’s judgment. Tex.
R. App. P. 43.2(a).
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 18, 2022
32