Opinion filed July 16, 2015




                                       In The


        Eleventh Court of Appeals
                                     __________

                              No. 11-13-00172-CR
                                     __________

                          LARRY TORRES, Appellant
                                          V.
                      THE STATE OF TEXAS, Appellee

                     On Appeal from the 244th District Court
                              Ector County, Texas
                        Trial Court Cause No. C-33,146

                      MEMORANDUM OPINION
       Larry Torres appeals his jury conviction for aggravated robbery. TEX. PENAL
CODE ANN. § 29.03 (West 2011). The trial court assessed his punishment at
confinement in the Institutional Division of the Texas Department of Criminal
Justice for a term of thirty years. In four issues on appeal, Appellant argues that the
trial court erred when it denied his motion to set aside the indictment for a violation
of his right to a speedy trial, when the trial court allowed a chemist to testify about
the chemical makeup of a substance without the actual substance being admitted,
when the trial court failed to suppress evidence found as a result of a purportedly
illegal search of his vehicle, and when the trial court failed to find that the basis for
the stop was invalid. We affirm.
                                  Background Facts
      Appellant was found guilty of aggravated robbery that was alleged to have
occurred on May 16, 2005. Appellant was indicted on May 8, 2006. Appellant did
not go to trial until April 30, 2013. The day before trial, Appellant filed a motion to
set aside the indictment for violation of his right to a speedy trial. The trial court
conducted a hearing and denied Appellant’s motion.
      The jury found Appellant guilty, and he elected for the trial court to assess
punishment. During the punishment phase of trial, evidence was admitted about an
extraneous offense that occurred on August 1, 2012. Appellant was stopped for
failure to come to a complete stop at the designated point. Appellant stopped
approximately five feet past a stop sign. Officers asked Appellant to step out of the
vehicle, and they found a substance in a clear plastic bag in Appellant’s hand. After
searching his vehicle, officers found several more clear plastic bags filled with white
powder.
      The State questioned Marissa Silva, a chemist with the Texas Department of
Public Safety Laboratory in Midland, during the punishment phase. Silva testified
that she analyzed the substance found during the traffic stop on August 1, 2012.
Silva concluded that it was 1.07 grams of cocaine. Appellant did not object to this
testimony. The actual cocaine was not admitted into evidence.
                                       Analysis
      In his first issue, Appellant asserts that his right to a speedy trial was violated
when the trial court denied his motion to set aside the indictment. The Sixth
Amendment of the United States Constitution, made applicable to the states through
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the Fourteenth Amendment, provides that, “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.” U.S. CONST. amend. VI;
see also Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014). Courts
determine a speedy trial claim on an “ad hoc basis” by analyzing and weighing four
factors: (1) the length of the delay, (2) the State’s 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 delay. Barker v. Wingo, 407 U.S. 514, 530 (1972);
Gonzales, 435 S.W.3d at 808. The State has the burden to justify the length of the
delay, while the defendant has the burden to prove he asserted his right and is
prejudiced. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). The
defendant’s burden 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)) (internal quotation marks omitted). When conducting the
balancing test, no single factor is determinative, and the conduct of both the
prosecutor and the defendant must be weighed. Barker, 407 U.S. at 530, 533; State v.
Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).
      To trigger a speedy trial analysis, the defendant must make an initial showing
that “the interval between accusation and trial has crossed the threshold dividing
ordinary from ‘presumptively prejudicial’ delay.” Gonzales, 435 S.W.3d at 808
(quoting Doggett v. United States, 505 U.S. 647, 651–52 (1992)) (internal quotation
marks omitted).     If the defendant makes a threshold showing of presumptive
prejudice, the court must consider and weigh each of the remaining Barker factors.
Id. (citing Munoz, 991 S.W.2d at 821–22).
      If the right to a speedy trial has been violated, the remedy is dismissal of the
charging instrument with prejudice. Cantu, 253 S.W.3d at 281. Because this is an
extreme remedy, “courts must apply the Barker balancing test with common sense
and sensitivity to ensure that charges are dismissed only when the evidence shows
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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.
      When reviewing the trial court’s ruling on a speedy trial claim, we apply a
bifurcated standard of review. See Gonzales, 435 S.W.3d at 808. Because the State
prevailed in the trial court, we presume the trial judge resolved any disputed fact
issues in the State’s favor, and we defer to the implied findings of fact that the record
supports. Cantu, 253 S.W.3d at 282 (citing Zamorano v. State, 84 S.W.3d 643, 648
(Tex. Crim. App. 2002)). We review legal questions de novo to determine whether
there was sufficient presumptive prejudice to proceed to a Barker analysis and the
weighing of the Barker factors. Gonzales, 435 S.W.3d at 809. We must uphold the
trial court’s ruling if it is supported by the record and is correct under the applicable
law. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003).
      The alleged incident occurred in 2005, and Appellant was indicted in 2006.
Appellant waived arraignment in March 2012. He filed a motion for continuance on
June 14, 2012. Appellant did not go to trial until April 2013. Thus, almost seven
years passed between when Appellant was indicted and when Appellant went to trial.
This multiple-year delay was presumptively prejudicial and weighs against the State.
See Cantu, 253 S.W.3d at 281 (citing Doggett, 505 U.S. at 652 n.1). Accordingly,
we must proceed with an analysis of the remaining Barker factors.
      The next factor considers the reasons for the delay. Barker assigns different
weights to different reasons to justify the delay. Barker, 407 U.S. at 531. “A
deliberate attempt to delay the trial in order to hamper the defense should be weighed
heavily against the government.” Id. However, a more neutral reason should be
weighed less heavily, but is still considered against the State, since the ultimate
responsibility for a speedy trial rests with the State. Id. “Finally, a valid reason,
such as a missing witness, should serve to justify appropriate delay.” Id. The State
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argues that the delay was due to Appellant’s incarceration. Appellant has not
asserted that the State deliberately delayed trial. Thus, the more neutral reason
should be considered. This factor weighs against the State, although less heavily.
Id.
      Regarding the third Barker factor, the defendant bears the responsibility to
assert his right to a speedy trial. Cantu, 253 S.W.3d at 282. Whether and how a
defendant chooses to assert his right “is closely related to the other three factors
because the strength of his efforts will be shaped by them.” Id. at 282–83. A
defendant’s failure to timely seek a speedy trial does not amount to a waiver of the
right. Shaw, 117 S.W.3d at 890 (citing Barker, 407 U.S. at 532). However, a
defendant’s failure to timely demand a speedy trial makes it difficult for the
defendant to prevail on a speedy trial claim because the failure to timely demand a
speedy trial indicates strongly that he did not really want a speedy trial and was not
prejudiced by not having one. Id.; see also Barker, 407 U.S. at 536 (“[B]arring
extraordinary circumstances, we would be reluctant indeed to rule that a defendant
was denied this constitutional right on a record that strongly indicates . . . that the
defendant did not want a speedy trial.”); Harris v. State, 827 S.W.2d 949, 957 (Tex.
Crim. App. 1992) (“[A]ppellant’s lack of a timely demand for a speedy trial indicates
strongly that he did not really want a speedy trial.”). The longer the delay becomes,
the more heavily a defendant’s inaction weighs against him. Shaw, 117 S.W.3d at
890. A request that the trial court dismiss the charges for a speedy trial violation,
rather than a request for a prompt trial setting, weakens the strength of a speedy trial
claim because it indicates a desire to avoid trial rather than to obtain a speedy trial.
Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. [Panel Op.] 1983);
Orosco v. State, 827 S.W.2d 575, 577 (Tex. App.—Fort Worth 1992, pet. ref’d).
      Appellant first asserted his speedy trial right when he moved to set aside the
indictment almost seven years after he had been indicted. Appellant asserted this
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right one day before trial was to begin. This factor weighs heavily against finding a
speedy trial violation because Appellant’s actions demonstrated only the desire to
avoid a trial and obtain a dismissal rather than to obtain a speedy trial. See
Barringer v. State, 399 S.W.3d 593, 601–02 (Tex. App.—Eastland 2013, no pet.).
       The last Barker factor to consider is prejudice to the defendant. “Because
‘pretrial delay is often both inevitable and wholly justifiable,’” this factor “examines
whether and to what extent the delay has prejudiced the defendant.” Cantu, 253
S.W.3d at 285 (quoting Doggett, 505 U.S. at 656). The prejudice must be assessed
in light of the interests that the speedy trial right is meant to protect: (1) preventing
oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused,
and (3) limiting the possibility that the defense will be impaired. Id.; see also Barker,
407 U.S. at 532. Of these three interests, the possibility the defense will be impaired
by dimming memories and the loss of exculpatory evidence is the most serious
“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 Doggett, 505 U.S.
at 654; Gonzales, 435 S.W.3d at 812.
       Appellant was incarcerated for another offense for the majority of the delay.
There was no evidence of oppressive pretrial incarceration for this offense.
Although Appellant testified at the hearing, there is no evidence that Appellant
suffered from anxiety or concern because of the delay. Finally, Appellant’s counsel
expressed concerns about memories fading. However, there was no showing of any
actual prejudice in the form of lost exculpatory evidence. Shaw, 117 S.W.3d at 890–
91. Appellant did not present any witnesses at trial. Additionally, his trial counsel
was able to cross-examine the State’s primary witness about her memory from eight
years ago. Accordingly, this factor weighs against finding a violation of Appellant’s
right to a speedy trial.


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      Weighing in favor of finding a violation of Appellant’s right to a speedy trial
are the length of delay and the neutral reason for the delay by the State. However,
the factors weighing against Appellant are the facts that Appellant failed to assert
his right until the day before trial was to begin and that he failed to demonstrate any
prejudice. We hold that the weight of the four factors, balanced together, is against
finding a violation of Appellant’s right to a speedy trial. Barker, 407 U.S. at 534;
Shaw, 117 S.W.3d at 891. Thus, the trial court did not abuse its discretion when it
denied Appellant’s motion to set aside the indictment on speedy trial grounds. We
overrule Appellant’s first issue.
      In his second issue, Appellant challenges the admission of Silva’s testimony
during the punishment phase about her analysis of the substance found in
Appellant’s possession at the time of his arrest. Appellant argues that, since the
cocaine was not admitted as evidence, Silva could not testify that what she tested
was cocaine. The State questioned Silva about her credentials as a chemist for the
Texas Department of Public Safety Laboratory in Midland. Silva testified that she
analyzed the substance and concluded that it was 1.07 grams of cocaine. Appellant
did not object to this testimony. The actual cocaine was not admitted into evidence.
      Appellant has waived any objection to the admission of Silva’s testimony by
not objecting at trial. TEX. R. APP. P. 33.1. However, even if Appellant had objected
at trial, it would not have been error for the trial court to admit Silva’s testimony.
We review a trial court’s decision to admit evidence under an abuse of discretion
standard. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). A
chemist’s opinion is admissible even if the facts or data relied upon are not admitted
into evidence. TEX. R. EVID. 703; Henderson v. State, 822 S.W.2d 171, 173 (Tex.
App.—Houston [1st Dist.] 1991, no pet.). The trial court did not abuse its discretion
when it admitted the testimony of Silva concerning the cocaine. We overrule
Appellant’s second issue.
                                          7
      In his third issue, Appellant contends that the trial court erred when it failed
to suppress any evidence found inside the vehicle he was driving after the police
stopped him at an intersection. Appellant alleges that the search of his vehicle was
illegal as a search incident to an arrest. See Arizona v. Gant, 556 U.S. 332, 339
(2009). The State argues that the search was reasonable under the automobile
exception to the Fourth Amendment. See Wiede v. State, 214 S.W.3d 17, 24 (Tex.
Crim. App. 2007). In this regard, “Gant did not diminish the reach of the automobile
exception.” Barnes v. State, 424 S.W.3d 218, 225 (Tex. App.—Amarillo 2014, no
pet.) (citing Gant, 556 U.S. at 346–47).
      Appellant did not object at trial to the search that he complains about on
appeal. Thus, Appellant has waived this issue. TEX. R. APP. P. 33.1. However, we
further conclude that the trial court would not have abused its discretion if it had
overruled an objection to the contraband discovered inside his vehicle during the
search. Under the automobile exception, officers “may conduct a warrantless search
of a vehicle if it is readily mobile and there is probable cause to believe that it
contains contraband.” Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009).
Police may conduct a warrantless search of a vehicle if they have probable cause to
believe that the vehicle contains contraband. Id. Probable cause exists when there
is a “fair probability” of finding inculpatory evidence at the location being searched.
Illinois v. Gates, 462 U.S. 213, 238 (1983). We consider the totality of the
circumstances to determine probable cause. Id.; Wiede, 214 S.W.3d at 25.
      Appellant was stopped for a traffic violation by Deputy Javier Leyva. As he
approached Appellant’s vehicle, Deputy Leyva observed Appellant attempting to
tuck something under either his seat or his leg. Deputy Leyva testified that this
conduct was consistent with an attempt to conceal something. When Appellant
stepped out of the vehicle, Deputy Leyva and his partner observed Appellant holding
something in his hand. Deputy Leyva stated that it was “a clear plastic bag
                                           8
containing a white powder substance” that the officers believed to be a controlled
substance. Deputy Leyva then “went around to the driver’s side and conducted a
search and then located some more clear plastic bags with a white powder
substance.” The deputy’s observation of Appellant’s attempt to conceal something
inside his vehicle as the officers approached it, coupled with Appellant’s possession
of what appeared to be a controlled substance in his hand, provided the officers with
probable cause to search Appellant’s vehicle under the automobile exception. Thus,
the trial court would not have abused its discretion in overruling a suppression
objection to the evidence seized from Appellant’s vehicle. We overrule Appellant’s
third issue.
       In his fourth issue, Appellant challenges the officers’ basis for initiating the
stop of his vehicle for a traffic violation. Appellant preserved this issue by objecting
on this basis to Deputy Leyva’s testimony about the traffic stop. Deputy Leyva
testified that he and his partner stopped Appellant for a traffic violation when
Appellant drove past a stop sign and stopped five feet into an intersection.
Deputy Leyva stated that there was a “white line” that was “directly parallel” with
the stop sign and that Appellant drove past the white line before stopping. The
Transportation Code requires a driver to stop at a clearly marked stop line. TEX.
TRANSP. CODE ANN. § 544.010(c) (West 2011). An officer may lawfully stop and
reasonably detain a person for a traffic violation. Garcia v. State, 827 S.W.2d 937,
944 (Tex. Crim. App. 1992); see also Walter v. State, 28 S.W.3d 538, 542 (Tex.
Crim. App. 2000) (In general, the decision to stop an automobile is reasonable when
an officer has probable cause to believe that a traffic violation has occurred.). Here,
officers observed Appellant commit a traffic violation when he crossed the white
line that was parallel with the stop sign. Accordingly, the trial court did not abuse
its discretion when it overruled Appellant’s objection based on the legality of the
traffic stop. We overrule Appellant’s fourth issue.
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                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


July 16, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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