                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-16-00062-CR

THE STATE OF TEXAS,
                                                               Appellant
v.

JOSE ESTRADA,
                                                               Appellee



                           From the County Court at Law
                              Walker County, Texas
                              Trial Court No. 15-0686


                            MEMORANDUM OPINION


       Jose Estrada was charged by complaint and information with the offense of

driving while intoxicated, a second offense. See TEX. PENAL CODE ANN. § 49.04 (West

2011). He filed a motion to dismiss for lack of a speedy trial which, after a hearing, the

trial court granted. The State has appealed the trial court’s order of dismissal. Because

the trial court erred in its weighing of the speedy trial factors, we reverse the trial court’s

order and remand this case for further proceedings.
SPEEDY TRIAL

        In one issue, the State contends the trial court erred in dismissing the State’s case

against Estrada because the State did not violate Estrada’s right to a speedy trial.

        The Sixth Amendment to the United States Constitution guarantees an accused the

right to a speedy trial. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008) (citing

Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002)). In addressing a speedy-

trial claim, the Supreme Court has laid out four factors that a court should consider: (1)

the length of 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 resulting from delay. See Gonzales v.

State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014); Dragoo v. State, 96 S.W.3d 308, 313 (Tex.

Crim. App. 2003); see also Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101

(1972). The four factors are related and must be considered together along with any other

relevant circumstances. Cantu, 253 S.W.3d at 281. 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. at 280.

Standard of Review

        When reviewing an application of the Barker balancing test, a reviewing court uses

the same burden of proof allocation as in the context of a motion to suppress. Gonzales v.

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


State v. Estrada                                                                         Page 2
Crim. App. 2005). That is, we give almost total deference to historical findings of fact of

the trial court that the record supports and draw reasonable inferences from those facts

necessary to support the trial court's findings, but we review de novo: (1) whether there

was sufficient presumptive prejudice to proceed to a full Barker analysis (the first Barker

factor); and (2) the weighing of the Barker factors, both of which are legal questions.

Gonzales, 435 S.W.3d at 808-809. In addition, as a reviewing court, we do not consider

record evidence that was not before the trial court when it made its ruling. Id. at 809;

Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003); see also Pierson v. State, 426

S.W.3d 763, 771 (Tex. Crim. App. 2014).

Hearing

        Estrada’s Motion to Dismiss for Lack of Speedy Trial was filed on February 4, 2016.

The hearing on the motion was held on February 9, 2016. At the hearing, Estrada testified

that he was arrested for driving while intoxicated on August 30, 2014. He also presented

documentation1 from which it appears he was arrested at the scene and later was released

after posting bail. Further documentation presented included a lab report with Estrada’s

blood-alcohol analysis which was issued on October 3, 2014 by the Texas Department of

Public Safety Crime Lab and a report which indicated that the offense report, criminal

history, booking records, and the lab report were provided to the State by the DPS on




1 Each document presented to the court was attached to Estrada’s Motion to Dismiss for Lack of Speedy
Trial.

State v. Estrada                                                                              Page 3
October 6, 2014.

        Estrada presented two representation letters by his attorney, one dated October 1,

2014 and one dated March 18, 2015 stating the same thing: that Estrada was represented

by a law firm and was requesting certain information from the State. No request for a

speedy trial was made in either letter. Documentation was also presented that indicated

Estrada was to appear in court, and his attorney stated that he did appear in court, on

October 23, 2014 before a case had been filed. The last document presented was evidence

that the complaint and information charging Estrada with driving while intoxicated was

filed on September 10, 2015.

        Estrada testified at the hearing that a person named Santos Colunga was with him

four or five hours before he was arrested. He did not clarify whether Colunga was with

him for the four to five hours immediately preceding the arrest or had simply met up

with him for a short time four to five hours prior to the arrest. Estrada also testified that

six months before the hearing, which would have been about September of 2015, Colunga

left for Mexico and that Colunga had died within two weeks prior to the date of the

hearing. No explanation of the cause of or circumstances surrounding the death were

given. Estrada stated that Colunga could have been a witness in his defense, but Estrada

did not testify as to what Colunga’s testimony would have been.

Length of the Delay—First Barker Factor

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


State v. Estrada                                                                       Page 4
formally accused until the time of trial or a defendant’s demand for a speedy trial. Gonzales,

435 S.W.3d at 809; Dragoo, 96 S.W.3d at 313; Zamorano v. State, 84 S.W.3d 643, 648 (Tex.

Crim. App. 2002). This factor is, to some extent, a triggering mechanism, so that there is no

necessity for inquiry into the other factors that go into the balance until passage of a period

of time that is, on its face, unreasonable under the circumstances. Barker v. Wingo, 407 U.S.

514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); Dragoo, 96 S.W.3d at 313. In general, a delay

approaching one year is unreasonable enough to trigger the full Barker analysis. Dragoo, 96

S.W.3d at 313.

        Estrada was arrested on August 30, 2014. The charge against him was not filed until

a little over 12 months later. Then another five months after the complaint and information

were filed passed before Estrada filed his motion to dismiss the complaint and information

for lack of a speedy trial. This delay is long enough to trigger the full Barker analysis; and

this factor is weighed against the State.

Reason for the Delay—Second Barker Factor

        When a court assesses the second Barker factor, "different weights should be assigned

to different reasons" for the delay. Barker v. Wingo, 407 U.S. at 531; Dragoo v. State, 96 S.W.3d

308, 314 (Tex. Crim. App. 2003). Some reasons are valid and "serve to justify appropriate

delay." Id. However, 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; and the factor is weighed against the State, but not heavily.



State v. Estrada                                                                          Page 5
Dragoo v. State, 96 S.W.3d at 314.

        Here, the State offered the trial court no reason to justify any of the almost 18

month delay between Estrada's arrest and Estrada’s motion to dismiss for the lack of a

speedy trial. Consequently, this factor does weigh against the State but not heavily. See

id.

Assertion of the Right—Third Barker Factor

        A defendant has the responsibility to assert his right to a speedy trial. Cantu v.

State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008). The lack of a timely demand for a

speedy trial strongly indicates that a defendant did not really want a speedy trial and that

he was not prejudiced by the lack of one. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim.

App. 2003). 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, 253 S.W.3d at 283.

        Although a person cannot file a motion for a speedy trial until formal charges are

made, the right to a speedy trial can be asserted in other ways. Cantu v. State, 253 S.W.3d

273, 283 (Tex. Crim. App. 2008). An accused in Estrada's place—arrested but not formally

charged—has a choice: He can wait until he is charged, then file a motion for a speedy

trial, and, if this request is not honored, he can then file a motion to dismiss because he

has diligently sought what he is entitled to—a speedy trial. Id. at 284. Or he can wait

until he is charged and simply file a motion to dismiss if he can show that he diligently


State v. Estrada                                                                      Page 6
tried to move the case into court before formal charges were filed. Id. Because Estrada

never asked for a speedy trial—he asked only for a dismissal—it was incumbent upon

him to show that he had tried to get the case into court so that he could go to trial in a

timely manner. Id.

        Here, Estrada never requested a speedy trial; he sought only an outright dismissal

and tried to prove that he acted on the desire for a speedy resolution before he was

charged. Id. at 284-285. To do this, he submitted two letters of representation by his

attorney prior to being charged. Neither of these letters show that he tried to get his case

into court before the complaint and information were filed. Both letters were identical

and primarily sought discovery from the State.

        Further, Estrada, rather than the State, was in the position to know when and why

Colunga left the United States to return to Mexico. Estrada was thus in the position to

know whether the presentation of evidence favorable to his case was at risk due to the

possible loss of Colunga’s testimony by Colunga returning to Mexico for the entire time

from when the complaint and information were filed until Colunga’s death. But yet,

Estrada did not file a motion for a speedy trial during that time period. As indicated

above, Estrada did not testify about the reason that Colunga returned to Mexico which

could have been for any number of reasons that would have informed Estrada of the need

to secure Colunga’s testimony or to take efforts to expedite a trial setting.

        Based on the foregoing analysis, this factor weighs against Estrada.


State v. Estrada                                                                      Page 7
Prejudice to the Accused—Fourth Barker Factor

        When a court assesses the fourth Barker factor, it must do so in light of the interests

of the defendants whom 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. Barker v. Wingo,

407 U.S. at 532; Dragoo, 96 S.W.3d at 316. Of these interests, "the most serious is the last,

because the inability of a defendant adequately to prepare his case skews the fairness of

the entire system." Barker, 407 U.S. at 532; see also Gonzales v. State, 435 S.W.3d 801, 812

(Tex. Crim. App. 2014).

        Estrada did not claim he was prejudiced due to oppressive pretrial incarceration,

he has been out on bail, or anxiety or concern over the pending charges. Instead, he

claimed prejudice due to the unavailability of a witness, Colunga.             Since Estrada

prevailed on his speedy trial claim in the trial court, we must defer to the trial court's

finding that Estrada would have called a witness to testify on Estrada’s behalf but the

witness died two weeks before the motion to dismiss and speedy trial hearing. See State

v. Munoz, 991 S.W.2d 818, 829 (Tex. Crim. App. 1999). However, Barker requires more of

a showing than this. Id. In order to support a determination of prejudice, a defendant must

show not only that the witness was unavailable, but also that the testimony might be

material and relevant to the case. Phipps v. State, 630 SW.2d 942, 946-47 (Tex. Crim. App.

[Panel Op.] 1982); see Dragoo v. State, 96 S.W.3d 308, 313 n. 3 (Tex. Crim. App. 2003). See


State v. Estrada                                                                         Page 8
also Ex parte Perez, 398 S.W.3d 206, 212 n.7 (Tex. Crim. App. 2013) (speedy-trial complaints

require a defendant to show more than the fact that the State's delay caused witnesses to

be missing; a defendant must additionally show the materiality of the missing testimony

and establish how the absence of such testimony would impact his defense).

        Although Estrada testified as to the unavailability of his witness due to the

witness’s death, he provided no information about what the witness would have testified

to in court. The only information Estrada supplied about the witness was that the witness

was with Estrada in the hours before Estrada’s arrest. He provided nothing to show that

the testimony the witness would have provided was material and relevant to Estrada’s

defense. The trial court found this factor to be in favor of Estrada; but, because of

Estrada’s failure to show that the testimony would have been material and relevant, this

factor must be weighed against Estrada.

Balancing

        In balancing the four factors, we find that although the delay was sufficient to

trigger a speedy trial analysis and could be attributed to the State, it was not overly

excessive as to be overtly prejudicial. Further, although the State did not present an

explanation for the delay, there was no evidence that the delay was in bad faith; thus this

factor does not weigh heavily against the State. On the other hand, Estrada did not timely

assert his right to a speedy trial because he did not try to move his case toward filing.

When his case was finally filed, he did nothing about a speedy trial until after Colunga


State v. Estrada                                                                      Page 9
died and only then requested a dismissal rather than a speedy trial. Accordingly this

factor weighs somewhat heavily against Estrada. As to the prejudice factor, the trial court

found Estrada to be prejudiced because his defense was impaired due to the death of a

witness and weighed this factor heavily against the State. However, we could find no

prejudice because Estrada did not show the materiality and relevance of the prospective

witness’s possible testimony; and thus, we weigh this factor as being against Estrada.

Balancing the four Barker factors, we hold that they weigh against Estrada, and the trial

court erred in concluding otherwise.

CONCLUSION

        The trial court erred in granting Estrada’s motion to dismiss, and the State’s sole

issue is sustained.   The trial court’s order granting Estrada’s motion to dismiss is

reversed, and this case is remanded for further proceedings.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed July 20, 2016
Do not publish
[CR25]




State v. Estrada                                                                    Page 10
