Opinion issued June 27, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00257-CR
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THE STATE OF TEXAS, Appellant
V.
SAMUEL HUDSON, Appellee
On Appeal from the County Court at Law No. 4
Fort Bend County, Texas
Trial Court Case No. 17-CCR-193400
MEMORANDUM OPINION
Appellant, the State of Texas, challenges the trial court’s order granting the
motion of appellee, Samuel Hudson, to dismiss the information accusing him of the
misdemeanor offense of driving while intoxicated (“DWI”).1 In its sole issue, the
State argues that the trial court erred in granting appellee’s motion to dismiss.
We reverse and remand.
Background
On May 23, 2017, the State filed an information against appellee, accusing
him of DWI. The complaint alleged that on or about August 27, 2015, appellee
operated a motor vehicle in a public place while intoxicated.
On October 9, 2017, appellee filed a motion to dismiss for failure to provide
a speedy trial. In his motion, appellee alleged that the “643 days” or “over 21 month
delay” in his case, “between the time of the alleged incident and the issuance of the
summons on June 1, 2017,” was presumptively unreasonable and prejudicial, and he
requested that the trial court dismiss the information against him for “failure to
provide a speedy trial in direct violation of the Sixth and Fourteenth Amendments
to the U.S. Constitution, and Art. 1 Sec. 10 of the Texas Constitution and Art. 1.05
of the Texas Code of Criminal Procedure.”
At a hearing before the trial court on appellee’s motion to dismiss, Sugarland
Police Department (“SPD”) Officer Mike Bieltz testified that on August 27, 2015,
he was dispatched to a scene in response to a complaint about a reckless driver.
Upon arriving at the scene, Bieltz discovered appellee unconscious inside a vehicle.
1
TEX. PEN. CODE ANN. § 49.04.
2
As emergency medical service (“EMS”) professionals attempted to wake appellee
up, Bieltz observed that appellee’s eyes were “kind of glassy,” he “had slurred
speech,” and did not “really kn[o]w where he was.”
Officer Bieltz testified that EMS transferred appellee directly from the scene
to Sugar Land Methodist Hospital. At the hospital, Bieltz advised appellee that he
was “not under arrest.” Bieltz then read appellee a “DIC-24 form,” which provides,
in relevant part:
You are under arrest for an offense arising out of acts alleged to have
been committed while you were operating a motor vehicle . . . in a
public place while intoxicated . . . . You will be asked to give a
specimen of your breath and/or blood. The specimen will be analyzed
to determine the alcohol concentration or the presence of a controlled
substance, drug, dangerous drug or other substance in your body.
If you refuse to give the specimen, the refusal may be admissible in a
subsequent prosecution. Your license, permit or privilege to operate a
motor vehicle will be suspended or denied for not less than 180 days,
whether or not you are subsequently prosecuted for this offense.
Bieltz further testified that the appellee “appeared to . . . understand[]” him, and
Bieltz had no reason to believe that appellee did not hear him when he told him that
he was not under arrest. No field sobriety tests were performed, but appellee
consented to giving a blood specimen. His blood was subsequently drawn by a nurse
at the hospital, and Bieltz “packaged” the vials of blood and transported them to a
refrigerator in the evidence room at the SPD station where this type of evidence is
stored. Then, an “evidence tech” sent the vials of appellee’s blood to an outside
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source for testing. Bieltz’s DWI investigation was put on hold pending the results
of appellee’s blood analysis.
Officer Bieltz testified that “the normal process” is that blood-testing results
will be sent to the “evidence tech” and that Bieltz is not involved in the case again
until trial. However, in this case, the blood-testing results were sent to Bieltz directly
by email on December 2015. He does not recall receiving the email containing the
results at that time and testified that he did not discover the results until sometime
later. The results confirmed the presence of narcotics in appellee’s blood, and the
case was forwarded to the District Attorney’s Office. Bieltz further testified that no
charges would have been filed if the blood-testing results had not confirmed the
presence of narcotics or alcohol in appellee’s blood.
The trial court granted appellee’s motion to dismiss for failure to grant a
speedy trial and entered the following findings of fact and conclusions of law:
Findings of Fact
1. On February 26, 2018[,] the Court heard the testimony of
Officer Bieltz, received exhibits admitted by the parties, and heard the
arguments of counsel.
2. The Court found the testimony of Officer Bieltz credible.
3. Officer Bieltz testified that on August 27, 2015 he was
dispatched to Sugar Land, Fort Bend County, Texas in reference to a
reckless driver.
4. When Officer Bieltz arrived at the reported location[,] the
driver appeared to be passed out[] and was not responding to any of
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Officer Bieltz’s attempts to make contact with him. The driver was
later identified as Samuel Hudson, the [d]efendant in this case.
5. Due to Hudson being unresponsive, Officer Bieltz had
EMS make contact with him and attempt to evaluate him. While
Hudson was talking to EMS, Officer Bieltz observed Hudson to have
glassy eyes, droopy eyelids, and slurred speech. After EMS checked
Hudson’s vital signs[,] they determined Hudson needed medical
attention and transported him to Sugar Land Methodist Hospital. One
of the medics on scene told Officer Bieltz that Hudson admitted to
taking drugs.
6. Officer Bieltz went to Sugar Land Methodist Hospital and
told Hudson he was not under arrest, and asked Hudson if he would be
willing to submit to a blood draw. Officer Bieltz requested Hudson’s
blood using the DIC 24 form. Hudson consented to provide a specimen
of his blood. A specimen of Hudson’s blood was drawn and submitted
for analysis for drugs and alcohol. Due to Hudson’s condition, no field
sobriety tests were performed and he was not taken into custody.
7. The case was held pending the results of the blood
analysis. Officer Bieltz received the blood results via email on
December 31, 2015, but did not discover the email containing the
results until sometime later. Once the results were discovered, and
because they confirmed the presence of drugs, the case was sent to the
District Attorney’s Office for filing.
8. Officer Bieltz testified that [the] nine months that elapsed
between when the blood results were emailed to him and when he
discovered them, was due to an apparent “shuffling through the cracks.”
Officer Bieltz further testified that if the results had not shown any
drugs or alcohol, he would not have sent the case [to] the District
Attorney’s Office for filing.
9. The case proceeded as follows:[2]
05/23/2017 State filed this DWI case.
06/01/2017 A summons was mailed to [Hudson] to appear on
2
The record reflects that the trial court took judicial notice of the record in this case
as set forth in its Findings of Fact.
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July 21, 2017.
07/21/2017 [Hudson] appeared [] in court with retained
counsel and reset case.
10/09/2017 [Hudson] filed Motion to Dismiss for Failure to
Provide a Speedy Trial.
10/10/2017 [Hudson] appeared with counsel and reset case for
hearing on motion to dismiss.
12/08/2017 [Hudson] appeared with counsel and reset case.
12/19/2017 [Hudson] appeared with counsel and the Court
reset case.
02/26/2018 Hearing on [Hudson]’s Motion to Dismiss.
02/27/2018 The Court signed an order granting [Hudson]’s
Motion to Dismiss.
Conclusions of Law
10. The relevant interval of time for the speedy trial analysis
in this case was measured from August 2[7], 2015, the date of the
alleged offense, to June 1, 2017, the date the summons was issued. The
delay was 643 days, or over 21 months.
11. A delay of over 21 months was sufficient to trigger a
speedy trial analysis.
12. The Length of the delay. The first factor weighed against
the State, because the delay stretched well beyond the minimum
required to trigger the speedy trial analysis.
13. The Reason for the delay. The second factor also
weighed against the State, because the delay was due to Officer Bieltz’s
negligence in failing to discover the blood results had been emailed to
him.
14. Assertion of the Right. The third factor weighed against
[Hudson], because the record shows that [he] failed to request a speedy
trial before filing for a dismissal. Cantu v. State, 253 S.W.3d 273, 282–
[]83 (Tex. Crim. App. 2008).
15. Prejudice. The fourth factor also weighed against
[Hudson]. [He] did not testify or offer any evidence from which the
Court could conclude he was prejudiced by the delay, thus he failed to
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make a prima facie showing of prejudice. Barker v. Wingo, 407 U.S.
514, 532 (1972).
16. Balance of the factors. In balancing the factors the Court
concluded that the length of the delay and the reason for delay were so
excessive and unjustifiable, that they outweighed [Hudson]’s failures
to assert his speedy-trial right, and make a prima facie showing of
prejudice.
Standard of Review
We review a trial court’s ruling on a claim of the denial of the right to a speedy
trial under a bifurcated standard of review. See Cantu v. State, 253 S.W.3d 273, 282
(Tex. Crim. App. 2008). We review factual issues for an abuse of discretion and
legal issues de novo. Id.
Right to Speedy Trial
In its sole issue, the State argues that the trial court erred in granting appellee’s
motion to dismiss because appellee’s right to a speedy trial was not violated.
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant a speedy trial, and the sole remedy when he is deprived of that right is
dismissal. See U.S. CONST. amend. VI; Barker v. Wingo, 407 U.S. 514, 522 (1972).
The applicability of the right to a speedy trial is limited only to an accused. Gonzales
v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014). Therefore, a person who has
not been formally charged cannot seek protection from the speedy-trial clause for
the State’s failure to “to discover, investigate, and accuse a person within any
particular period of time.” Id. (quoting United States v. Marion, 404 U.S. 307, 313,
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320 (1971)). Instead, “[a]ny delay between commission of a crime and indictment
is governed by the applicable statute of limitations.” Id. (alteration in original).
A. The Barker factors
To determine whether an accused was deprived of the right to a speedy trial,
we weigh and balance the following four factors set forth by the United States
Supreme Court in Barker: (1) the length of the delay; (2) the reason for the delay;
(3) the accused’s assertion of his speedy-trial right; and (4) the prejudice to the
accused’s resulting from the delay. 407 U.S. at 530; see also Cantu, 253 S.W.3d at
280. “However, before a court engages in an analysis of each Barker factor, the
accused must first make a threshold showing that ‘the interval between accusation
and trial has crossed the threshold dividing ordinary from ‘presumptively
prejudicial’ delay.” Gonzales, 435 S.W.3d at 808 (quoting Doggett v. United States,
505 U.S. 647, 651–52 (1992)). The length of the delay acts as a “triggering
mechanism” for analysis of the remaining three Barker factors. Zamorano v. State,
84 S.W.3d 643, 648 (Tex. Crim. App. 2002) (citing Barker, 407 U.S. at 530).
“Unless the delay is presumptively prejudicial, courts need not inquire into examine
the other three factors.” Id.
When reviewing application of the Barker factors, we give almost total
deference to the historical findings of fact made by the trial court if supported by the
record and draw inferences from those facts necessary to support the trial court’s
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findings. Gonzales, 435 S.W.3d at 808–09. However, we review de novo whether
there was sufficient presumptive prejudice to proceed to a full Barker analysis and
weigh the remaining Barker factors. Id. at 809. The “balancing test as a whole . . . is
purely a legal question.” Zamorano, 84 S.W.3d at 648 n.19 (alteration in original)
(quoting Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997)).
B. Presumptive prejudice and length of delay
To determine whether the length of delay is presumptively prejudicial, we
must first calculate the delay. Gonzales, 435 S.W.3d at 809. The length of the delay
is measured from the time the defendant is arrested or formally accused. Dragoo v.
State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003); Harris v. State, 827 S.W.2d 949,
956 (Tex. Crim. App. 1992). Notably, the length of the delay that will provoke a
speedy-trial inquiry is “necessarily dependent upon the peculiar circumstances of the
case.” Barker, 407 U.S. at 530–31. If the delay is more than “ordinary,” it is subject
to the speedy-trial analysis; the longer the delay, the greater the presumption of
prejudice to the defendant. Zamorano, 84 S.W.3d at 649 (internal quotations
omitted). There is no set time for triggering the analysis, but “a delay of four months
is not sufficient while a seventeen-month delay is.” Cantu, 253 S.W.3d at 281; see
also Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003) (“In general, delay
approaching one year is sufficient to trigger a speedy trial inquiry.”); Harris, 827
S.W.2d at 954 (recognizing courts generally hold any delay eight months or longer
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is presumptively unreasonable and triggers speedy-trial analysis; holding thirteen-
month delay in case “prima facie” unreasonable under circumstances presented).3
Here, the parties disagree as to the date on which the right to a speedy trial
attaches in this case for purposes of calculating the length of the delay. The State
argues that the trial court erred in calculating the delay from the date of commission
of the alleged offense because appellee was not arrested at any time before the State
filed formal charges against him on May 23, 2017—resulting in an approximately
four-month delay. Thus, the State further asserts that appellee was not an accused
person, and the right to a speedy trial did not attach, until that time. Appellee argues
that he became an accused person on August 27, 2015, the date of the alleged
offense, because he was placed under arrest at the hospital when Officer Bieltz read
him the warnings in a DIC-24 form, which included the statement “You are under
arrest,” and collected a blood sample from him for narcotics and alcohol testing. For
this reason, according to appellee, there was an approximately twenty-one-month
delay in this case.
3
See also Doggett v. United States, 505 U.S. 647, 651, 652 n. 1 (noting that courts
“have generally found post[-]accusation delay ‘presumptively prejudicial’ at least
as it approaches one year”); Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim. App.
1983) (“Although there ‘is no precise length of delay which irrefutably constitutes
a violation of the right to a speedy trial in all cases,’ . . . a
seventeen[-]month delay is sufficient to raise the issue.” (citation omitted)); Pete v.
State, 501 S.W.2d 683, 687 (Tex. Crim. App. 1973) (“[Defendant] herein was tried
[for the offense of rape] approximately four months after he was bench warranted
from the Texas Department of Corrections. It is our opinion that this short period of
time could in no way be construed as ‘presumptively prejudicial.’”).
10
“A person is arrested when he has been actually placed under restraint or taken
into custody by an officer or person executing a warrant of arrest, or by an officer or
person arresting without a warrant.” TEX. CODE CRIM. PROC. ANN. art. 15.22. “A
person is in ‘custody’ only if, under the circumstances, a reasonable person would
believe that his freedom of movement was restrained to the degree associated with
a formal arrest.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)
(citing Stansbury v. California, 511 U.S. 318 (1994)). “The mere fact that an officer
makes the statement to an accused that he is under arrest does not complete that
arrest. There must be custody or detention and submission to such arrest.” Medford
v. State, 13 S.W.3d 769, 772–73 (Tex. Crim. App. 2000) (emphasis in original)
(internal quotations omitted). And, “it is not the actual, physical taking into custody
that will constitute an arrest. An arrest is complete whenever a person’s liberty of
movement is restricted or restrained.” Id. at 773 (internal quotations and citation
omitted). There are four general situations that may constitute custody: (1) when
an individual is physically deprived of his freedom of action in any significant way,
(2) when a law enforcement officer tells the person that he is not free to leave, (3)
when a law enforcement officer creates a situation that would lead a reasonable
person to believe that his freedom of movement has been significantly restricted, or
(4) when there is probable cause to arrest the person and law enforcement officers
do not tell the person that he is free to leave. Dowthitt, 931 S.W.2d at 255.
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Here, the trial court issued a finding of fact that appellee was “not taken into
custody” on the day of the offense. We give almost total deference to the trial court’s
findings of fact if supported by the record. Gonzales, 435 S.W.3d at 808˗09. From
the record, other than the statement read by Officer Bieltz from the DIC-24 form,
there is nothing to indicate appellee was taken into custody. He was transported to
the hospital by EMS and was never handcuffed or transported to jail. And there is
no evidence to suggest that appellee was restrained, told he could not leave upon
discharge, or otherwise taken into custody. Therefore, we find that the evidence in
the record supports the trial court’s finding of fact that appellee was not placed in
custody on the day of the offense.4
Accordingly, we hold that appellee was not placed under arrest on the date
of the offense and his right to a speedy trial in the case did not attach until formal
charges were filed against him. We further hold that the approximately four-month
4
The cases cited by appellee to support his argument that the reading of the DIC-24
form constituted an arrest concern the issues of arrest and consent in the context of
the admissibility of a blood test. Regardless, whether a person has been taken into
custody is a factual determination, which is evaluated on a case-by-case basis. See
Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (explaining
determination of custody made on case-by-case basis considering all surrounding
circumstances). We defer to the trial court’s fact-finding in this case. See Gonzales
v. State, 435 S.W.3d 801, 808–09 (Tex. Crim. App. 2014). And there are courts
which have determined that reading the statement “You are under arrest” from a
DIC-24 form is not sufficient to trigger the speedy-trial analysis. See, e.g., State v.
Tatum, No. 05-14-01246, 2015 WL 4931445, at *3–4 (Tex. App.—Dallas Aug. 18,
2015, no pet.) (mem. op.) (determining DIC-24 form did not result in arrest and
defendant not formally accused, and clock did not begin to run, until later date).
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delay in this case—from the date formal charges were filed against appellee until he
filed his motion to dismiss on October 10, 2017—is insufficient as a matter of law
to trigger the Barker analysis because a four-month delay is not presumptively
prejudicial. E.g., Pete v. State, 501 S.W.2d 683, 687 (Tex. Crim. App. 1973)
(holding span of approximately four months between bench warrant and trial not
presumptively prejudicial). And under the circumstances of this case, this short time
could in no way be construed as “presumptively prejudicial.”
Accordingly, we hold that appellee’s right to a speedy trial was not abridged,
and the trial court erred in granting appellee’s motion to dismiss.
We sustain the State’s sole issue.
Conclusion
We reverse the dismissal order of the trial court and remand for further
proceedings consistent with this opinion.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
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