                            NUMBER 13-11-00474-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                          Appellant,

                                           v.

ROGELIO TRIGO JR.,                                                           Appellee.


                    On appeal from the 36th District Court
                       of San Patricio County, Texas.


                         MEMORANDUM OPINION
                 Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Vela
      This is a State's appeal from a motion to dismiss granted in favor of Rogelio Trigo

Jr. ("Trigo"). By one issue, the State contends that the trial court erred in granting the

motion to dismiss because Trigo failed to assert his speedy trial right. We affirm.

                                     I. BACKGROUND

      Trigo was arrested on October 15, 2009 in San Patricio County for felony drug

possession, and posted bond on November 16, 2009. See TEX. HEALTH & SAFETY CODE
ANN. § 481.121 (West 2010). He attempted to file a motion for speedy trial in October

2010 with the San Patricio County District Clerk, but was unable to do so because there

was "no case" to file it in. Instead, Trigo filed his motion with the Justice of the Peace on

October 14, 2010. There is no record of an order on this motion. The State indicted

Trigo on May 10, 2011, approximately nineteen months after his arrest. Trigo filed a

post-indictment motion to dismiss on the ground that his right to speedy trial was violated.

The motion was granted by the trial court on June 17, 2011. The State subsequently

filed this appeal. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1) (West 2007).

                                  II. STANDARD OF REVIEW

       We apply a bifurcated standard when reviewing the trial court's ruling on a

speedy-trial motion: "an abuse-of-discretion standard for factual components, and a de

novo standard for legal components." Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim.

App. 2008). We view all of the evidence in the light most favorable to the trial court's

ruling. Id. A bifurcated standard of review is also applied when considering a trial

court's decision to dismiss the case. See State v. Krizan-Wilson, 354 S.W.3d 808, 815

(Tex. Crim. App. 2011). We give almost total deference to a trial court's findings of fact

that are supported by the record. Id.

                                        III. APPLICABLE LAW

       The right to a speedy trial is guaranteed independently by both the United States

Constitution and the Texas Constitution. See U.S. CONST. amend. VI; TEX. CONST. art. 1,

§ 10. The United States Supreme Court, in Barker v. Wingo, 407 U.S. 514, 530–31

(1972), established a framework for analyzing speedy trial claims.              The Barker

framework requires consideration of: (1) the length of the delay; (2) the reasons for the

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delay; (3) the assertion of the right; and (4) the prejudice to the defendant. Id. Texas

state courts analyze claims of a denial of the state speedy-trial right under the same four

Barker factors as federal courts.      Cantu, 253 S.W.3d at 280.         No single factor is

necessary or sufficient to establish a violation of the right to a speedy trial. Barker, 407

U.S. at 530, 533. Instead, we weigh the strength of each of the Barker factors and then

engage in a balancing test in light of "the conduct of both the prosecution and the

defendant." See Cantu, 253 S.W.3d at 281; Barker, 407 U.S. at 533. The State has the

burden of justifying the length of the delay, and the accused must prove the assertion of

the right to a speedy trial and prejudice. See Cantu, 253 S.W.3d at 280. The accused's

burden of proof "varies inversely" with the State's degree of culpability for the delay:

"The greater the State's bad faith or official negligence and the longer its actions delay a

trial, the less (an accused) must show actual prejudice or prove diligence in asserting [the]

right to a speedy trial." Id. at 280–81. After finding that an accused's right to a speedy

trial was actually violated, the charging instrument must be dismissed with prejudice.

See Barker, 407 U.S. at 533.

                                           IV. ANALYSIS

       By its sole issue, the State argues that Trigo failed to assert his speedy trial right

because he did not seek relief prior to his indictment. We analyze the arguments in

accordance with the Supreme Court's Barker decision.

       A.     First Barker Factor: Length of the Delay

       The length of the delay is a "triggering mechanism" for analysis of the other factors.

Id. at 530, 533. There is no set time element, although the court of criminal appeals has

held a four-month delay to be insufficient, while finding a seventeen-month delay

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"presumptively prejudicial." Cantu, 253 S.W.3d at 281; see Phillips v. State, 650 S.W.2d

396, 399 (Tex. Crim. App. 1983); Pete v. State, 501 S.W.2d 683, 687 (Tex. Crim. App.

1973). In this case, Trigo was arrested on October 15, 2009. He was not indicted until

May 10, 2011. The period of approximately nineteen months delay in this case is

presumptively prejudicial under Cantu and therefore triggers the analysis of the remaining

Barker factors.

       B.     Second Barker Factor: Reason for the Delay

       After the delay is determined to be presumptively prejudicial, the State must justify

the delay. Turner v. State, 545 S.W.2d 133, 137–38 (Tex. Crim. App. 1976). "The

crucial question in determining the legitimacy of governmental delay may be whether it

might reasonably have been avoided—whether it was unnecessary." Dickey v. Florida,

398 U.S. 30, 52 (1970).      In determining the necessity for the delay, the court can

consider the "intrinsic importance" of the reason, as well as the length of the delay and its

potential for prejudice. Id. "For a trivial objective, almost any delay could be reasonably

avoided. Similarly, lengthy delay, even in the interest of realizing an important objective,

would be suspect." Id.

       In this case, the State failed to present any evidence as to a justification for the

delay. Trigo's attorney indicated that he encountered personnel and agency problems

when he attempted to get the case "moving" and was told that the case would be sent to

the District Attorney's office a second time. A "deliberate attempt to delay the trial"

weighs heavily against the State, while a "more neutral reason such as negligence or

overcrowded courts" will be weighed less heavily. State v. Munoz, 991 S.W.2d 818, 821

(Tex. Crim. App. 1999). The State did not meet its burden of providing justification for

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the delay. Moreover, considering Trigo's attorney's representations, it appears that, at

worst, the State deliberately attempted to delay the trial and, at best, that they negligently

failed to pursue this case.     See Cantu 253, S.W.3d at 280–81.            Accordingly, we

conclude this factor weighs against the State.

       C.     Third Barker Factor: Assertion of the Speedy-Trial Right

       The Supreme Court has held that the accused "need not await indictment,

information, or other formal charge" in order to invoke the speedy trial provision.

Dillingham v. United States, 423 U.S. 64, 65 (1975). In this case, Trigo filed his motion

for speedy trial in the Justice of the Peace court approximately seven months before his

indictment. Trigo's attorney indicated that he attempted to file the motion with the proper

court and was not allowed to because no pre-indictment case file existed in the court.

The State seems to argue that because the Justice of the Peace was the wrong court,

Trigo did not actually assert his right. Trigo's attempted assertion of his speedy trial right

"is entitled to strong evidentiary weight in determining whether the [accused] is being

deprived of the right." See Cantu, 253 S.W.3d at 283. If Trigo had not demanded a

speedy trial in a timely manner, then the court could infer that he did not really want a

speedy trial. But in this case his action of filing the speedy trial motion showed his intent

to assert his right. See Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992).

Even though the original motion for speedy trial was filed in the wrong court, we conclude

that this factor does not weigh against Trigo, as he asserted his right and his intent was

clear from his actions.




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       D.     The Fourth Barker Factor: Prejudice

       While a showing of actual prejudice is not required in Texas, Trigo had the burden

to make some showing of prejudice that was caused by the delay of the trial. See Harris

v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1971). The Fifth Circuit has determined

that silence during the pre-indictment period can work against the accused because "it

suggests that any hardships he suffered were either minimal or caused by other factors."

United States v. Palmer, 537 F.2d 1287, 1288 (5th Cir. 1976). In this case, Trigo was not

silent and, instead, took actions in furtherance of a trial and in order to prevent prejudice.

Trigo's attorney stated that he "contacted D.P.S. troopers . . . tracked down the initial

arresting officer; he switched agencies. His successor took over the case, informed us

the case had already been sent on to the D.A.'s office, but he would do it again."

       The most serious interest protected by a right to a speedy trial is the prevention of

an impairment of a defense. Barker, 407 U.S. at 531. Trigo represented in his motion

for speedy trial (filed seven months before his indictment and a year after his arrest) that

the delay "has prejudiced Rogelio Trigo's ability to defend himself against the charge in

this case."

       This Court views Trigo's continued pursuit of a speedy trial, as well as his

representation of his impaired ability to defend himself, as substantial proof that Trigo

suffered some prejudice due to the delay. Therefore, we conclude this factor weighs in

favor of Trigo.

                               V. BALANCING THE BARKER FACTORS

       In evaluating a speedy trial claim, we must balance the State's conduct against the

defendant's and consider the four factors together. The State failed to provide evidence

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of justification for the delay or any excuse as to the nineteen months that passed between

Trigo's arrest and indictment. These factors weigh against the State. Trigo in no way

contributed to the delay and attempted to assert his speedy-trial right at an appropriate

juncture. These factors weigh in favor of Trigo. The record in this case supports the

trial court's granting of Trigo's motion to dismiss, and we cannot conclude the trial court

abused its discretion in doing so. See Zamorano v. State, 84 S.W.3d 643, 648 (Tex.

Crim. App. 2002); Munoz, 991 S.W.2d at 821; Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997).

                                         VI. CONCLUSION

       We affirm the judgment of the trial court



                                                               ROSE VELA
                                                               Justice


Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of July, 2012.




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