Opinion filed August 23, 2012




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-11-00052-CR
                                        __________

                    BENJAMIN FRANK GOEBLER, Appellant

                                              V.

                                STATE OF TEXAS, Appellee


                          On Appeal from the County Court of Law

                                     Brown County, Texas

                                 Trial Court Cause No. 0800267


                           MEMORANDUM OPINION

       Benjamin Frank Goebler entered a plea of “no contest” to the offense of driving while
intoxicated, second offense. The trial court assessed his punishment at confinement in the
Brown County Jail for a term of one-year and a fine of $500. However, the trial court probated
the imposition of confinement for a period of two years by placing appellant on community
supervision. Appellant challenges his conviction in a single issue. He contends that the trial
court erred in denying his motion to dismiss on speedy trial grounds. We affirm.
                                       Background Facts
       The complaint and information alleged that appellant committed the charged offense on
or about March 6, 2008. The case was filed on April 11, 2008. The court set the case for
arraignment on November 24, 2008.1 However, appellant did not appear on that date. The trial
court issued a warrant for appellant’s arrest based on his failure to appear. The trial court
subsequently withdrew the warrant when the court received notice that appellant was in a
rehabilitation facility in Houston. An assistant district attorney initially notified the trial court
of appellant’s status and she requested that the case be reset for ninety days. The trial court
subsequently received a letter from an entity known as “DAPA,” a psychiatric and substance
abuse program in Houston. The letter advised the trial court that appellant had been admitted
on November 18, 2008, into DAPA’s partial hospital program to treat his bipolar disorder and
alcohol dependence.2
         Nothing further happened in the case until November 2010. Brenda Sue Arp, the trial
court’s administrator, testified that she did not set the case earlier because she was waiting for
more information about appellant’s release from DAPA.                                She set the case for a status
conference on November 3, 2010, when she received notice that appellant had been released
from DAPA. The trial court subsequently set the case for jury trial on January 31, 2011.
Appellant filed his motion to dismiss on speedy trial grounds on January 14, 2011. The trial
court heard the motion on January 27, 2011. Appellant entered his no contest plea on that date
after the trial court denied the motion to dismiss.
                                                          Analysis
         Appellant premised his motion to dismiss on speedy trial grounds under the Federal
Constitution. The Sixth Amendment to the United States Constitution guarantees the accused’s
right to a speedy trial. Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002); see
U.S. CONST. amend. VI. We use a bifurcated standard of review when reviewing the trial
court’s ruling on a speedy trial motion. Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App.
2008). We apply “an abuse of discretion standard for factual components, and a de novo
standard for the legal components.” Id. The trial court’s ruling will be affirmed only if it is
supported by the record and is correct under the applicable law. Shaw v. State, 117 S.W.3d 883,
889 (Tex. Crim. App. 2003). When, as in this case, the trial court does not make written
findings of fact and conclusions of law, findings supported by evidence will be implied in favor


          1
            The trial court had initially set the case for arraignment on July 28, 2008. However, the court administrator was
unable to determine from the court’s records why the arraignment did not occur on that date.
          2
            The letter from DAPA also advised the court that appellant had previously been admitted to the facility from July 2,
2008, to September 27, 2008, and from September 30, 2008, to October 21, 2008.
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of the trial court’s ruling, and we must defer to such findings. See State v. Munoz, 991 S.W.2d
818, 821 (Tex. Crim. App. 1999).
       In determining whether a defendant was denied his right to a speedy trial, we consider
four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s effort to
obtain a speedy trial; and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514,
530 (1972). No single factor is necessary or sufficient to establish a violation of the defendant’s
right to a speedy trial. Barker, 407 U.S. at 533; Shaw, 117 S.W.3d at 889. The length of the
delay is a triggering mechanism for a speedy trial analysis; absent a presumptively prejudicial
delay, we need not consider the other Barker factors. Munoz, 991 S.W.2d at 820.
       Dismissal of the charging instrument with prejudice is mandated only upon a finding
that an accused’s Sixth Amendment speedy-trial right was actually violated.              Cantu, 253
S.W.3d at 281. Because dismissal of the charges is a radical remedy, a wooden application of
the Barker factors would infringe upon the societal interest in trying people accused of crime,
rather than granting them immunization because of legal error. Id. (quoting United States v.
Ewell, 383 U.S. 116, 121 (1966)). Therefore, we 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.;
see Barker, 407 U.S. at 534–35. “The constitutional right is that of a speedy trial, not dismissal
of the charges.” Cantu, 253 S.W.3d at 281.
       Length of the Delay
       At a minimum, there was a delay of over twenty months from the time that the
arraignment was reset in November 2008 until the case was set in September 2010 for a status
conference on November 3, 2010.          We conclude that a delay of this length triggers the
presumption of prejudicial delay and requires an analysis of the remaining Barker factors. See
id.
       Reasons for the Delay
       When a court considers the reasons offered to justify a delay, different weights must be
assigned to different reasons. Shaw, 117 S.W.3d at 889 (citing Barker, 407 U.S. at 531). Some
reasons are valid and serve to justify the delay, while other reasons are not valid and do not
serve to justify the delay. Id. A deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the State, while a more neutral reason such as
negligence or overcrowded courts should be weighted less heavily. Barker, 407 U.S. at 531.
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Other reasons, such as missing witnesses, may justify appropriate delay. Id. Delay which is
attributable in whole or in part to the defendant may even constitute a waiver of a speedy trial
claim. Munoz, 991 S.W.2d at 822.
       The court administrator testified that she essentially put the case on hold while waiting
to receive word of appellant’s release from the DAPA facility. She relied upon appellant and
his mother to provide her with this information.3 Afterwards, the case essentially “fell through
the cracks” because no one initiated efforts to determine appellant’s status with DAPA for
several months. Thus, the record reflects that the reasons for the delay in this case are not
attributable to the State. Instead, the delay began as a result of appellant’s efforts to be excused
from court appearances while in rehab. Accordingly, the “reason for the delay” factor does not
weigh against the State. See Barker, 407 U.S. at 531.
       Defendant’s Efforts to Obtain a Speedy Trial
       A defendant has no duty to bring himself to trial because the primary burden rests upon
the courts and the prosecution to insure that cases are brought to trial. Barker, 407 U.S. at 527.
However, a defendant is not without any responsibility to assert his right. Id. at 528. The
failure of a defendant to assert his right to a speedy trial will make it difficult to prove that he
was denied a speedy trial. Id. at 532. The longer the delay, the more likely it is that a defendant
who wanted a speedy trial would take some action to obtain one. Id. at 531. A defendant who
seeks a dismissal instead of a speedy trial weakens his case because it shows a desire for no trial
rather than a speedy trial. Zamorano v. State, 84 S.W.3d at 651 n.40; State v. Jones, 168
S.W.3d 339, 348 (Tex. App.—Dallas 2005, pet. ref’d).
       Appellant and his mother testified that they had contacted Brown County officials after
he was released from the DAPA program to determine the status of the case. However, they did
not provide many specifics about these conversations regarding the dates of the calls or with
whom they spoke. Neither of them testified of informing the trial court in writing of appellant’s
change in status after seeking to be excused from appearing in court. Furthermore, appellant
did not file a motion for a speedy trial. Instead, he filed a motion to dismiss on speedy trial
grounds approximately two weeks prior to trial. Accordingly, we conclude this factor weighs
against appellant.




       3
        Appellant’s mother testified that he remained in the DAPA facility for a full year.
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       Prejudice to the Defendant
       Prejudice to a defendant should be assessed in light of the interests the speedy trial right
was designed to protect, i.e., preventing oppressive pretrial incarceration, minimizing anxiety
and concern of the accused, and limiting the possibility that the defense will be impaired.
Barker, 407 U.S. at 532. The most serious of these interests is the possibility of impairment to
the defense because the inability of a defendant adequately to prepare his case skews the
fairness of the entire system. Id. The defendant has the initial burden of showing some
prejudice, although showing actual prejudice is not required. Munoz, 991 S.W.2d at 826. When
the defendant makes a prima facie showing of prejudice, the burden shifts to the State to show
the defendant suffered no serious prejudice beyond that which ensued from the ordinary and
inevitable delay. Id.
       Appellant asserted that he was prejudiced by the delay because he was concerned about
what might happen with the charge. He further testified that he was anxious about the charge.
He based his concerns on a head injury that he had previously suffered and on his limited
financial resources. He also testified that he did not remember being arrested. We conclude
that any prejudice suffered by appellant by the delay is equivocal at best. While appellant’s
testimony that he could not remember being arrested indicates an impairment of his defense at
trial, he attributed the memory loss to a preexisting head injury that likely would have impaired
his memory had the trial occurred sooner. With respect to his concern about the charges, the
evidence does not establish concern and anxiety attributable to the delay apart from the concern
that a person charged with a serious offense would normally experience.
       Conclusion
       Weighing in favor of finding a violation of appellant’s speedy trial right is the fact of a
lengthy delay. However, the cause of the delay was not attributable to the State. Appellant’s
lack of effort to obtain a speedy trial is a factor that weighs against him, and any prejudice that
appellant suffered from the delay is not clear. Applying a de novo standard of review to the
legal components of appellant’s claim, we conclude that the combined weight of the four
Barker factors shows that his right to a speedy trial was not violated. Appellant’s sole issue is
overruled.




                                                5
                                       This Court’s Ruling
        The judgment of the trial court is affirmed.




                                                             TERRY McCALL
                                                             JUSTICE

August 23, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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