Opinion issued June 27, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00257-CR
                           ———————————
                      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.
                                           5
                   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,

                                            7
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


                                           8
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


                                          9
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.’”).
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      “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.


                                          11
      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).
                                            12
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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