                             NUMBER 13-13-00707-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                           Appellant,

                                            v.

PEDRO ANTONIO GOMEZ,                                                           Appellee.


               On appeal from the County Court at Law No. 1
                       of Cameron County, Texas.


                         MEMORANDUM OPINION
              Before Justices Rodriguez, Garza and Longoria
                 Memorandum Opinion by Justice Garza

       Appellant, the State of Texas, appeals from a judgment granting Pedro Antonio

Gomez’s motion to dismiss for a violation of his right to a speedy trial. By a single issue,

the State contends that the trial court erred in granting the motion. We reverse and

remand.

                                   I.     BACKGROUND
       In July 2011, Cameron County officials charged Gomez with assault, a class “A”

misdemeanor. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West, Westlaw through Chapter

46 2015 R.S.). On November 8, 2013, Gomez filed a motion to dismiss for a violation of

his constitutional right to a speedy trial. Four days later, on November 12, 2013, the trial

court held a hearing on Gomez’s motion.

       The reporter’s record of the hearing consists of seven pages. Gomez’s counsel

alleged that there had been a “long delay” and noted that he was the third attorney to

represent Gomez in the case. Counsel argued that “memories get clouded, witnesses

become unavailable, documents have a tendency to wind up missing or misplaced.”

Gomez did not present any witnesses, testimony, or evidence but urged the trial court to

take judicial notice of all the resettings. The State argued that: (1) there had been no

purposeful undue delay; (2) the court’s docket was overcrowded; (3) Gomez failed to

appear in August 2012, and thereby waived any claim to a speedy trial violation; and (4)

Gomez had not identified any witnesses that he was unable to locate because of the

delay. Like Gomez, the State presented no witnesses or evidence.

       During a short recess, the trial court “looked at the docket” and concluded that “this

was kind of a lot of people’s fault . . . .” The court stated that “it’s just kind of a bunch of

things that happened in this case, to be absolutely honest with you.” The trial court’s

docket sheet reflects that: (1) on August 3, 2012, the “[d]efendant failed to appear”; (2)

on August 2, 2013, Gomez’s counsel failed to appear; (3) on September 6, 2013, Gomez

filed a motion for continuance; and (4) on October 28, 2013, the State filed a motion for

continuance. Otherwise, the eight-page docket sheet reflects numerous resettings and




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“status hearings” without further notation or explanation. The trial court granted the

motion, and this appeal ensued.

                    II.    STANDARD OF REVIEW AND APPLICABLE LAW

       We review a trial court’s ruling on a speedy trial claim under a bifurcated standard

of review, in which we apply an abuse of discretion standard to the trial court’s factual

findings and a de novo standard to the trial court’s legal conclusions. Gonzales v. State,

435 S.W.3d 801, 808–09 (Tex. Crim. App. 2014); Kelly v. State, 163 S.W.3d 722, 726

(Tex. Crim. App. 2005). Here, the facts are undisputed. Thus, “we review de novo

whether there was sufficient presumptive prejudice to proceed to a Barker analysis and

the weighing of the Barker factors, which are legal questions.” Gonzales, 435 S.W.3d at

809.

       The right to a speedy trial is guaranteed by the Sixth Amendment to the United

States Constitution, and is applicable to the states through the Fourteenth Amendment.

U.S. CONST. amends. VI, XIV, § 1; see Barker v. Wingo, 407 U.S. 514, 515 (1972). This

right is also independently guaranteed by the Texas Constitution and the Texas Code of

Criminal Procedure. See TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05

(West, Westlaw through Chapter 46 2015 R.S.). We analyze speedy trial claims by

weighing and then balancing four factors set out in Barker: (1) the length of the delay, (2)

the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and

(4) prejudice to the defendant because of the length of the delay. Gonzales, 435 S.W.3d

at 808 (citing Barker, 407 U.S. at 530).

       Before we engage in an analysis of each Barker factor, however, the accused must

first make a showing that the interval between the accusation and the trial has crossed



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the threshold dividing ordinary and presumptively prejudicial delay. Id. If the defendant

can make a threshold showing of presumptive prejudice, the trial court must then proceed

to consider each of the remaining Barker factors. Id.     No single factor is dispositive.

Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008). Rather, courts must first

weigh each factor’s strength and then balance their relative weights considering other

relevant circumstances, including “the conduct of both the prosecution and the

defendant.” Id. (quoting Barker, 407 U.S. at 530). The burden is on the State to justify

the length of the delay, and the defendant has the burden to prove assertion of the right

and showing prejudice. Id. at 280.

                                     III.   DISCUSSION

   A. Length of the Delay

      The length of the delay is measured from the time the accused is arrested or

formally accused. Gonzales, 435 S.W.3d at 809. Here, the record reflects that Gomez

was arrested on April 27, 2011 and the information was filed August 1, 2011. Thus, the

delay is approximately thirty-one months from arrest or twenty-seven months from formal

charging. The State characterizes the delay as twenty-seven months and concedes that

it is sufficient to trigger a Barker speedy-trial analysis. We agree. A twenty-seven-month

delay is presumptively unreasonable. See Shaw v. State, 117 S.W.3d 883, 889 (Tex.

Crim. App. 2003) (holding that “in general, delay approaching one year is sufficient to

trigger a speedy-trial inquiry”). We conclude that the delay was more than adequate to

find presumptive prejudice and trigger a full Barker analysis. See Gonzales, 435 S.W.3d

at 809.




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       “When the length of delay stretches well beyond the bare minimum needed to

trigger a full Barker analysis, the length of a delay weighs against the State, and the longer

the delay, the more the defendant’s prejudice is compounded.” Id. (citations omitted).

Here, the delay extended far beyond the minimum amount of time required to trigger a

full Barker analysis, and as a result, this factor weighs heavily against the State. Id.

   B. Reasons for the Delay

       In analyzing the second factor—the reasons for the delay—we assign different

weights to different reasons. Id. (citing Barker, 407 U.S. at 531). For instance, deliberate

attempts to delay are weighed heavily, and more neutral reasons, while still considered,

are weighed less heavily. Id. (citing Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim.

App. 2002)).     The State bears the burden of establishing justifications for the

unreasonable delay. Cantu, 253 S.W.3d at 280; Emery v. State, 881 S.W.2d 702, 708

(Tex. Crim. App. 1994).

       Here, the State offered the trial court several reasons to justify the twenty-seven-

month delay: Gomez’s failure to appear, an overcrowded court docket, and the fact that

three different defense attorneys had represented Gomez. The State denied that there

was any purposeful undue delay or any tactical reason for the delay. The State further

noted that Gomez had not identified any witnesses that he was unable to locate because

of the lengthy delay.

       Although the crowded court docket is a neutral reason, and thus is given less

weight, it must still “be considered since the ultimate responsibility for such circumstances

must rest with the government rather than with the defendant.” Barker, 407 U.S. at 531.

Ultimately, because a crowded court docket is not a valid reason to justify the delay, this



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reason must be weighed against the State, albeit not heavily. See Shaw, 117 S.W.3d at

890. Here, however, there is no evidence in the record to support the State’s assertion

regarding the crowded court docket. See Comeaux v. State, 413 S.W.3d 176, 190 (Tex.

App.—Beaumont 2013), aff’d, 445 S.W.3d 745 (Tex. Crim. App. 2014) (citing Dragoo v.

State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003)). Further, nothing suggests that the

State attempted to deliberately delay Gomez’s trial. See Comeaux, 413 S.W.3d at 190–

91. Although the parties agree that three different counsel represented Gomez, the

record is silent regarding the reasons Gomez changed counsel. See id. The record

shows that three delays can be attributed to Gomez: one because of his failure to appear,

a second when his counsel failed to appear, and a third when he requested a continuance.

In contrast, only one delay—a request for a continuance—is expressly attributable to the

State. Regarding the overwhelming majority of the resets, the record is silent as to

whether one of the parties requested the reset or whether the court reset the case sua

sponte. See id. We conclude this factor weighs against Gomez.

   C. Assertion of the Right

       The third factor, the timing of Gomez’s assertion of his right to a speedy trial,

evaluates whether he actually wanted a speedy trial. See Cantu, 253 S.W.3d at 283. An

assertion of a speedy trial right is given great evidentiary weight to determine deprivation

of that right. See Gonzales, 453 S.W.3d at 810–11; Zamorano, 84 S.W.3d at 651.

Therefore, while an individual’s failure to seek a speedy trial does not waive his

constitutional right, it does make it difficult to prevail on such a claim because it strongly

indicates that the defendant did not actually desire a speedy trial. Shaw, 117 S.W.3d at

890; Zamorano, 84 S.W.3d at 651. Moreover, as a detention becomes lengthier, the



                                              6
likelihood increases that someone who actually desired a speedy trial would have actively

sought to obtain one. Shaw, 117 S.W.3d at 890.

       Here, Gomez did not file his motion to dismiss on speedy-trial grounds until

November 8, 2013, approximately twenty-seven months after he was charged. Moreover,

Gomez did not request a speedy trial but instead requested to have his case dismissed,

which weakens his claim that the trial court denied him a speedy trial. See Cantu, 253

S.W.3d at 283 (noting that filing for dismissal rather than for a speedy trial “shows a desire

to have no trial instead of a speedy one”). The record is silent as to whether Gomez

agreed to the resettings. See Henson v. State, 407 S.W.3d 764, 769 (Tex. Crim. App.

2013) (finding appellant failed to preserve violation of a speedy-trial claim where he did

not file a speedy trial motion, did not request a hearing on delays, and agreed to each

reset). We conclude that this factor weighs heavily against Gomez.

   D. Prejudice Because of Length of Delay

       The fourth and final Barker factor focuses on the prejudice, if any, suffered by the

defendant as a result of the delay. Barker, 407 U.S. at 532. The right to a speedy trial is

designed to prevent oppressive pretrial incarceration, minimize the accused’s concern

and anxiety, and, most importantly, limit the possibility that the defense will be impaired.

See Gonzales, 435 S.W.3d at 812 (citing Barker, 407 U.S. at 532).

       In Gonzales, the court of criminal appeals considered whether a defendant’s right

to a speedy trial was violated after a six-year delay caused by the State’s negligence in

failing to pursue the defendant. Gonzales, 435 S.W.3d at 812–15. The Gonzales Court

noted that a defendant is relieved of his burden to demonstrate prejudice if the length of

delay is so excessive that it “presumptively compromises” the reliability of a trial in



                                              7
unidentifiable ways. Id. at 812.    The court further noted that “[w]hen a defendant has

timely asserted his right to a speedy trial [as the defendant had done in Gonzales], it is a

difficult task for the State to prove that the defendant acquiesced in the delay.” Id. at 815.

The court found that the State had presented no record evidence showing that the

defendant had acquiesced in the six-year delay. Id. Thus, the court of criminal appeals

concluded that the State had “failed to vitiate the presumption of prejudice by proving that

[a]ppellant acquiesced to the delay.” Id. at 815.

       Here, Gomez was not incarcerated during the twenty-seven-month delay;

therefore, oppressive pretrial incarceration is not an issue. See id. at 812. We recognize

that the six-year delay in Gonzales is considerably longer than the twenty-seven-month

delay in the present case. However, assuming without deciding that the delay in the

present case was so excessive that it presumptively compromised the reliability of a trial,

see id. at 812, we conclude that the State met its burden to rebut the presumption of

prejudice by showing that Gomez acquiesced to the delay. See State v. Wei, 447 S.W.3d

549, 557 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (“Absent a showing that

appellee acquiesced in the delay, it was the State’s burden to rebut the presumption of

prejudice because appellee was ‘absolved from the requirement to demonstrate

prejudice.’”) (quoting Gonzales, 435 S.W.3d at 812). Unlike the defendant in Gonzales,

Gomez did not timely assert his right to a speedy trial. And although the record is largely

silent as to the reasons for the lengthy delay, three of the delays are attributable to

Gomez. Because the State rebutted the presumption of prejudice by showing that Gomez

acquiesced in the delay, this factor weighs in favor of the State.

   E. Balancing Test



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       Finally, having addressed the four Barker factors, it is necessary to balance them.

Weighing in favor of finding a violation of Gomez’s right to a speedy trial is the extensive

length of the delay. Although the State offered the trial court no explanation for most of

the delay, some of the delay was attributable to Gomez, and we found this factor to weigh

in favor of the State. The third and fourth factors weigh in favor of the State. Gomez

waited twenty-seven months before filing his motion, and when he did so, requested a

dismissal rather than a speedy trial. Finally, the State rebutted the presumption of

prejudice by showing that Gomez acquiesced in the delay. We hold that the weight of the

four factors, when balanced together, militates against finding a violation of Gomez’s right

to a speedy trial. Accordingly, we conclude that Gomez’s right to a speedy trial was not

violated, and the trial court erred in granting the motion to dismiss.

                                    IV.    CONCLUSION

       We reverse the trial court’s judgment and remand the case for further proceedings

consistent with this opinion.



                                                  DORI CONTRERAS GARZA,
                                                  Justice

Do Not Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
2nd day of July, 2015.




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