Opinion filed February 28, 2013




                                             In The



         Eleventh Court of Appeals
                                          __________

                                    No. 11-11-00044-CR
                                        __________

               CHARLES EDWARD BARRINGER, JR., Appellant

                                                V.

                              STATE OF TEXAS, Appellee

                           On Appeal from the 39th District Court

                                 Throckmorton County, Texas

                                  Trial Court Cause No. 1107



                                          OPINION

       The grand jury indicted Charles Edward Barringer, Jr. for the offense of indecency with a
child. He maintained that the State denied him his right to a speedy trial and he filed a motion to
dismiss the indictment. The trial court denied his motion. After the trial court denied the
motion, Appellant pleaded guilty. The trial court deferred a finding of guilt, placed Appellant on
community supervision for eight years, and assessed a fine of $1,500. We affirm.
                                                    I. Background
        In November 2001, the Throckmorton County sheriff’s office began investigating
allegations that Appellant sexually assaulted a child. Sheriff John Riley contacted Appellant
several times, but Appellant never agreed to go to the sheriff’s office to discuss the allegations.
Sheriff Riley obtained an arrest warrant for Appellant’s arrest in connection with the allegations.
        During the holidays, Appellant went to Michigan to visit family and authorities arrested
him there on December 27, 2001, for unrelated criminal charges. Three days later, authorities in
Lenawnee County, Michigan, notified the Throckmorton County sheriff’s office that they had
Appellant in custody; that they were extraditing him to Bay City, Michigan; and that a hold
could be placed on Appellant with Bay City authorities. Accordingly, Sheriff Riley placed a
hold on Appellant. Appellant attempted to post bond in Bay City, but learned that a warrant had
been issued for his arrest in Texas and that he would be held for extradition.
        On January 10, 2002, because Throckmorton County had not indicted Appellant,
Sheriff Riley sent a letter in which he instructed the Bay City sheriff’s office to release the
Throckmorton County hold on Appellant. Appellant posted bond in Michigan on March 6, 2002.
            On March 7, 2002, the grand jury in Throckmorton County returned an indictment by
which it formally charged Appellant with indecency with a child by contact. The charges were
originally investigated in November 2001. Meanwhile, Appellant pleaded guilty to the Michigan
charges and was placed on probation for three years. 1
        Sometime in 2002, after the grand jury returned the indictment, Appellant called the
district attorney’s office for Throckmorton County and asked whether there were any charges
pending against him. Investigator Luke Griffin informed Appellant that he had been indicted
and that a warrant had been issued for his arrest. The investigator suggested that Appellant
surrender himself to police instead of “getting picked up in the middle of the night and hav[ing]
to stay in jail a day or two before they set bond or something.” Appellant did not turn himself in
to the authorities.
        Eventually, in 2010, someone saw Appellant in Throckmorton County when he returned
to visit his father. They notified the authorities and Sheriff Riley arrested Appellant at his
father’s house.



        1
         We cannot tell from the record what the nature of the Michigan charges were.

                                                             2
       Three months after his arrest, Appellant filed a motion in which he asked the trial court to
set aside the indictment because the eight-year delay violated his right to a speedy trial. At a
hearing on the motion, Appellant testified that he had called the Throckmorton County sheriff’s
office three times between 2002 and 2004 to check on the status of the investigation. He testified
that a woman told him on all three occasions that Sheriff Riley would return his call, but he did
not. Investigator Griffin testified, however, that he informed Appellant of the charges in 2002
and suggested that he surrender. Investigator Griffin admitted that he was testifying from
personal memory and had no record of the phone call.

                                          II. Speedy Trial
       The Sixth Amendment to the Constitution of the United States affords all criminal
defendants the right to a speedy trial. U.S. CONST. amend. VI. This right was made applicable to
state criminal prosecutions by the Due Process Clause of the Fourteenth Amendment. Klopfer v.
North Carolina, 386 U.S. 213, 223 (1967). The speedy trial right attaches when a person is
arrested or charged. United States v. Marion, 404 U.S. 307, 320 (1971). The only possible
remedy for a violation of the right to a speedy trial is to dismiss the prosecution. Strunk v.
United States, 412 U.S. 434, 440 (1973).
       To determine whether an accused has been denied his right to a speedy trial, courts
balance the conduct of both the prosecution and the defendant. Barker v. Wingo, 407 U.S. 514,
530 (1972); Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). We apply the Barker
factors to evaluate (1) the length of the delay, (2) the reason for the delay, (3) whether the
defendant asserted his speedy trial right, and (4) the prejudice caused by the delay. Barker, 407
U.S. at 530. No single factor is necessary or sufficient to establish a violation of the right to a
speedy trial. Id.; Dragoo, 96 S.W.3d at 313.
       “While the State has the burden of justifying the length of delay, the defendant has the
burden of proving the assertion of the right and showing prejudice.” Cantu v. State, 253 S.W.3d
273, 280 (Tex. Crim. App. 2008) (citing Barker, 407 U.S. at 531; Ex parte McKenzie, 491
S.W.2d 122, 123 (Tex. Crim. App. 1973)). “The defendant’s burden of proof on the latter two
factors ‘varies inversely’ with the State’s degree of culpability for the delay.” Id. (quoting
Robinson v. Whitley, 2 F.3d 562, 570 (5th Cir. 1993)). “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.” Id.

                                                  3
       A speedy trial claim is triggered by a passage of time that is unreasonable enough under
the circumstances to be “presumptively prejudicial.” Marion, 404 U.S. at 313. Post-accusation
delay that approaches one year “marks the point at which courts deem the delay unreasonable
enough to trigger the Barker enquiry.” Doggett v. United States, 505 U.S. 647, 652 n.1 (1992).
Once triggered, courts analyze a “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.’” Cantu, 253 S.W.3d at 281 (quoting Barker, 407 U.S. at 530).
No single factor is “either a necessary or sufficient condition to the finding of a deprivation of
the right of speedy trial.” Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002).
Instead, the factors are related, and we consider them “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.” Cantu, 253 S.W.3d at 281. In sum, these
factors have no “talismanic qualities, thus courts must ‘engage in a difficult and sensitive
balancing process.’” Zamorano, 84 S.W.3d at 648.
       We review the trial court’s ruling on a speedy trial issue under a bifurcated standard of
review. Id. As in the context of a motion to suppress, we review legal issues de novo, but defer
to the trial court’s resolution of factual issues. Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim.
App. 2005). We view all of the evidence in the light most favorable to the trial court’s ultimate
ruling. Zamorano, 84 S.W.3d at 648. Under this standard, we defer not only to a trial court’s
resolution of disputed facts, but we also defer to the reasonable inferences drawn from those
facts. Kelly, 163 S.W.3d at 726. “Although the trial court deserves deference even when
credibility is not in issue, deference is especially appropriate when credibility is involved.” Id. at
727. In fact, “the factfinder is empowered, on the basis of credibility and demeanor evaluations,
to completely disregard a witness’s testimony, even if that testimony is uncontroverted.” Id.
(citing State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)).
       The trial court denied Appellant’s motion to dismiss the indictment for a speedy trial
claim, so we presume that the trial judge resolved any factual disputes in favor of the State.
Zamorano, 84 S.W.3d at 648. We will defer to the implied findings of fact that the record
supports. Id.




                                                  4
       A. The Length of the Delay
       Appellant was indicted on March 7, 2002, and arrested more than eight years later. The
trial court held a hearing on Appellant’s motion to set aside the indictment on December 7, 2010.
The State concedes that the eight-year delay is sufficient to trigger further examination of
Appellant’s claim. Furthermore, this period of time exceeds the minimum needed to trigger
review of a speedy trial claim and, thus, weighs heavily against the State. See Zamorano, 84
S.W.3d at 649 (“Because the length of the delay stretched well beyond the bare minimum needed
to trigger judicial examination of the [speedy trial] claim, this factor—in and of itself—weighs
heavily against the State.”).
       B. The Reason for the Delay
       When assigning weight to the reasons for delay that is given by the government, different
reasons deserve different weights. Barker, 407 U.S. at 531. “Between diligent prosecution and
bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground.”
Doggett, 505 U.S. at 656–57. “[T]he burden of excusing the delay rests with the State and . . . in
light of a silent record or one containing reasons insufficient to excuse the delay, it must be
presumed that no valid reason for delay existed.” Turner v. State, 545 S.W.2d 133, 137–38 (Tex.
Crim. App. 1976). An intentional or “deliberate attempt to delay the trial” weighs heavily
against the government, and a valid reason for the delay does not weigh against the government
at all because it justifies the delay. State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999)
(quoting Barker, 407 U.S. at 531). A “more neutral reason such as negligence or overcrowded
courts should be weighted less heavily, but nevertheless should 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.
       Appellant argued to the trial court that the State “just kept their ear to the ground, and if
anything, [Appellant] fell through the cracks and this was the result of negligence.” The State
concedes that it was negligent by failing to take any steps to notify Appellant of the pending
charges or bring him to trial and that this factor weighs against it, although “not as heavily as
would action by the State to deliberately delay the trial.” Appellant neither alleged nor offered
any evidence that the State’s conduct rose above negligence. This factor weighs against the
State, although not heavily. See Dragoo, 96 S.W.3d at 314 (explaining that any delay weighs



                                                 5
against the State if not justified but that, to weigh heavily, there must be evidence of “a
deliberate attempt on the part of the State to prejudice the defense”).
       C. The Defendant’s Assertion of His Right
       A defendant’s assertion of his speedy trial right is entitled to strong evidentiary weight in
determining whether the defendant was deprived of that right. Barker, 407 U.S. at 531. “A
defendant still is responsible for asserting or demanding his right to a speedy trial.” Munoz, 991
S.W.2d at 825. Although it is not a waiver, failing to assert the right indicates a lack of desire for
a speedy trial. Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992). It also indicates a
lack of prejudice. Dragoo, 96 S.W.3d at 314. This is because, as the delay becomes longer, a
defendant who wishes to have a speedy trial is more likely to take some action to obtain it.
Dragoo, 96 S.W.3d at 314. “Thus[,] inaction weighs more heavily against a violation the longer
the delay becomes.” Dragoo, 96 S.W.3d at 314 (quoting George E. Dix & Robert O. Dawson,
TEXAS PRACTICE: CRIMINAL PRACTICE           AND   PROCEDURE § 23.40 (2d ed. 2001)).          When a
defendant is unaware of the indictment or warrant, however, we consider whether and how the
defendant asserted his speedy trial right once he became aware. See Doggett, 505 U.S. at 653–54
(explaining that a defendant cannot be taxed for failing to invoke his speedy trial right when
unaware of the indictment); Phillips v. State, 650 S.W.2d 396 (Tex. Crim. App. 1983).
       A request that the court dismiss the charges for a speedy trial violation, rather than a
request for a prompt trial setting, attenuates the strength of a speedy trial claim because it
indicates a desire to avoid trial rather than to obtain a speedy trial. Phillips, 650 S.W.2d at 401;
Orosco v. State, 827 S.W.2d 575, 577 (Tex. App.—Fort Worth 1992, pet. ref’d).                   “The
constitutional right is that of a speedy trial, not dismissal of the charges.” Cantu, 253 S.W.3d at
281. In some cases, a request to dismiss is warranted if defense counsel legitimately felt that the
long delay caused enough prejudice that requesting a prompt trial is no longer in the defendant’s
best interest. Compare Zamorano, 84 S.W.3d at 651 n.40 (motion to dismiss may alert the court
and the State both of the delay and a defendant’s lack of acquiescence instead of an attempt to
escape trial completely), with State v. Guerrero, 110 S.W.3d 155, 161 (Tex. App.—San Antonio
2003, no pet.) (holding that, because evidence was lost, request for dismissal of charges was
appropriate and that a speedy trial was no longer in defendant’s best interest).
       Appellant first asserted his speedy trial right when he moved to set aside the indictment
more than eight years after he had been indicted. Appellant argues that he asserted his right

                                                  6
shortly after being finally arrested and finally becoming aware of the charges.” The State
responds that Appellant was aware of the charges against him in 2002 and that his failure to
assert his right to a speedy trial until 2010 strongly indicates that “Appellant did not really want a
speedy trial.”   Appellant’s awareness of the pending charges was disputed at the hearing.
Appellant testified that he had no knowledge of formal charges against him until his arrest in
August 2010. Appellant alleged that he called the Throckmorton County sheriff’s office on three
occasions between 2002 and 2004 to inquire about the status of the investigation against him.
He testified that he specifically remembered calling in 2004 because he was about to get married
and have a baby. According to Appellant, no one ever returned his calls. Investigator Griffin
testified, however, that he spoke to Appellant in 2002 and informed Appellant that he had been
indicted. Further, Investigator Griffin informed Appellant that there was a warrant out for his
arrest and that “it would be better if he turned [himself] in instead of maybe going around and
getting picked up in the middle of the night and hav[ing] to stay in jail a day or two before they
set bond or something.” When asked whether Appellant was aware of the pending charges, the
investigator responded that “there’s no question he was aware of it.”
       As we stated above, we view all of the evidence in the light most favorable to the trial
court’s ultimate ruling and defer to the trial court’s resolution of disputed facts and to the
reasonable inferences drawn from those facts. Kelly, 163 S.W.3d at 726; Zamorano, 84 S.W.3d
at 648. Based on the evidence offered at trial, the determination of whether Appellant was aware
of the indictment prior to his arrest in 2010 turns on whether the trial court believed Investigator
Griffin’s testimony or Appellant’s testimony.
       Both in his brief and at oral argument, Appellant challenged the credibility of Investigator
Griffin. However, that is a call that we are not allowed to make; that is a determination for the
trier of fact. Viewing the evidence in the light most favorable to the trial court’s ultimate ruling
and deferring to the trial court’s credibility determination, we conclude that the facts before us
support the trial court’s implied finding that Appellant was aware that he had been indicted in
Texas and quietly acquiesced in the eight-year period of inaction. We agree with the State that,
because the trial court found that Appellant was aware of the charges he was facing in 2002 yet
failed to assert his right until 2010, “this indicates strongly that the Appellant did not really want
a speedy trial.” In addition, the record reveals that Appellant’s only action to assert his right was
to file a motion seeking dismissal of the case. Appellant never sought a speedy trial, and his


                                                  7
actions demonstrated only the desire to avoid a trial and obtain a dismissal. This weighs heavily
against finding a speedy trial violation.
       D. Prejudice from the Delay
       We assess any possible prejudice in light of the interests that the guarantee to a speedy
trial 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. Barker, 407 U.S. at 532. Of the factors, “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.   Affirmative proof of particularized prejudice is not essential in every case because
“excessive delay presumptively compromises the reliability of a trial in ways that neither party
can prove or, for that matter, identify.” Doggett, 505 U.S. at 655. “On the other hand, this
‘presumption of prejudice’ is ‘extenuated . . . by the defendant’s acquiescence’ in the delay.”
Dragoo, 96 S.W.3d at 315 (quoting Doggett, 505 U.S. at 658).
        Appellant argues that, “when the length of delay is coupled with the police’s complete
lack of effort to arrest or warn [Appellant] of the charges in any way, the only conclusion can be
that actual prejudice is demonstrated.” In response, the State argues that the “presumption of
prejudice is extenuated by the Appellant’s acquiescence in the delay.” Because the trial court
found that Appellant was aware of the pending charges, we agree with the State that the
presumption of prejudice has been “extenuated” by Appellant’s failure to assert his right to a
speedy trial. See Doggett, 505 U.S. at 658.
       As for particularized prejudice, Appellant was not incarcerated during the delay and has
never claimed that his defense was specifically impaired. We recognize that Appellant suffered
prejudice by having to live under a cloud of suspicion and anxiety for more than eight years.
Although Appellant testified that he “handled” his case in Michigan differently than he would
have otherwise, he neither explained how that prejudiced him nor demonstrated how he was
prejudiced in his defense.     Consequently, this factor weighs against finding a speedy trial
violation.
       E. Balancing
       We have weighed each factor and must now balance their relative weights in light of the
conduct of the parties.     Cantu, 253 S.W.3d at 281.        The general rule is that, when the
government’s negligence causes an extraordinary delay, a defendant is entitled to dismissal of


                                                 8
the charges unless the presumption of prejudice is either persuasively rebutted or “extenuated”
by the defendant’s actions. See Doggett, 505 U.S. at 658. While we presume prejudice from
extraordinary delay and tax any negligence against the government, we also consider whether a
defendant’s failure to assert his right contributed to the delay and resulting prejudice.
       It is clear that the length of delay between indictment and trial was extraordinary; the
delay is more than eight times longer than the one year that is generally sufficient to trigger a
speedy trial claim. See Doggett, 505 U.S. at 652 n.1. As for the reasons for the delay, the State
could not explain why it withdrew the hold on Appellant, although the sheriff agreed that it was
likely due to a lack of formal charges. The sheriff admitted that his office acted negligently
when it took no steps to notify Appellant of the pending charges while he was outside the state.
       There are two counterbalancing considerations, however, that outweigh these
deficiencies. First, Appellant’s prejudice was minimal. Although we recognize that Appellant
had to live under a cloud of suspicion for more than eight years, we also recognize that
Appellant’s own actions contributed to the delay and resulting prejudice. While Appellant
claimed “substantial damage to the preparation of his defense,” there is no claim that witnesses
died, became unavailable, or had a lapse in memory or that evidence became unavailable or
unusable as a result of the delay. Our review of the record did not reveal any other evidence of
prejudice.
       The second consideration, which is even more important than the absence of serious
prejudice, is that Appellant did not want a speedy trial. See Barker, 407 U.S. at 534. We defer
to the trial court’s determination that Appellant was aware of the indictment in 2002, and there is
no evidence that Appellant sought an immediate trial once he learned of the formal charges.
While he moved to dismiss the indictment on speedy trial grounds, Appellant made no
alternative request for an immediate trial. Instead, the record strongly suggests that Appellant
hoped to take advantage of the delay, in which he had acquiesced, by obtaining a dismissal of the
charges and that he did not want a trial. See id. at 535. Barring extraordinary circumstances that
are not present here, “we would be reluctant indeed to rule that a defendant was denied this
constitutional right on a record that strongly indicates, as does this one, that the defendant did not
want a speedy trial.” Id. at 536. Accordingly, we hold that Appellant was not deprived of his
right to a speedy trial, and his sole issue on appeal is overruled.



                                                  9
                                          III. Holding
       The judgment of the trial court is affirmed.




                                                         MIKE WILLSON
                                                         JUSTICE


February 28, 2013
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




                                                10
