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                                MEMORANDUM OPINION

                                        No. 04-09-00304-CR

                                        Stephen CENTENO,
                                             Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                     From the County Court at Law No. 7, Bexar County, Texas
                                     Trial Court No. 250544
                         Honorable Monica E. Guerrero, Judge Presiding

Opinion by:      Catherine Stone, Chief Justice

Sitting:         Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: June 2, 2010

AFFIRMED

           Stephen Centeno was convicted by a jury of assault bodily injury. On appeal, Centeno

contends the trial court erred by: (1) denying his motion for a speedy trial; (2) failing to sua sponte

grant a mistrial after the State elicited testimony regarding Centeno’s post-arrest silence; and (3)

overruling an objection to the State’s closing argument. We affirm the trial court’s judgment.
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                                             SPEEDY TRIAL

        In his first issue, Centeno contends the trial court erred in denying his motion to dismiss for

lack of a speedy trial. Courts must balance four factors, commonly referred to as the “Barker”

factors, when analyzing the grant or denial of a speedy trial claim. Barker v. Wingo, 407 U.S. 514,

530 (1972); see Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997). These factors are:

(1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and

(4) prejudice to the defendant. Barker, 407 U.S. at 530; Johnson, 954 S.W.2d at 771. No single

factor is necessary or sufficient to establish a violation of the right to a speedy trial; rather, they are

related factors and must be considered together. Barker, 407 U.S. at 533. In conducting this

balancing test, “the conduct of both the prosecution and the defendant are [to be] weighed.” Id. at

530.

        In reviewing the trial court’s ruling on a 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 v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). “Review of

the individual Barker factors necessarily involves fact determinations and legal conclusions, but

‘[t]he balancing test as a whole . . . is a purely legal question.’” Cantu v. State, 253 S.W.3d 273, 282

(Tex. Crim. App. 2008) (quoting Zamorano, 84 S.W.3d at 648 n.19). Under the standard we are to

apply, we defer not only to the trial judge’s resolution of disputed facts, but also to the judge’s right

to draw reasonable inferences from those facts. Id. “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 is allowed to

disbelieve any evidence so long as there is a reasonable and articulable basis for doing so. Id. “And


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all of the evidence must be viewed in the light most favorable to [the trial judge’s] ultimate ruling.”

Id.

A. Length of Delay

       The length of delay is a “triggering mechanism” for analysis of the remaining Barker factors,

Barker, 407 U.S. at 530, and is measured from the date the defendant is arrested or formally accused.

Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). If the accused is able to show a

presumptively prejudicial delay, we must then consider the extent to which the delay stretches

beyond the bare minimum needed to trigger judicial examination of the claim. Zamorano, 84

S.W.3d at 649. Texas courts have generally held a delay of eight months or more is “presumptively

prejudicial” and will trigger a speedy trial analysis. Zamorano, 84 S.W.3d at 649 n.26 (citing Harris,

827 S.W.2d at 956)

       Centeno was arrested on April 25, 2008, and his trial commenced on April 14, 2009.

Accordingly, the delay is sufficient to trigger a speedy trial analysis. Id.

B. Reason for the Delay

       Once it is determined that a presumptively prejudicial delay has occurred, the State bears the

burden of justifying the delay. State v. Rangel, 980 S.W.2d 840, 843 (Tex. App.—San Antonio

1998, no pet.). Intentional prosecutorial delay is weighed heavily against the State, while more

“neutral” reasons, such as negligence or overcrowded dockets, are weighed less heavily against it.

Zamorano, 84 S.W.3d at 649; Rangel, 980 S.W.2d at 843-44. “In the absence of an assigned reason

for the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice

the defense nor a valid reason for the delay.” Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App.

2003). A valid reason serves to justify an appropriate delay. Id.


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       As previously noted, Centeno was arrested on April 25, 2008. On June 19, 2008, Centeno

failed to appear for a pre-trial hearing, and a capias was issued for his arrest. After posting a new

bond, Centeno requested two months to hire an attorney. Although the case had several re-sets, the

record reflects that only one re-set from February 17, 2009, to March 27, 2009, was based on a

request by the State for a continuance. The record does not, however, reflect a reason for the re-sets

from August of 2008 to February of 2009, a period of five months. Because nothing in the record

indicates the reason for the delay and the State has failed to offer any justification, this factor is

weighed against the State, since the ultimate responsibility for such circumstances must rest with the

government rather than with the defendant. See Marquez v. State, 165 S.W.3d 741, 748 (Tex.

App.—San Antonio 2005, pet. ref’d). However, because there is no evidence that the State

deliberately attempted to delay the trial, this factor is not weighed heavily against the State. Id.

C. Assertion of the Right

       The third factor requires a determination of whether the defendant asserted his right to a

speedy trial. Munoz v. State, 991 S.W.2d 818, 825 (Tex. Crim. App. 1999). The defendant’s

assertion of that right is entitled to strong evidentiary weight when determining whether the

defendant was deprived of his right to a speedy trial. Barker, 407 U.S. at 531-32. “Although a

motion to dismiss notifies the State and the court of the speedy trial claim, a defendant’s motivation

in asking for dismissal rather than a prompt trial is clearly relevant, and may sometimes attenuate

the strength of his” speedy trial claim. Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App.

1983). A defendant’s “lack of a timely demand for a speedy trial indicates strongly that he did not

really want a speedy trial.” Harris, 827 S.W.2d at 957.




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        Although Centeno’s attorney asserted that he had requested a speedy trial at each setting, the

record only contains evidence that Centeno filed a motion requesting a dismissal on the basis of

speedy trial on the day trial commenced. Centeno’s speedy trial claim is attenuated by the fact that

he sought dismissal rather than a speedy trial. Phillips, 650 S.W.2d at 401. In view of Centeno’s

delay in asserting his speedy trial right and his request for a dismissal, this factor weighs against

Centeno.

        D. Prejudice

        The final Barker factor is prejudice to the defendant, which is assessed in the light of the

interests that the speedy trial right is designed to protect. Munoz, 991 S.W.2d at 826. These interests

are: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the

accused; and (3) limiting the possibility that the defense will be impaired. Id. “Of these subfactors

of the last Barker factor, ‘the most serious is the last, because the inability of a defendant adequately

to prepare his case skews the fairness of the entire system.’” Id. (quoting Barker, 407 U.S. at 532-

33). The defendant has the burden to make some showing of prejudice, although a showing of actual

prejudice is not required. Id. 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. (quoting Ex parte McKenzie, 491 S.W.2d 122,

123 (Tex. Crim. App. 1973)).

        There is no showing of prejudice in the record. Centeno was not incarcerated while he was

awaiting trial; therefore, he endured no oppressive pretrial incarceration. Although Centeno’s

attorney stated that Centeno suffered substantial anxiety and concern, the record is devoid of

evidence as to any anxiety or concern Centeno may have had. Finally, the record contains no


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evidence suggesting Centeno’s case was impaired or hampered by the delay. Therefore, the fourth

Barker factor weighs against Centeno.

E. Balancing of the Four Barker Factors

       Although the twelve-month delay in this case triggered a speedy trial analysis, approximately

three months of the delay is directly attributable to Centeno. Moreover, the record reflects that

Centeno did not assert his right to a speedy trial until the day trial commenced and then sought a

dismissal. Finally, the record contains no evidence that Centeno was prejudiced by the delay.

Having reviewed the four factors, we conclude the trial court did not err in denying Centeno’s

motion to dismiss.

                                      POST-ARREST SILENCE

       In his second issue, Centeno asserts that the trial court erred in not sua sponte declaring a

mistrial when the State elicited testimony regarding Centeno’s post-arrest silence. Centeno voiced

no objection to the State’s questioning at trial, and the use of post-arrest silence is not fundamental

error. See Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). Accordingly, we reject

Centeno’s argument that the trial court had a sua sponte duty to take action. By failing to object,

Centeno failed to preserve this error for our review. See id.; see also Maes v. State, 275 S.W.3d 68,

72 (Tex. App.—San Antonio 2008, no pet.).

       In his third issue, Centeno contends the trial court erred in overruling his objection to the

State’s closing argument commenting on his post-arrest silence. During closing argument, however,

Centeno’s attorney objected as follows: “Your Honor, we’d object. This is an Edwards violation.

We’ve been very patient. He was under arrest.” An Edwards violation occurs when police conduct

a custodial interrogation of a suspect who has requested the assistance of counsel. See Martinez v.


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State, 275 S.W.3d 29, 34 (Tex. App.—San Antonio 2008), pet. stricken, 2009 WL 82362 (Tex.

Crim. App. 2009). Accordingly, because Centeno’s objection at trial does not comport with his

objection on appeal, he has not preserved his third complaint for our review. See Wheatfall v. State,

882 S.W.2d 829, 836 (Tex. Crim. App. 1994).

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                       Catherine Stone, Chief Justice

DO NOT PUBLISH




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