                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00088-CR



           DAVID SCOTT REITZ, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 331st District Court
                Travis County, Texas
         Trial Court No. D-1-DC-16-206732




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                          MEMORANDUM OPINION
         A Travis County jury found David Scott Reitz guilty of driving while intoxicated (DWI),

third or more, a third-degree felony. 1 See TEX. PENAL CODE ANN. § 49.09(b) (West Supp. 2018).

In accordance with the jury’s assessment, the trial court sentenced Reitz to eight years’

imprisonment. In his sole point of error on appeal, Reitz argues that the trial court erred in denying

his motion to dismiss the indictment based on an alleged violation of his right to a speedy trial.

         We find that the trial court did not err in declining to dismiss the indictment because Reitz’

right to a speedy trial was not violated. Accordingly, we affirm the trial court’s judgment.

I.       The Trial Court Did Not Err in Declining to Dismiss the Indictment

         A.       Standard of Review

         “The Sixth Amendment guarantees a defendant in a criminal prosecution the right to a

speedy trial.” Hopper v. State, 520 S.W.3d 915, 923 (Tex. Crim. App. 2017) (citing U.S. CONST.

amend. VI); see Barker v. Wingo, 407 U.S. 514, 515 (1972). The right to a speedy trial cannot be

quantified in days or months. Barker, 407 U.S. at 523; see State v. Davis, 549 S.W.3d 688, 697

(Tex. App.—Austin 2017, no pet.). Thus, Texas courts “analyze federal constitutional speedy-

trial claims ‘on an ad hoc basis’ by weighing and then balancing the four Barker v. Wingo factors.”

Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).

         In executing the balancing test, “the conduct of the prosecution and the defendant are

weighed based on four factors: (1) the length of the delay, (2) the reason for the delay, (3) the


1
 Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme Court
pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We follow the
precedent of the Third Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

                                                          2
defendant’s assertion of his right, and (4) any prejudice inflicted by the delay.” Davis, 549 S.W.3d

at 697 (citing Hopper, 520 S.W.3d at 923–24). “Under the Barker test, the State bears the burden

of justifying the length of the delay, while appellant must meet his burden of proving his assertion

of the right to speedy trial and showing prejudice.” Id. No one factor is determinative, and all

factors must be considered together along with relevant circumstances on a case-by-case basis.

Cantu, 253 S.W.3d at 281.

          When reviewing a trial court’s decision on a speedy-trial claim, an appellate court applies

a bifurcated standard of review. Stock v. State, 214 S.W.3d 761, 764 (Tex. App.—Austin 2007,

no pet.) (citing Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002); State v. Munoz,

991 S.W.2d 818, 821 (Tex. Crim. App. 1999)). “Specifically, we review the trial court’s decision

under ‘an abuse of discretion standard for the factual components, and a de novo standard for the

legal components.’” Id. (quoting Zamorano, 84 S.W.3d at 648).

          B.     Analysis

                 1.      The Length of Delay

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

presumptively prejudicial. Davis, 549 S.W.3d at 697. “[T]he delay that can be tolerated for an

ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Id.

(quoting Zamorano, 84 S.W.3d at 649). “Generally, delays ‘approaching one year’ will trigger a

speedy-trial inquiry.” Id. (quoting Balderas v. State, 517 S.W.3d 756, 768 (Tex. Crim. App.

2016)).



                                                   3
       In this case, Reitz was arrested for DWI on October 25, 2016, the indictment was filed on

December 8, 2016, but trial was not conducted until April 30, 2018. We find this delay of

approximately eighteen months presumptively prejudicial in light of the nature of the offense

involved. See id. (citing Doggett v. United States, 505 U.S. 647, 651–52 n.1 (1992) (noting courts

generally find delays approaching one year presumptively prejudicial)). Accordingly, as the State

concedes, Reitz “has demonstrated that a full analysis of the Barker v. Wingo factors is

appropriate.”

                2.    Reason for the Delay

       While the “burden of excusing the delay rests with the State,” Phillips v. State, 650 S.W.2d

396, 400 (Tex. Crim. App. [Panel Op.] 1983), “different weights should be assigned to different

reasons,” Barker, 407 U.S. at 531, when analyzing this prong of the Barker test. Deliberate

attempts to delay trial in order to hamper a defense are weighed heavily against the State. Davis,

549 S.W.3d at 699 (citing Balderas, 517 S.W.3d at 768); see Barker, 407 U.S. at 531. “[M]ore

neutral reasons, such as negligence or overcrowded courts are weighed less heavily.” Davis, 549

S.W.3d at 699. “Valid reasons will justify appropriate delays.” Id. Delay which is attributable in

whole or in part to the defendant is heavily weighed against the defendant and “may even constitute

a waiver of a speedy[-]trial claim.” State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999)

(citing Barker, 407 U.S. at 528–30; Dickey v. Florida, 398 U.S. 30, 48 (1970) (Brennen, J.,

concurring)). “Between diligent prosecution and bad-faith delay is the middle ground of official

negligence in bringing an accused to trial.” Davis, 549 S.W.3d at 699 (citing Doggett, 505 U.S. at

656–57). “Such negligence is weighed more lightly than a deliberate intent to harm the accused’s

                                                4
defense.” Id. (citing Doggett, 505 U.S. at 657). “Courts’ tolerance of such negligence ‘varies

inversely with its protractedness and its consequent threat to the fairness of the accused’s trial.’”

Id. (quoting Doggett, 505 U.S. at 657 (citation omitted)).

                         a.       Valid Reasons

        In order to examine the reasons for the delay, we briefly review the timeline of events

taking place in this case. Counsel was appointed to represent Reitz on October 28, 2016, just a

few days after his arrest. The appellate record establishes a short delay between the date of his

arrest and the return of the indictment, which was filed on December 8, 2016. The record

demonstrates that the delay occurred because the State was awaiting the return of an Austin Police

Department Blood and Alcohol Report, which was not authored until December 5, 2016. We find

this short delay reasonable.

        In January 2017, Reitz’ counsel was informed that the State intended to enhance

punishment by including a habitual-offender allegation. 2 Because counsel was not qualified to

represent defendants facing more than twenty years’ imprisonment under the Travis County Fair

Defense Plan, counsel was granted his motion to withdraw from the case. Consequently, another

attorney was appointed to represent Reitz on February 9, 2017. Reitz’ second attorney withdrew

due to a conflict of interest, and his third attorney was appointed on February 16, 2017. A motion

for discovery was promptly filed. At a February 28 hearing, Reitz’ third attorney indicated that

the State had recently made a plea offer.



2
 The record established that Reitz was previously convicted of two felony offenses that met the requirements of
Section 12.42(d) of the Texas Penal Code.
                                                      5
        The record contains a four-month absence of activity until Reitz’ counsel filed a motion to

reduce bond on June 5, 2017. During a July 17, 2017, hearing, Reitz rejected the State’s plea

offers of either two years’ imprisonment on the current charge or community supervision on a

reduced charge. After Reitz rejected the offers, the State indicated that it would “reindict [Reitz]

for habitual status before . . . put[ting] it on the trial docket.”

        Reitz characterizes the delay between January and July as a deliberate attempt by the State

to delay his trial. Specifically, he argues that the State caused his first attorney to withdraw by

indicating that it would add a habitual-offender allegation, did not prepare to add the allegation

until “sometime between July and September 2017,” and ultimately decided not to do so. We do

not find that the trial court abused its discretion in declining to attribute this portion of the delay

to the State. The record reflects that a new assistant district attorney was appointed to represent

the State after the July 2017 hearing. When asked if it intended to enhance Reitz’ punishment, the

State said,

        I didn’t feel it was really fair to . . . try you on 25 to 99. So we’re going to be two
        to ten, and that’s all the punishment range that I feel as though we need. I thought
        it would be disingenuous to offer you back time on a misdemeanor and then try and
        hang you for 25.

Thus, while the State ultimately decided not to charge Reitz as a habitual offender, the record

established that this was the result of prosecutorial discretion that benefitted Reitz.

        Here, the January to July 2017 delay is easily explained by valid reasons. Reitz’ first

counsel explained in writing that he had not yet received all the evidence in the case before he

withdrew. After appointment of Reitz’ third counsel, the record demonstrates that Reitz and the

State were engaged in earnest plea negotiations from February 28 until July 17. We find that
                                                     6
ongoing discovery and plea negotiations constituted valid reasons for delay that cannot be weighed

against the State. 3 See Barker, 407 U.S. at 531; Munoz, 991 S.W.2d at 824.

                     b.       Neutral Reasons

            Next, at the July 17, 2017, hearing, the court coordinator informed the parties that the next

available jury trial setting would be in October. The statement by the court coordinator indicated

that a portion of the delay was the result of overcrowded courts, which constituted a neutral reason

that “must be counted against the State, although not heavily.” Shaw v. State, 117 S.W.3d 883,

890 (Tex. Crim. App. 2003). However, a further examination of the record shows that a portion

of the delay was also attributable to Reitz.

                     c.       Delay Attributable in Whole or in Part to Reitz

            The July 17 hearing concluded with Reitz’ request to reset the case and “think it over.”

Reitz filed a motion to dismiss his third appointed counsel on July 17, September 22, and

October 12. Citing Reitz’ “openly hostile” nature and his “unwilling[ness] to accept his attorney’s

advice,” Reitz’ third counsel filed his own motion to withdraw from the case on October 16, 2017.

Eventually, Reitz requested that he be allowed to proceed pro se. The trial court granted both

requests, allowed counsel to withdraw, and allowed Reitz to appear pro se.                              However, on

October 20, 2017, the trial court appointed a fourth attorney as standby counsel only. 4 We find




3
 At a September 6, 2017, hearing, after Reitz pled not guilty to the offense, the State informed the trial court that the
penitentiary packets it had ordered had not yet been received. The record does not indicate when the State made its
request for the information.
4
    On October 26, 2017, Reitz executed a written waiver of his right to counsel.

                                                            7
that the record demonstrated that the delay from July through October 20 was the result of Reitz’

relationship with his counsel.

         Trial was set for December 4, 2017, approximately six weeks after standby counsel was

appointed. However, during a December 1, 2017, pretrial hearing, Reitz requested a ten-day

continuance because he had failed to properly subpoena his rebuttal witnesses. The trial court

explained that it could not grant a mere ten-day continuance because the next earliest available

date for a jury trial was in the Spring of 2018. On December 4, 2017, Reitz again requested and

was granted a continuance, and a new trial date was set for April 24, 2018. 5 Reitz announced

ready during an April 24 hearing, and voir dire began on April 30, 2018. We find the delay

between December 1, 2017, and April 24, 2018, wholly attributable to Reitz. 6 See Celestine v.

State, 356 S.W.3d 502, 507–08 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“[A]greed resets

are inconsistent with assertion of a speedy trial right, and the delay covered by such resets should

not be included in speedy trial computations.”) (internal quotation marks omitted)).

         In sum, the appellate record demonstrated that the reason for the delay was not the result

of any deliberate attempt by the State to delay the trial or hamper Reitz’ defense. While valid and

neutral reasons played a role in the delay, a portion of the July to October 2017 delay was

attributable to Reitz, and the remaining portion of the delay was wholly attributable to him.

Because nine months of delay was attributable to Reitz in whole or part, we find that this factor


5
 On January 3, 2018, Reitz filed a motion stating he was unable to prepare for the newly set April 24 court date due
to his incarceration and lack of resources in jail. During a February 23 hearing, Reitz also said, “I’m going to also
need some time to review the video and . . . take notes.”
6
Reitz also suffered from his lack of legal education. January 19 and February 23, 2018, hearings established that
Reitz was experiencing difficulty locating and securing rebuttal witnesses.
                                                         8
weighs heavily against him, considering that he was brought to trial eighteen months after his

arrest.

                  3.       Assertion of Right

          Next, “[t]he defendant’s assertion of his right to a speedy trial—the third Barker factor—

is entitled to strong evidentiary weight in our determination of whether the defendant has been

deprived of that right.” Davis, 549 S.W.3d at 704 (citing Balderas, 517 S.W.3d at 771; Gonzales

v. State, 435 S.W.3d 801, 810–11 (Tex. Crim. App. 2014)). “A speedy-trial demand should be

unambiguous.” Id. (citing Henson v. State, 407 S.W.3d 764, 769 (Tex. Crim. App. 2013)). Reitz

had the responsibility to timely assert his right to a speedy trial. See Cantu, 253 S.W.3d at 282

(citing Barker, 407 U.S. at 527–28).

          Typically, “[r]epeated requests for a speedy trial weigh heavily in favor of the defendant.”

Id. at 283 (citing Barker, 407 U.S. at 534–36). Between February 21 and September 6, 2017, Reitz

filed four pro se motions for speedy trial, 7 and the reporter’s record initially shows that Reitz

wanted a speedy trial. However, Reitz was represented by counsel when his first four motions

were filed. Since “a defendant has no right to hybrid representation,” “a trial court is free to

disregard any pro se motions presented by a defendant who is represented by counsel.” Robinson

v. State, 240 S.W.3d 919, 921–22 (Tex. Crim. App. 2007); see Robinson v. State, No. 03-14-




7
 On February 21, 2017, Reitz filed his first pro se motion for speedy trial, which argued that he had been denied
reasonable bond, argued that he had already been confined for 110 days, and prayed for either a speedy trial or
dismissal of the indictment. On May 2, 2017, Reitz filed a second pro se motion for speedy trial. Although that
motion sought a speedy trial or dismissal of the indictment, Reitz emphasized his desire for a dismissal. Reitz filed
third and fourth pro se motions for speedy trial on July 6 and September 6, 2017, respectively, each time asking for a
speedy trial only.
                                                          9
00407-CR, 2015 WL 4515128, at *5 (Tex. App.—Austin July 22, 2015, pet. ref’d) (mem. op., not

designated for publication). 8

         Moreover, a motion for speedy trial “must be ‘presented’ to the trial court to preserve a

complaint for appellate review, and presentment means more than mere filing.” Guevara v. State,

985 S.W.2d 590, 592 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); see Zamorano, 84

S.W.3d at 652 (quoting Cook v. State, 741 S.W.2d 928, 940 (Tex. Crim. App. 1987) (“assertion-

of-right factor weighs against appellant where ‘there is no evidence beyond the two motions for

speedy trial filed with the district clerk that appellant asserted his right to a speedy trial by

requesting hearings to present evidence on the matter’”), vacated and remanded on other grounds,

488 U.S. 807 (1988)). Although he had the opportunity during several hearings, Reitz did not

present his first four pro se motions for the trial court’s review. 9

         After the trial court granted Reitz’ request for self-representation, on January 3, 2018, Reitz

filed his fifth pro se motion for speedy trial. That was the first speedy-trial motion that the trial

court was not free to disregard. By that time, Reitz had already requested a continuance of the

trial date. The motion was not presented until the April 17, 2018, pretrial hearing. The delay in

presentment is relevant in determining this Barker factor. See Barker, 407 U.S. at 529 (we consider



8
 Although this unpublished case has no precedential value, we may take guidance from it “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
9
 At a September 8, 2017, hearing, although he did not specifically bring the court’s attention to the motion for speedy
trial, the following discussion occurred:
           THE DEFENDANT: Why are we stalling? Can I get to jury trial?
           THE COURT: Yeah.
           THE DEFENDANT: Thank you, Your Honor.
           THE COURT: We’ll give you a speedy trial.
           THE DEFENDANT: Thank you, sir.
                                                         10
the force of the defendant’s objections to the delay). 10 At the hearing on his motion for speedy

trial, Reitz informed the trial court that he wished for a dismissal of the indictment. Requesting

dismissal of the charges indicates a desire to have no trial instead of a speedy one. Cantu, 253

S.W.3d at 283.

        Reitz’s delay in presenting his motion for speedy trial, coupled with his request for a

dismissal at the hearing on his motion, leads us to conclude that this Barker factor weighs against

him.

                 4.     Prejudice

        “A defendant has the burden to make some showing of prejudice, but a showing of actual

prejudice is not required.” Balderas v. State, 517 S.W.3d 756, 772 (Tex. Crim. App. 2016).

Prejudice occasioned by the delay in proceeding to trial is assessed in light of the three interests

which the right to a speedy trial was designed to protect: (1) freedom from oppressive pretrial

incarceration; (2) mitigation of the anxiety and concern on the part of the accused that accompanies

a public accusation; and (3) avoidance of impairment to the defense of the charges. Barker, 407

U.S. at 532; see Davis, 549 S.W.3d at 697. The third factor is the most important because the

accused’s inability to prepare adequately skews the fairness of the entire system. Barker, 407 U.S.

at 532; see Balderas, 517 S.W.3d at 768.

        Here, Reitz makes no argument with respect to the third factor. Instead, he argues, “It is

clear that Appellant endured pretrial detention and the anxiety and concern that are inherent with



10
 See Speights v. State, No. 06-12-00137-CR, 2014 WL 1246074, at *5 (Tex. App.—Texarkana Mar. 26, 2014) (mem.
op., not designated for publication), rev’d on other grounds by 464 S.W.3d 719 (Tex. Crim. App. 2015).
                                                    11
incarceration.” Reitz was incarcerated during the pendency of the case. He showed that he had

earned $35,336.65 as a heating, ventilation, and air-conditioning service technician in 2016 and

argued that his lengthy pretrial incarceration had taken a financial toll on him. In addition to losing

his job, Reitz stated he had lost his residence, vehicle, and good credit. He explained that he

suffered anxiety as a result of his incarceration and inability to care for his elderly parents who

were in poor health. Because the State did not present evidence to rebut Reitz’ prejudice argument,

we find that the fourth Barker factor weighs in Reitz’ favor. See Stock, 214 S.W.3d at 767.

       Yet, we cannot say that his pretrial incarceration prejudiced him to such a degree to warrant

dismissal of the case because, as explained above, he “acquiesced to” some of the delay and

“received full credit for his time spent in jail.” See Porter v. State, 540 S.W.3d 178, 184 (Tex.

App.—Houston [1st Dist.] pet. ref’d) (quoting Starks v. State, 266 S.W.3d 605, 612–13 (Tex.

App.—El Paso 2008, no pet.) (“Appellant ‘received full credit for the time he had spent in jail, so

his twenty-five-month pretrial incarceration was not, in this case, oppressive.’”)); see also Davis,

549 S.W.3d at 708; U.S. v. Casas, 425 F.3d 23, 34–35 (1st Cir. 2005) (receipt of full-time credit

mitigates a claim of prejudice from pretrial incarceration); Gray v. King, 724 F.2d 1199, 1204 (5th

Cir. 1984) (same).

               5.      Balancing

       “Having addressed the four Barker factors, we must now balance them.” Dragoo v. State,

96 S.W.3d 308, 316 (Tex. Crim. App. 2003). The eighteen-month delay between Reitz’ arrest and

trial weighs in favor of finding that Reitz’ speedy-trial right was violated. However, Reitz’

contribution to the delay, his tardy presentment of the speedy-trial motion, and his request for

                                                  12
dismissal weigh against his Sixth Amendment claim. Additionally, Reitz has not shown that any

of the prejudice he suffered flowed from an impairment to his defense, and he received credit on

his sentence for time served. Accordingly, we hold that the trial court did not err in failing to

dismiss the indictment because there was no violation of Reitz’ right to a speedy trial. We overrule

Reitz’ sole issue.

II.    Conclusion

       We affirm the trial court’s judgment.




                                               Ralph K. Burgess
                                               Justice

Date Submitted:        February 14, 2019
Date Decided:          February 28, 2019

Do Not Publish




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