                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                NO. 2-06-420-CR
                                NO. 2-06-421-CR


PATRICE MURPHY                                                      APPELLANT

                                         V.

THE STATE OF TEXAS                                                       STATE

                                     ------------

            FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

                                     ------------

                                    OPINION

                                     ------------

                                 I. INTRODUCTION

      The question this court is asked to answer is whether the trial court erred

by denying Appellant Patrice Murphy’s motion to dismiss based on her claim

that her right to a speedy trial was violated.1 Because Murphy did little to seek




      1
          … See U.S. Const. amend. VI; Tex. Const. art. I, § 10.
a speedy trial and because she suffered nominal personal or defense prejudice

from a lengthy delay that was largely attributable to the State, we will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      On March 25, 1998, Cooke County Sheriff’s Deputy Bobby Faglie was

on patrol when he saw a green Jeep Cherokee leave a rest stop near the 489

mile marker on northbound Interstate 35. As the Jeep entered the highway,

Faglie noticed that it failed to signal. As Faglie watched, the Jeep crossed the

center stripe between the northbound lanes, then veered back over the yellow

stripe onto the shoulder. Faglie followed the Jeep for approximately a half mile.

Believing that the driver’s faculties were impaired, he initiated a stop.

      The driver, Murphy, did not have a driver’s license with her and identified

herself with an Illinois traffic citation. The Jeep was a rental vehicle rented to

Tarita James, who was riding as a passenger. When Faglie inquired where they

were going and where they had been, Murphy responded that they had been

sleeping at the rest stop and were still groggy, and that they were going to St.

Louis, Missouri, after a two-week stay in Dallas, visiting James’s aunt.

      Officer Faglie had Murphy exit the Jeep and asked her if the vehicle had

insurance. When Murphy responded that she did not have insurance for the

Jeep, Faglie went to the passenger side of the vehicle and made the same

inquiry to James. She handed Faglie a rental agreement, issued in James’s

                                        2
name from St. Louis International Airport, which showed that the Jeep was due

back two days before, on March 23, 1998. James told Faglie that they were

in Dallas for two days and could not find her aunt’s house.

      Faglie determined that Murphy was not intoxicated and issued a warning

citation for failure to indicate a lane change and failure to maintain a single lane

of traffic. He gave a warning citation to Murphy and then asked James for

consent to search the vehicle; she consented both verbally and in writing.

      During his initial search of the vehicle, Faglie found two purses on the

center console of the vehicle. In the purses, he found a combined total of

$6,636, and in James’s purse he found five small bags of cocaine. Faglie

handcuffed James and Murphy and placed them under arrest, while his partner

read James and Murphy their Miranda rights.

      When Faglie and his partner opened the hatchback of the vehicle, they

found several shopping bags and nine suitcases, seven of which contained

eighty-two insulation-wrapped packages totaling over four hundred pounds of

ninety-one percent pure cocaine and a forty-eight percent mixture of

amphetamine. Murphy and James were indicted for the offenses of possession

of cocaine over 400 grams and possession of amphetamines over 400 grams.

On January 20, 2000, the State filed a notice to consolidate Murphy’s and




                                         3
James’s cases; however, on August 9, 2000, the State withdrew its notice to

consolidate the cases and proceeded against Murphy and James separately.

     James was initially found guilty and sentenced to two life sentences by

a jury. James appealed to this court. See James v. State, 102 S.W.3d 162,

167 (Tex. App.—Fort Worth 2003, pet. ref’d). Although this court held that

Faglie had reasonable suspicion to stop Murphy, and that Faglie had both

written and verbal consent to search the vehicle, we reversed James’s

convictions on January 9, 2003, holding that James had been harmed by the

improper admission of a prior conviction. Id. at 172–73, 182. This court

remanded James’s case back to the trial court. Id. at 182. Afterwards, on

February 3, 2005, James entered into a plea agreement with the State. The

terms of the agreement were that James would plead nolo contendere to both

charges, agree to be sentenced to twenty years’ incarceration, and agree to

testify against Murphy.

     The clerk’s record shows a flurry of activity pertaining to Murphy’s case

by both Murphy and the State between her May 14, 1998 2 indictment and

August 2000.     During this period, Murphy filed her own motions for

continuance on July 07, 1998, and on December 03, 1998.          Murphy also


     2
      … Murphy was indicted for possession of cocaine on May 14, 1998, and
possession of amphetamine on June 25, 1998.

                                     4
agreed to the State’s motions for continuance filed April 08, 1999, June 14,

1999, June 23, 1999, and February 18, 2000. Following these motions, the

trial court set an August 21, 2000 trial date.

      The record then shows no activity concerning Murphy’s cases for nearly

four years. But on June 09, 2004, the record shows that the State requested

a jury trial setting. The trial court set a trial date of November 1, 2004. The

trial court also issued an order setting a September 9, 2004 hearing concerning

the sufficiency of Murphy’s bond.      The day before the hearing was to be

conducted, Murphy, citing medical reasons, filed a motion for continuance. On

October 29, 2004, again citing medical reasons, Murphy filed a motion for

continuance concerning the November 1, 2004 trial date. Murphy’s trial was

reset for February 3, 2005. Murphy again filed a motion for continuance. In

this motion, Murphy’s attorney alleged a scheduling conflict. On October 28,

2005, Murphy waived her right to a jury trial and her trial was eventually reset

for November 1, 2005.

      On November 1, 2005, Murphy appeared for trial with counsel and filed

a motion to dismiss asserting that she had been deprived of her right to a

speedy trial. She also filed an application for probation. Murphy, who was now

pregnant, entered open pleas of guilty for both charges and the trial court found

her guilty. The trial court set the punishment hearing for February 17, 2006—a

                                       5
date that allowed Murphy to travel back to Chicago, where she had been living

for the previous five years, and have her baby. Murphy was sentenced to

twenty years’ incarceration. On March 20, 2006, Murphy filed a motion for

new trial, claiming that her pleas were entered into involuntarily and that she

had received ineffective assistance of counsel. W ithout specifying on which

grounds Murphy’s motion was granted, the trial court granted a new trial.

Murphy’s case was then set for jury trial on July 17, 2006. On July 10, 2006,

with new counsel, Murphy again requested another continuance and also filed

a motion to dismiss, claiming the State failed to provide her a speedy trial. The

trial court granted the continuance and scheduled a hearing on the motion to

dismiss.   After the hearing, the trial court denied Murphy’s motion.          On

September 20, 2006, a jury found Murphy guilty of both charges. Two days

later, the trial court assessed punishment at twenty years’ incarceration for

each charge, with both sentences to run concurrently. This appeal followed.

                                III. D ISCUSSION

      In her sole point, Murphy argues that the trial court erred by denying her

motion to dismiss. Citing both the United States and Texas Constitutions,

Murphy specifically complains that her right to a speedy trial was violated.




                                       6
      A.    The Right to a Speedy Trial

      The Sixth Amendment to the United States Constitution and article 1,

section 10 of the Texas Constitution guarantee an accused the right to a

speedy trial. See U.S. Const. amend. VI; Tex. Const. art. I, § 10; see also

Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002); Orand v.

State, 254 S.W.3d 560, 565 (Tex. App.—Fort Worth 2008, pet. ref’d). Texas

courts analyze claims of a denial of this right, both under the federal and state

constitutions, the same. See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim.

App. 1992). The right attaches once a person becomes an “accused,” that is,

once one is arrested or charged. United States v. Marion, 404 U.S. 307, 321,

92 S. Ct. 455, 461 (1971) (“[I]t is either a formal indictment or information or

else the actual restraints imposed by arrest and holding to answer a criminal

charge that engage the particular protections of the speedy-trial provision of the

Sixth Amendment.”). Supreme Court precedent requires state courts to analyze

federal constitutional speedy trial claims “on an ad hoc basis” by weighing and

then balancing the four Barker v. Wingo factors: 1) length of the delay, 2)

reason for the delay, 3) assertion of the right, and 4) prejudice to the accused.

407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972); State v. Munoz, 991

S.W.2d 818, 821 (Tex. Crim. App. 1999); Orand, 254 S.W.3d at 565. While

the State has the burden of justifying the length of delay, the defendant has the

                                        7
burden of proving the assertion of the right and showing prejudice. See Barker,

407 U.S. at 531, 92 S. Ct. at 2192; see also Ex parte McKenzie, 491 S.W.2d

122, 123 (Tex. Crim. App. 1973) (stating that “if an accused made a prima

facie showing of prejudice, the State must carry the obligation of proving that

the accused suffered no serious prejudice beyond that which ensued from the

ordinary and inevitable delay”). The defendant’s burden of proof on the latter

two factors “varies inversely” with the State’s degree of culpability for the

delay. Robinson v. Whitley, 2 F.3d 562, 570 (5th Cir. 1993) (citing Doggett

v. United States, 505 U.S. 647, 657, 112 S. Ct. 2686, 2693 (1992)). Thus,

the greater the State’s bad faith or official negligence and the longer its actions

delay a trial, the less a defendant must show actual prejudice or prove diligence

in asserting his right to a speedy trial.    Cantu v. State, 253 S.W.3d 273,

280–81 (Tex. Crim. App. 2008).

      The Barker test is triggered by a delay that is unreasonable enough to be

“presumptively prejudicial.”    Doggett, 505 U.S. 647, 652 n.1, 112 S. Ct.

2686, 2691 n.1 (1992).         There is no set time element that triggers the

analysis, but the court of criminal appeals has held that a delay of four months

is not sufficient while a seventeen-month delay is. Pete v. State, 501 S.W.2d

683, 687 (Tex. Crim. App. 1973) (“Appellant herein was tried [for rape]

approximately four months after he was bench warranted from the Texas

                                        8
Department of Corrections. It is our opinion that this short period of time could

in no way be construed as ‘presumptively prejudicial.’“); 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.”); see

also Doggett, 505 U.S. at 651, 652 n.1, 112 S. Ct. 2686, 2691 n.1 (noting

that courts have generally found post-accusation delay “presumptively

prejudicial at least as it approaches one year”).        Once the Barker test is

triggered, courts must analyze the speedy trial claim by first weighing the

strength of each of the Barker factors and then balancing their relative weights

in light of “the conduct of both the prosecution and the defendant.” Zamorano,

84 S.W.3d at 648 (quoting Barker, 407 U.S. at 530, 92 S. Ct. at 2192). No

one factor is either a necessary or sufficient condition to the finding of a

deprivation of the speedy trial right. Id. Instead, the four factors are related

and must be considered together along with any other relevant circumstances.

Barker, 407 U.S. at 530, 92 S. Ct. at 2192.              As no factor possesses

“talismanic qualities,” courts must engage “in a difficult and sensitive balancing

process” in each individual case. Zamorano, 84 S.W.3d at 648 (quoting Barker,

407 U.S. at 533, 92 S. Ct. at 2192).




                                         9
         Dismissal of the charging instrument with prejudice is mandated only

upon a finding that an accused’s speedy trial right was actually violated. See

Strunk v. United States, 412 U.S. 434, 440, 93 S. Ct. 2260, 2271 (1973).

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.    Cantu, 253 S.W.3d at 281.      Thus, 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. See Barker, 407 U.S. at

534–35, 92 S. Ct. at 2192 (rejecting defendant’s claim of a speedy trial

violation despite a five-year delay when the record strongly indicated that the

defendant did not actually want a speedy trial). The constitutional right is that

of a speedy trial, not dismissal of the charges. Cantu, 253 S.W.3d at 281.

         The amorphous quality of the right also leads to the unsatisfactorily

severe remedy of dismissal of the indictment when the right has been deprived.

Id. This is indeed a serious consequence because it means that a defendant

who may be guilty of a serious crime will go free, without having been tried.

Id. Such a remedy is more serious than an exclusionary rule or a reversal for

a new trial, but it is the only possible remedy. Id.

                                       10
      B.     Standard of Review

      In reviewing the trial court’s ruling on an appellant’s speedy trial claim,

we apply a bifurcated standard of review: an abuse of discretion standard for

the factual components, and a de novo standard for the legal components.

Zamorano, 84 S.W.3d at 648.              Review of the individual Barker factors

necessarily involves fact determinations and legal conclusions, but the balancing

test as a whole is a purely legal question. Cantu, 253 S.W.3d at 281.

      Under this standard, we defer not only to a trial judge’s resolution of

disputed facts, but also to the trial judge’s right to draw reasonable inferences

from those facts.        Id. at 282.   In assessing the evidence at a speedy trial

hearing, the trial judge may completely disregard a witness’s testimony, based

on   credibility   and     demeanor    evaluations,   even   if   that   testimony   is

uncontroverted. Id. The trial judge may disbelieve any evidence so long as

there is a reasonable and articulable basis for doing so. Id. And all of the

evidence must be viewed in the light most favorable to the trial judge’s ultimate

ruling. Id. Because Murphy lost in the trial court on her speedy trial claim, we

presume that the trial judge resolved any disputed fact issues in the State’s

favor, and we defer to the implied findings of fact that the record supports. Id.

at 282.




                                           11
      C.    Analysis of the Barker Factors

            1.     Length of Delay

      The length of delay is a “triggering mechanism” for analysis of the other

Barker factors. Barker, 407 U.S. at 530–32, 92 S. Ct. at 2192–93; Orand,

254 S.W.3d at 566.        “Until there is some delay which is presumptively

prejudicial, there is no necessity for inquiry into the other [Barker] factors that

go into the balance.” Barker, 407 U.S. at 530–32, 92 S. Ct. at 2192–93.

Presumptive prejudice does not necessarily indicate a statistical probability of

prejudice; it simply marks the point at which courts deem the delay

unreasonable enough to trigger the Barker inquiry. Doggett, 505 U.S. at 652

n.1, 112 S. Ct. 2686, 2691 n.1; Munoz, 991 S.W.2d at 821–21. This Barker

factor “is actually a double enquiry.” Doggett, 505 U.S. at 651, 112 S. Ct. at

2690.

      “Simply to trigger a speedy trial analysis, an accused must allege
      that the interval between accusation and trial has crossed the
      threshold dividing ordinary from ‘presumptively prejudicial’ delay,
      (citation omitted), since, by definition, he cannot complain that the
      government has denied him a ‘speedy’ trial if it has, in fact,
      prosecuted his case with customary promptness. If the accused
      makes this showing, the court must then consider, as one factor
      among several, the extent to which the delay stretches beyond the
      bare minimum needed to trigger judicial examination of the claim.”
      Id.




                                        12
      The State here concedes that “the initial trial of Murphy was not speedy.”

We agree. Specifically, we consider the almost four-year inactivity between

August 2000 and June 2004 regarding Murphy’s case sufficient to trigger

consideration of the other Barker factors.

            2.    Reasons for the Delay

      Under Barker, “different weights should be assigned to different reasons”

for the delay. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. This factor seeks

to ensure that courts not simply concentrate on the sheer passage of time

without taking into account the reasons underlying the delay. See, e.g., Rashad

v. Walsh, 300 F.3d 27, 34 (1st Cir. 2002). The inquiry into causation involves

a sliding scale: deliberately dilatory tactics must be weighed more heavily

against the State than periods of delay resulting from negligence. Barker, 407

U.S. at 531, 92 S. Ct. at 2192. Furthermore, valid reasons for delay should

not be weighed against the State. See Munoz, 991 S.W.2d at 824. And delay

which is attributable in whole or in part to the defendant can weigh against the

defendant and may even constitute a waiver of a speedy trial claim.         See

Barker, 407 U.S. at 529, 92 S. Ct. at 2191–92 (noting that delay attributable

solely to defendant “may be given effect under standard waiver doctrine”); see

also Dickey v. Florida, 398 U.S. 30, 48, 90 S. Ct. 1564, 1574 (1970)

(Brennan, J., concurring) (defendant may be “disentitled to the speedy-trial

                                      13
safeguard in the case of a delay for which he has, or shares, responsibility”);

United States v. Anderson, 902 F.2d 1105, 1110 (2nd Cir.), cert. denied, 498

U.S. 867 (1990) (holding that there was no speedy trial violation where, among

other things, defense counsel agreed to delays and continuances for purposes

of plea negotiations).

      Although the period of time between Murphy’s arrest in March 1998 and

her eventual trial in November 2005 exceeded seven years, this court perceives

three distinct time periods: 1) the time period between her arrest and the

setting of an August 21, 2000 trial date, 2) the period of inactivity between

this trial date and the State’s request for a jury trial in June 2004, and 3) the

time period between that request and her entering pleas of guilty on November

1, 2005.

      Here, the State offered evidence at the motion to dismiss hearing that

Murphy was the first to request multiple continuances and also agreed to

multiple continuances with the State during the first period of time. There was

also ample evidence that Murphy had requested numerous continuances during

the third time period. The trial court could have reasonably concluded that

Murphy was responsible for both of these periods of delay.

      The second time period, however, is quite a different matter.           No

evidence was presented as to why there was no activity during this nearly four-

                                       14
year period. The primary burden of insuring that cases are brought to trial rests

on the courts and prosecution. Barker, 407 U.S. at 527, 92 S. Ct. at 2190.

With this burden in mind, the trial court could have only reasonably concluded

negligence on the part of the State to prosecute the case. This period of time

must be counted against the State. But because there was no evidence that

the State was engaging in purposeful dilatory tactics, it does not count heavily

against the State. See id. In sum, the State did not justify most of the lengthy

delay in this case. Consequently, this factor tilts in favor of Murphy’s claim

that she was denied a speedy trial.

            3.     Assertion of the Right

      We next consider the extent to which Murphy affirmatively sought a

speedy trial. Barker, 407 U.S. at 531–32, S. Ct. at 2192. The nature of the

speedy trial right makes “it impossible to pinpoint a precise time in the process

when the right must be asserted or waived, but that fact does not argue for

placing the burden of protecting the right solely on defendants.” Id. at 527, 92

S. Ct. at 2193. Even though it is the State’s duty to bring the defendant to

trial, it is the defendant’s duty to assert the right to a speedy trial. Id. at

527–28, 92 S. Ct. at 2193 (“We think the better rule is that the defendant’s

assertion of or failure to assert his right to a speedy trial is one of the factors

to be considered in an inquiry into the deprivation of the right.”).

                                        15
       Whether and how a defendant asserts this right is closely related to the

other three factors because the strength of the defendant’s efforts will be

shaped by them.      Id. at 531, 92 S. Ct. at 2196.       “The more serious the

deprivation, the more likely a defendant is to complain.”          Id.   Thus, the

defendant’s assertion of the right to a speedy trial—or the failure to assert it—is

entitled to strong evidentiary weight in determining whether the defendant is

being deprived of the right. Id. at 531–32, 92 S. Ct. at 2196. Filing for a

dismissal instead of a speedy trial generally weakens 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. If a defendant fails to first seek a speedy trial before seeking

dismissal of the charges, the defendant should provide cogent reasons for this

failure.   Id.; see also Parkerson v. State, 942 S.W.2d 789, 791 (Tex.

App.—Fort Worth 1997, no pet.)

       Repeated requests for a speedy trial weigh heavily in favor of the

defendant, while the failure to make such requests supports an inference that

the defendant does not really want a trial, only a dismissal. Barker, 407 U.S.

at 534–36, 92 S. Ct. 2192–95 (“[B]arring extraordinary circumstances, we

would be reluctant indeed to rule that a defendant was denied this

constitutional right on a record that strongly indicates . . . that the defendant

did not want a speedy trial.”); see also Harris, 827 S.W.2d at 957

                                        16
(“[A]ppellant’s lack of a timely demand for a speedy trial indicates strongly that

he did not really want a speedy trial.”); United States v. Palmer, 537 F.2d

1287, 1288 (5th Cir. 1976) (“[T]he point at which the defendant asserts his

right is important because it may reflect the seriousness of the personal

prejudice he is experiencing”).

      In Palmer, the Fifth Circuit held that because the defendant ”first asserted

his right thirty months after his arrest, which was one month after he first

received notification of his indictment, and he complained at that time only of

the   22-month    pre-indictment   delay,”   his   “silence   during   the   entire

pre-indictment period work[ed] against him because it suggest[ed] that any

hardships he suffered were either minimal or caused by other factors.” Palmer,

537 F.2d at 1288.

      Likewise, in this case, Murphy did not assert her right to a speedy trial

until she filed her motion to dismiss on November 1, 2005, ninety-two months

after she had been arrested. She again filed a motion to dismiss, citing violation

of her speedy trial right, July 10, 2006. This motion was filed more than

nineteen months after she had sought and gained multiple continuances

regarding her November 1, 2004 trial date.

      Even though Murphy testified that she had asked her attorney several

times why her trial had not commenced, the trial court could have reasonably

                                       17
concluded that Murphy’s silence during the period between her arrest and these

motions indicated that Murphy was not, in reality, asserting her right to a

speedy trial, but rather wanted only a dismissal. Because Murphy did not assert

her right to a speedy trial for a lengthy period of time, and then once she did

assert the right it was in the form of a motion to dismiss the charges against

her, we conclude that this factor weights against Murphy and against her claim

that she was denied her right to a speedy trial.

            4.    Prejudice

      Because “pretrial delay is often both inevitable and wholly justifiable,” the

fourth Barker factor examines whether and to what extent the delay has

prejudiced the defendant.     Barker, 407 U.S. at 532, 92 S. Ct. at 2193;

Doggett, 505 U.S. at 656, 112 S. Ct. at 2692. When a court analyzes the

prejudice to the defendant, it must do so in light of the defendant’s interests

that 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. See

Dragoo v. State, 96 S.W.3d 308, 315 (Tex. Crim. App. 2003) (citing Barker,

407 U.S. at 532, 92 S. Ct. at 2193).

      Impairment of one’s defense is the most difficult form of speedy trial

prejudice to prove because time’s erosion of exculpatory evidence and

                                       18
testimony can rarely be shown. Barker, 407 U.S. at 532, 92 S. Ct. at 2193;

Dragoo, 96 S.W.3d at 315. The possibility that the accused’s defense will be

impaired by dimming memories and loss of exculpatory evidence is the most

serious interest that the right to speedy trial protects because the inability of a

defendant to adequately prepare his case skews the fairness of the entire

system. Doggett, 505 U.S. at 654, 112 S. Ct. at 2692. Affirmative evidence

of particularized prejudice is not essential to every speedy trial claim because

excessive delay presumptively compromises the reliability of a trial in ways that

neither party can prove or even identify. Id. at 655, 112 S. Ct. at 2693. And

the presumption of prejudice grows and intensifies over time. Id. at 656, 112

S. Ct. at 2693. But the presumption of prejudice to a defendant’s ability to

defend himself can be “extenuated . . . by the defendant’s acquiescence” in the

delay. Id. at 658, 112 S. Ct. 2694.

      Here, except for the first few months after her arrest, Murphy was out

on bond at all relevant times. Thus, pretrial incarceration serves as a minimal

factor in determining whether she suffered prejudice. And even though Murphy

testified that over the last few years it seemed she lived her life “in jail . . . in

the real world” because of her concerns of when she would need to come to

Texas in order to participate in her trial, we conclude that this is nothing more

than “generalized expressions of anxiety and concern [that] amount to little

                                         19
more than a nominal showing of prejudice.” Goodrum v. Quarterman, 547 F.3d

249, 263 (5th Cir. 2008). Finally, even presuming that the length of delay

impaired Murphy’s defense, that prejudice, as well, was minimal. While Murphy

testified that she had difficulty “remember[ing] a lot of things,” she never

testified how this might impair her defense at trial. Murphy does not claim that

witnesses have died or memories, other than her own, have diminished due to

the delays relating to her case. In short, on this record, the trial court could

have reasonably concluded that Murphy failed to demonstrate any actual

prejudice or that any presumed prejudice was minimal. This factor weighs

against finding Murphy’s speedy trial right was violated.

            5.    Balancing the Factors

      Having addressed the Barker factors, we must now balance them.

Weighing in favor of finding that Murphy’s speedy trial right was violated are

the facts that the delay here was excessive and that the State offered no valid

reason for the lion’s share of the delay in this case—the nearly four-year gap of

inactivity pertaining to these charges. Weighing against finding a violation of

Murphy’s speedy trial right is the fact that she failed to assert her right until

more than six years after her indictment, and then, she asserted that right in

the form of a motion to dismiss and on the eve of trial—indicating that she did

not really want a speedy trial, but wanted only a dismissal of the charges.

                                       20
Further, there is a lack of any substantial personal or defense prejudice resulting

from the delay. We hold that the weight of these factors, balanced together,

supports the trial judge’s ruling to deny Murphy’s motion to dismiss and that

there was no violation of her right to a speedy trial. See Barker, 407 U.S. at

534, 92 S. Ct. at 2194 (holding that there was no speedy trial right violation

because defendant was not seriously prejudiced by five-year delay between

arrest and trial and that defendant did not really want a speedy trial, rather, a

dismissal of charges); Dragoo, 96 S.W.3d at 315 (holding that there was no

speedy trial right violation because defendant demonstrated no serious prejudice

by more than three-year delay between arrest and trial and waited until just

before trial to assert his right to a speedy trial); Phipps v. State, 630 S.W.2d

942, 946 (Tex. Crim. App. 1982) (holding that there was no speedy trial right

violation where defendant demonstrated no prejudice by four-year delay

between arrest and trial and defendant waited until one month before trial to

assert his right). We overrule Murphy’s sole point.




                                        21
                            IV. C ONCLUSION

     Having overruled Murphy’s sole point, we affirm the trial court’s

judgment.

                                       DIXON W. HOLMAN
                                       JUSTICE

PANEL: GARDNER and WALKER, JJ.; and DIXON W. HOLMAN, J. (Senior
Justice, Retired, Sitting by Assignment).

WALKER, J. concurs without opinion.

PUBLISH

DELIVERED: February 5, 2009




                                  22
