                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-15-00140-CR

CESAR RANGEL,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the County Court at Law
                              Navarro County, Texas
                             Trial Court No. 32063-CR


                           MEMORANDUM OPINION


       Upon his plea of guilty, the trial court convicted Cesar Rangel of the offense of

evading arrest or detention and assessed punishment at 8 months confinement in a state

jail facility and a $1000 fine. We affirm.

                                     Background Facts

       Cesar Rangel was arrested on May 19, 2008 for the offense of evading arrest or

detention. He posted a surety bond on May 23, 2008, listing his address as 6207 Latta
Street, Dallas, Texas. Rangel was indicted on June 19, 2008, and a Dallas Deputy

Constable attempted to serve Rangel at the 6207 Latta address on July 23, 2008, July 30,

2008, August 18, 2008, August 22, 2008, September 11, 2008, September 12, 2008,

September 18, 2008, and October 29, 2008. On August 11, 2008, Rangel requested a court-

appointed attorney, and his application listed the 6207 Latta address. The trial court

appointed Bill Price to represent Rangel on August 11, 2008.

        Rangel did not appear at a status hearing on April 14, 2010, and a capias was

issued. Rangel was served with the capias on December 16, 2014, in Navarro County,

and he appeared in court on December 29, 2014 with his attorney Bill Price. Rangel

indicated to the trial court that he hired Eddie Hernandez to represent him, and the trial

court did not arraign Rangel at that time. On February 5, 2015, Rangel appeared in court

with his retained counsel, Eric Puente, the trial court arraigned Rangel, and Rangel orally

requested a speedy trial. On March 12, 2015, Rangel filed a motion for dismissal because

he was denied a speedy trial. The trial court held a hearing on the motion and denied the

motion.

                                       Speedy Trial

        In his sole issue on appeal, Rangel argues that the trial court erred in denying his

motion to dismiss for failing to provide a speedy trial. An accused is guaranteed the right

to a speedy trial by the Sixth Amendment to the United States Constitution. Barker v.

Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Zamorano v. State, 84 S.W.3d 643


Rangel v. State                                                                       Page 2
(Tex. Crim. App. 2002). Barker sets out four factors that must be considered in analyzing

a speedy trial claim: 1) length of delay, 2) reason for delay, 3) assertion of the right, and

4) prejudice to the accused. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).

The State has the burden of justifying the length of delay while the accused has the

burden of proving that he asserted the right and showing prejudice. Id. The Barker factors

are not weighed equally; rather, the accused's burden on the last two factors varies

inversely with the State's degree of culpability for the delay. Id. Thus, the longer the

delay and the more bad faith or negligence attributed to the State, the less an accused

must show on the prejudice and diligence in asserting the right. Id. at 280-81.

        In reviewing the trial court's ruling on Rangel’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. See Cantu v. State, 253

S.W.3d at 282. 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. Id.

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

"presumptively prejudicial." Cantu v. State, 253 S.W.3d at 281. 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." Id. No one factor is "either a necessary or


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sufficient condition to the finding of a deprivation of the right of speedy trial." Id.

Instead, the four factors are related and must be considered together along with any other

relevant circumstances. Id.

        Dismissal of the charging instrument with prejudice is mandated only upon a

finding that an accused's Sixth Amendment speedy-trial right was actually violated.

Cantu v. State, 253 S.W.3d at 281. 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." Id. 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. Id. The

constitutional right is that of a speedy trial, not dismissal of the charges. Id.

        The State agrees that the seven year delay is presumptively prejudicial, and thus

triggers a review under the Barker test. We will first address the second factor, reason for

the delay. The record shows that the State attempted to serve Rangel multiple times at

the address he provided. At the attempted service on September 18, 2008, the State was

informed that Rangel had moved to an unknown location. Rangel did not appear at a

status hearing in April 2010. The record shows that the State attempted to serve Rangel

multiple times, but Rangel did not provide accurate contact information. The trial court




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found that the State met its burden of justifying the reason for the delay, and the evidence

supports that finding.

        The defendant has no duty to bring himself to trial, but a defendant does have the

responsibility to assert his right to a speedy trial. Cantu v. State, 253 S.W.3d at 283. The

defendant's assertion of his speedy-trial right (or his failure to assert it) is entitled to

strong evidentiary weight in determining whether the defendant is being deprived of the

right. Id. In Cantu, the Court noted that “The Supreme Court has held that ‘invocation

of the speedy trial provision ... need not await indictment, information, or other formal

charge.’" Cantu v. State, 253 S.W.3d at 283-4. It was incumbent upon Rangel to show that

he had tried to get the case into court so that he could go to trial in a timely manner. See

Cantu v. State, 253 S.W.3d at 284.

        Rangel was arrested on May 19, 2008, posted bond on May 23, 2008, and was

indicted on June 19, 2008. Rangel was served with the capias on December 16, 2014.

Rangel orally requested a speedy trial on February 5, 2015, and on March 12, he requested

a dismissal. Filing for a dismissal instead of a speedy trial will generally weaken a

speedy-trial claim because it shows a desire to have no trial instead of a speedy one.

Cantu v. State, 253 S.W.3d at 283. If a defendant fails to first seek a speedy trial before

seeking dismissal of the charges, he should provide cogent reasons for this failure. Id.

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




Rangel v. State                                                                       Page 5
failure to make such requests supports an inference that the defendant does not really

want a trial, he wants only a dismissal. Id.

        Rangel did not present any evidence at trial that he diligently tried to move the

case forward. See Cantu v. State, 253 S.W.3d at 283. There is nothing in the record to

indicate Rangel had any contact with the district attorney’s office or trial court to check

on the status of his case. Rangel requested and was appointed trial counsel indicating he

was aware of the charges against him. The trial court found that Rangel failed to meet

his burden of proving his assertion of the right to a speedy trial, and the evidence

supports that finding.

        We will now consider whether and to what extent the delay has prejudiced Rangel.

We analyze the prejudice to Rangel in light of the 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. Cantu v. State, 253 S.W.3d at 285.

        Rangel did not testify at the hearing on his motion and did not present any

evidence. There was no evidence that Rangel was subjected to oppressive pretrial

incarceration, and there was no evidence that Rangel had anxiety or concern over the

pending case. The State presented evidence from the arresting officers who testified that

they made a written report after Rangel’s arrest and had a video recording of Rangel

fleeing arrest. Rangel argues on appeal that he is unable to locate his co-defendant;


Rangel v. State                                                                       Page 6
however, he did not present that evidence to the trial court. The trial court found that

Rangel failed to meet his burden of proving he suffered prejudice, and the evidence

supports that finding.

        We find that the trial court did not err in denying Rangel’s motion to dismiss for

failing to provide a speedy trial. We overrule the sole issue.

                                       Conclusion

        We affirm the trial court’s judgment.




                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 3, 2016
Do not publish
[CR 25]




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