IN THE
TENTH COURT OF APPEALS
No. 10-16-00062-CR
THE STATE OF TEXAS,
Appellant
v.
JOSE ESTRADA,
Appellee
From the County Court at Law
Walker County, Texas
Trial Court No. 15-0686
MEMORANDUM OPINION
Jose Estrada was charged by complaint and information with the offense of
driving while intoxicated, a second offense. See TEX. PENAL CODE ANN. § 49.04 (West
2011). He filed a motion to dismiss for lack of a speedy trial which, after a hearing, the
trial court granted. The State has appealed the trial court’s order of dismissal. Because
the trial court erred in its weighing of the speedy trial factors, we reverse the trial court’s
order and remand this case for further proceedings.
SPEEDY TRIAL
In one issue, the State contends the trial court erred in dismissing the State’s case
against Estrada because the State did not violate Estrada’s right to a speedy trial.
The Sixth Amendment to the United States Constitution guarantees an accused the
right to a speedy trial. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008) (citing
Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002)). In addressing a speedy-
trial claim, the Supreme Court has laid out four factors that a court should consider: (1)
the length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right
to a speedy trial, and (4) prejudice to the defendant resulting from delay. See Gonzales v.
State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014); Dragoo v. State, 96 S.W.3d 308, 313 (Tex.
Crim. App. 2003); see also Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972). The four factors are related and must be considered together along with any other
relevant circumstances. Cantu, 253 S.W.3d at 281. Courts must apply the Barker balancing
test 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. at 280.
Standard of Review
When reviewing an application of the Barker balancing test, a reviewing court uses
the same burden of proof allocation as in the context of a motion to suppress. Gonzales v.
State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014); Kelly v. State, 163 S.W.3d 722, 726 (Tex.
State v. Estrada Page 2
Crim. App. 2005). That is, we give almost total deference to historical findings of fact of
the trial court that the record supports and draw reasonable inferences from those facts
necessary to support the trial court's findings, but we review de novo: (1) whether there
was sufficient presumptive prejudice to proceed to a full Barker analysis (the first Barker
factor); and (2) the weighing of the Barker factors, both of which are legal questions.
Gonzales, 435 S.W.3d at 808-809. In addition, as a reviewing court, we do not consider
record evidence that was not before the trial court when it made its ruling. Id. at 809;
Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003); see also Pierson v. State, 426
S.W.3d 763, 771 (Tex. Crim. App. 2014).
Hearing
Estrada’s Motion to Dismiss for Lack of Speedy Trial was filed on February 4, 2016.
The hearing on the motion was held on February 9, 2016. At the hearing, Estrada testified
that he was arrested for driving while intoxicated on August 30, 2014. He also presented
documentation1 from which it appears he was arrested at the scene and later was released
after posting bail. Further documentation presented included a lab report with Estrada’s
blood-alcohol analysis which was issued on October 3, 2014 by the Texas Department of
Public Safety Crime Lab and a report which indicated that the offense report, criminal
history, booking records, and the lab report were provided to the State by the DPS on
1 Each document presented to the court was attached to Estrada’s Motion to Dismiss for Lack of Speedy
Trial.
State v. Estrada Page 3
October 6, 2014.
Estrada presented two representation letters by his attorney, one dated October 1,
2014 and one dated March 18, 2015 stating the same thing: that Estrada was represented
by a law firm and was requesting certain information from the State. No request for a
speedy trial was made in either letter. Documentation was also presented that indicated
Estrada was to appear in court, and his attorney stated that he did appear in court, on
October 23, 2014 before a case had been filed. The last document presented was evidence
that the complaint and information charging Estrada with driving while intoxicated was
filed on September 10, 2015.
Estrada testified at the hearing that a person named Santos Colunga was with him
four or five hours before he was arrested. He did not clarify whether Colunga was with
him for the four to five hours immediately preceding the arrest or had simply met up
with him for a short time four to five hours prior to the arrest. Estrada also testified that
six months before the hearing, which would have been about September of 2015, Colunga
left for Mexico and that Colunga had died within two weeks prior to the date of the
hearing. No explanation of the cause of or circumstances surrounding the death were
given. Estrada stated that Colunga could have been a witness in his defense, but Estrada
did not testify as to what Colunga’s testimony would have been.
Length of the Delay—First Barker Factor
The length of the delay is measured from the time the defendant is arrested or
State v. Estrada Page 4
formally accused until the time of trial or a defendant’s demand for a speedy trial. Gonzales,
435 S.W.3d at 809; Dragoo, 96 S.W.3d at 313; Zamorano v. State, 84 S.W.3d 643, 648 (Tex.
Crim. App. 2002). This factor is, to some extent, a triggering mechanism, so that there is no
necessity for inquiry into the other factors that go into the balance until passage of a period
of time that is, on its face, unreasonable under the circumstances. Barker v. Wingo, 407 U.S.
514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); Dragoo, 96 S.W.3d at 313. In general, a delay
approaching one year is unreasonable enough to trigger the full Barker analysis. Dragoo, 96
S.W.3d at 313.
Estrada was arrested on August 30, 2014. The charge against him was not filed until
a little over 12 months later. Then another five months after the complaint and information
were filed passed before Estrada filed his motion to dismiss the complaint and information
for lack of a speedy trial. This delay is long enough to trigger the full Barker analysis; and
this factor is weighed against the State.
Reason for the Delay—Second Barker Factor
When a court assesses the second Barker factor, "different weights should be assigned
to different reasons" for the delay. Barker v. Wingo, 407 U.S. at 531; Dragoo v. State, 96 S.W.3d
308, 314 (Tex. Crim. App. 2003). Some reasons are valid and "serve to justify appropriate
delay." Id. However, 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; and the factor is weighed against the State, but not heavily.
State v. Estrada Page 5
Dragoo v. State, 96 S.W.3d at 314.
Here, the State offered the trial court no reason to justify any of the almost 18
month delay between Estrada's arrest and Estrada’s motion to dismiss for the lack of a
speedy trial. Consequently, this factor does weigh against the State but not heavily. See
id.
Assertion of the Right—Third Barker Factor
A defendant has the responsibility to assert his right to a speedy trial. Cantu v.
State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008). The lack of a timely demand for a
speedy trial strongly indicates that a defendant did not really want a speedy trial and that
he was not prejudiced by the lack of one. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim.
App. 2003). 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.
Cantu, 253 S.W.3d at 283.
Although a person cannot file a motion for a speedy trial until formal charges are
made, the right to a speedy trial can be asserted in other ways. Cantu v. State, 253 S.W.3d
273, 283 (Tex. Crim. App. 2008). An accused in Estrada's place—arrested but not formally
charged—has a choice: He can wait until he is charged, then file a motion for a speedy
trial, and, if this request is not honored, he can then file a motion to dismiss because he
has diligently sought what he is entitled to—a speedy trial. Id. at 284. Or he can wait
until he is charged and simply file a motion to dismiss if he can show that he diligently
State v. Estrada Page 6
tried to move the case into court before formal charges were filed. Id. Because Estrada
never asked for a speedy trial—he asked only for a dismissal—it was incumbent upon
him to show that he had tried to get the case into court so that he could go to trial in a
timely manner. Id.
Here, Estrada never requested a speedy trial; he sought only an outright dismissal
and tried to prove that he acted on the desire for a speedy resolution before he was
charged. Id. at 284-285. To do this, he submitted two letters of representation by his
attorney prior to being charged. Neither of these letters show that he tried to get his case
into court before the complaint and information were filed. Both letters were identical
and primarily sought discovery from the State.
Further, Estrada, rather than the State, was in the position to know when and why
Colunga left the United States to return to Mexico. Estrada was thus in the position to
know whether the presentation of evidence favorable to his case was at risk due to the
possible loss of Colunga’s testimony by Colunga returning to Mexico for the entire time
from when the complaint and information were filed until Colunga’s death. But yet,
Estrada did not file a motion for a speedy trial during that time period. As indicated
above, Estrada did not testify about the reason that Colunga returned to Mexico which
could have been for any number of reasons that would have informed Estrada of the need
to secure Colunga’s testimony or to take efforts to expedite a trial setting.
Based on the foregoing analysis, this factor weighs against Estrada.
State v. Estrada Page 7
Prejudice to the Accused—Fourth Barker Factor
When a court assesses the fourth Barker factor, it must do so in light of the interests
of the defendants whom the speedy trial right was designed to protect: (1) to prevent
oppressive pretrial incarceration; (2) to minimize the accused's anxiety and concern; and
(3) to limit the possibility that the accused's defense will be impaired. Barker v. Wingo,
407 U.S. at 532; Dragoo, 96 S.W.3d at 316. Of these interests, "the most serious is the last,
because the inability of a defendant adequately to prepare his case skews the fairness of
the entire system." Barker, 407 U.S. at 532; see also Gonzales v. State, 435 S.W.3d 801, 812
(Tex. Crim. App. 2014).
Estrada did not claim he was prejudiced due to oppressive pretrial incarceration,
he has been out on bail, or anxiety or concern over the pending charges. Instead, he
claimed prejudice due to the unavailability of a witness, Colunga. Since Estrada
prevailed on his speedy trial claim in the trial court, we must defer to the trial court's
finding that Estrada would have called a witness to testify on Estrada’s behalf but the
witness died two weeks before the motion to dismiss and speedy trial hearing. See State
v. Munoz, 991 S.W.2d 818, 829 (Tex. Crim. App. 1999). However, Barker requires more of
a showing than this. Id. In order to support a determination of prejudice, a defendant must
show not only that the witness was unavailable, but also that the testimony might be
material and relevant to the case. Phipps v. State, 630 SW.2d 942, 946-47 (Tex. Crim. App.
[Panel Op.] 1982); see Dragoo v. State, 96 S.W.3d 308, 313 n. 3 (Tex. Crim. App. 2003). See
State v. Estrada Page 8
also Ex parte Perez, 398 S.W.3d 206, 212 n.7 (Tex. Crim. App. 2013) (speedy-trial complaints
require a defendant to show more than the fact that the State's delay caused witnesses to
be missing; a defendant must additionally show the materiality of the missing testimony
and establish how the absence of such testimony would impact his defense).
Although Estrada testified as to the unavailability of his witness due to the
witness’s death, he provided no information about what the witness would have testified
to in court. The only information Estrada supplied about the witness was that the witness
was with Estrada in the hours before Estrada’s arrest. He provided nothing to show that
the testimony the witness would have provided was material and relevant to Estrada’s
defense. The trial court found this factor to be in favor of Estrada; but, because of
Estrada’s failure to show that the testimony would have been material and relevant, this
factor must be weighed against Estrada.
Balancing
In balancing the four factors, we find that although the delay was sufficient to
trigger a speedy trial analysis and could be attributed to the State, it was not overly
excessive as to be overtly prejudicial. Further, although the State did not present an
explanation for the delay, there was no evidence that the delay was in bad faith; thus this
factor does not weigh heavily against the State. On the other hand, Estrada did not timely
assert his right to a speedy trial because he did not try to move his case toward filing.
When his case was finally filed, he did nothing about a speedy trial until after Colunga
State v. Estrada Page 9
died and only then requested a dismissal rather than a speedy trial. Accordingly this
factor weighs somewhat heavily against Estrada. As to the prejudice factor, the trial court
found Estrada to be prejudiced because his defense was impaired due to the death of a
witness and weighed this factor heavily against the State. However, we could find no
prejudice because Estrada did not show the materiality and relevance of the prospective
witness’s possible testimony; and thus, we weigh this factor as being against Estrada.
Balancing the four Barker factors, we hold that they weigh against Estrada, and the trial
court erred in concluding otherwise.
CONCLUSION
The trial court erred in granting Estrada’s motion to dismiss, and the State’s sole
issue is sustained. The trial court’s order granting Estrada’s motion to dismiss is
reversed, and this case is remanded for further proceedings.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and remanded
Opinion delivered and filed July 20, 2016
Do not publish
[CR25]
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