Reset A A Font size: Print

Court of Appeals of Texas, El Paso.


No. 08-16-00105-CR

Decided: September 27, 2017

Before McClure, C.J., Rodriguez, and Palafox, JJ.


Appellee Michael Joseph Wester was indicted for felony possession of methamphetamine. The trial court granted Appellee's motion to dismiss the indictment based on a violation of Appellee's right to a speedy trial, and the State appealed. In a single issue, the State contends that the trial court erred in finding a speedy trial violation. Finding error, we reverse.


Given the procedural posture of this case and its limited record, we only discuss facts that are germane to the issue presented. The underlying events all occurred between January and May of 2016. On January 12, Wester was arrested by an El Paso Police officer and charged with unlawful possession of methamphetamine. The next day, he posted bond and was released. Eight weeks later, on March 11, he was arrested on new, federal charges.

On March 29, a state grand jury indicted him for one count of possession of methamphetamine in an amount greater than four but less than two hundred grams, and his case was assigned to the 243rd District Court. Although the trial court scheduled an arraignment for April 26, Wester remained in custody and was not brought over to appear. Afterward, Wester's trial counsel filed a motion for speedy trial requesting an immediate trial setting. The trial court scheduled a hearing on Wester's motion for May 11.

On May 2, the State filed a petition for writ of habeas corpus ad prosequendum representing therein that Wester was then being held in the custody of the U.S. Marshall Service, and thus, the State requested a Writ of Habeas Corpus directing the Sheriff of El Paso County, or his deputies, to produce Wester before the 243rd District Court at the time designated for a hearing by the court. The trial court granted the State's petition and issued its Order for a Writ of Habeas Corpus, along with an Order of Transport, directing the Sherriff to produce Wester before the court for a hearing on May 11.

On the day of the hearing, Wester again was not present. After the announcements of counsel, the trial court asked defense counsel, “where is your client?” Counsel responded by stating that his client had been in “continuous custody” since January and that—despite the State requesting a Writ—he had yet to see his client in court.1 Defense counsel further represented that neither he nor Wester contributed to the circumstances and that Wester was “being prejudiced.” He described that “the evidence becomes more difficult to find and marshal defenses and such.” Defense counsel then verbally amended his motion by requesting that Wester's case “be dismissed for want of prosecution and for a motion for speedy trial.”

In response, the State first objected to the request for a dismissal noting that Wester's motion had merely requested an immediate trial setting. The State then argued that the delay in Wester's case was not yet long enough to trigger a speedy trial analysis under Barker v. Wingo,2 and that Wester had not presented any evidence in support of his motion. The State concluded by stating that it had “done its due diligence in attempting to get [Wester] here” after having learned that Wester was being held in federal custody. The following dialogue then followed:

COURT: Where's the defendant physically located?

[STATE]: The defendant is physically in the El Paso County detention center.

COURT: Across the street?

[STATE]: Correct, Judge.

COURT: Any response from the federal government?

[STATE]: I have yet -- haven't received a response from the federal government.

COURT: Motion so granted.

Afterward, the trial court signed an order granting Wester's speedy trial motion and then amended it to clarify that the order included dismissal of the case. This appeal ensued.


The State contends the trial court erred in granting the motion to dismiss on a violation of Wester's right to a speedy trial. The State first argues that the time between the January arrest and the speedy trial hearing, what the State describes as a four-month delay, is not presumptively prejudicial; and thus, does not trigger an analysis of other Barker factors. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (“[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors”). Second, the State argues that even if we find the delay to be presumptively prejudicial, a proper application of the Barker factors will show that the trial court erred in dismissing the case for lack of a speedy trial.

A. Standard of Review

When reviewing a trial court's ruling on a motion for a speedy trial, we “must do so in light of the arguments, information, and evidence that was available to the trial court at the time it ruled.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). We review a trial court's speedy trial decision under a bifurcated standard of review; an abuse of discretion for factual components and a de novo standard for legal components. Cantu v. State, 253 S.W.3d 273, 282 (Tex.Crim.App. 2008); Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). With respect to factual issues, the trial court is the sole judge of the credibility of the witnesses, and may disbelieve any evidence so long as there is a reasonable basis for doing so. Cantu, 253 S.W.3d at 282.

B. Speedy Trial

The United States and the Texas Constitutions both guarantee an accused the right to a speedy trial. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. When analyzing a trial court's decision to grant or deny a speedy trial claim, we balance four factors: (1) length of delay; (2) reason for the delay; (3) defendant's assertion of the right to speedy trial; and (4) prejudice to the defendant resulting from the delay. Gonzales v. State, 435 S.W.3d 801, 808 (Tex.Crim.App. 2014). No factor is either a necessary or sufficient condition to the finding of a deprivation of a right to speedy trial. Johnson v. State, 954 S.W.2d 770, 772 (Tex.Crim.App. 1997) (citing Barker, 407 U.S. at 533). Instead, these factors are related and must be considered together with such other circumstances that may be relevant. Id. at 773. This balancing test requires weighing, case-by-case, “the conduct of both the prosecution and the defendant.” State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999) (en banc) (quoting Barker, 407 U.S. at 530).

Before we consider these factors, however, the accused is required to make a threshold showing that the length of the delay was “presumptively prejudicial.” See Gonzales, 435 S.W.3d at 808. The length of the delay is a “triggering mechanism” for analysis of the remaining Barker factors. Id. at 809; see also Munoz, 991 S.W.2d at 821. Like the balancing test, whether there is presumptive prejudice is determined on a case-by-case basis. See Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192; Schenekl v. State, 996 S.W.2d 305, 312 (Tex.App.--Fort Worth 1999), aff'd, 30 S.W.3d 412 (Tex.Crim.App. 2000) (“the burden of first demonstrating a delay sufficient in length to be considered presumptively prejudicial under the circumstances of the case”); see also Munoz, 991 S.W.2d at 821. “The length of the delay is measured from the time the accused is arrested or formally accused,” to the date of the speedy trial hearing. Gonzales, 435 S.W.3d at 809; see Munoz, 991 S.W.2d at 822 (using the date of the speedy trial hearing as the applicable end date for a Barker analysis). Most delays of eight months or longer are considered presumptively unreasonable and prejudicial. Zamorano, 84 S.W.3d at 649 n.26 (citing Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992)). We must also consider the substance of a case since “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at 531, 92 S.Ct. at 2192. The delay factor requires a two-prong inquiry. Munoz, 991 S.W.2d at 822. First, any speedy trial analysis depends on whether the delay is more than “ordinary.” Zamorano, 84 S.W.3d at 649. Second, the longer the delay extends beyond “ordinary,” the more prejudicial that delay is to the accused. Id.

Here, the applicable start date for a speedy trial violation is measured from the date of Wester's arrest on state charges, or January 12. See Gonzales, 435 S.W.3d at 809. The trial court thereafter granted Wester's amended motion on May 11. Using the speedy trial dismissal date as the applicable end date in this instance, see Munoz, 991 S.W.2d at 822, we observe that the time measured from and including Wester's arrest to the date of the dismissal calculates as one hundred and twenty days, or four months. Given this length of delay, we find that this time interval is not presumptively prejudicial and does not yet trigger further inquiry into other Barker factors. See Pete v. State, 501 S.W.2d 683, 687 (Tex.Crim.App. 1973) (finding the span of approximately four months between the bench warrant and trial not presumptively prejudicial). This length of delay does not extend beyond what would be ordinary for the State to develop its case. See Shaw v. State, 117 S.W.3d 883, 889–90 (Tex.Crim.App. 2003) (noting that the three-month interval between appellant's indictment and first trial may not be counted against the State, since the State was entitled to a reasonable period in which to prepare an aggravated sexual assault case).

Thus, we conclude that Wester's constitutional right to a speedy trial was not violated. A defendant bears the burden to demonstrate prejudice. Cantu, 253 S.W.3d at 280 (“the defendant has the burden of proving the assertion of the right and showing prejudice”) (footnotes omitted). Here, the length of delay is not presumptively prejudicial nor indicative of a delay that is unreasonable enough to trigger further balancing of Barker factors. Pete, 501 S.W.2d at 687 (noting difficulty to find denial of speedy trial where defendant failed to satisfy one Barker factor); Phipps v. State, 630 S.W.2d 942, 946 (Tex.Crim.App. 1982) (where defendant demonstrated no prejudice by four-year delay between arrest and trial and he waited until one month before trial to assert his right to a speedy trial, his right to a speedy trial was not violated). Issue One is sustained.


Accordingly, we reverse the judgment of the trial court and remand the case with instructions to reinstate the indictment.


1.   At the hearing, defense counsel seemingly implied that Wester had not been released from jail since his January arrest. The record, however, reflects that Wester was released on bond on January 13, 2016, and then re-arrested on March 11, 2016, for a federal offense.

2.   407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).


Copied to clipboard