                             NUMBER 13-15-00611-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

THE STATE OF TEXAS,                                                          Appellant,

                                            v.

KENNETH LEE COOLEY JR.,                                                      Appellee.


                  On appeal from the 377th District Court of
                          Victoria County, Texas.


                         MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Longoria
             Memorandum Opinion by Justice Longoria
       The State of Texas (“the State”) appeals the trial court’s order granting Kenneth

Lee Cooley Jr.’s (“Cooley”) motion to dismiss for violation of his right to a speedy trial.

See U.S. CONST. amend. VI. On appeal, the State argues that the trial court erred in

granting Cooley’s motion to dismiss because Cooley’s right to a speedy trial was not
violated. For the reasons stated below, we find that the trial court erred in finding a

violation of Cooley’s right to a speedy trial. We reverse and remand.

                                      I. BACKGROUND

       Cooley was first indicted on December 18, 2014 in cause number 14-12-28405-A

for the offense of manufacture/delivery of a controlled substance (methylenedioxy

methamphetamine, commonly known as “ecstasy”) in a drug-free zone. See TEX. HEALTH

& SAFETY CODE ANN. §§ 481.112, 481.134(b) (West, Westlaw through 2015 R.S.). On

January 9, 2015, Cooley asked the court for a continuance so that he could retain an

attorney. On January 20, 2015, Cooley’s case was reset to February 17, 2015 to give

him additional time to find an attorney. On February 17, 2015, Cooley again requested

more time to hire an attorney. The case was then reset to April 14, 2015. On April 14,

2015, Cooley requested more time to hire an attorney. At the April 14th hearing, the court

asked Cooley directly if he still intended to hire an attorney.   The record reflects that

Cooley responded, “Yeah I guess so.” The case was reset to July 8, 2015. On July 8,

2015, a court-appointed attorney represented Cooley. At this hearing, Cooley complained

that his court-appointed attorney had only seven months of experience. In addition, the

State filed a motion to dismiss so that the case could be refiled because the indictment

contained an error: the indictment erroneously alleged that Cooley was in possession of

methylenedioxy methamphetamine instead of alleging that he was in possession of

methamphetamine. Cooley did not raise any objections over the case being reset, and

the trial court dismissed the case.

       Fifteen days later, on July 23, 2015, the State re-filed the charge against Cooley

under cause number 15-07-28842-A. In the new indictment, Cooley was charged with

actual delivery of methamphetamine. On August 17, 2015, both the State and Cooley’s
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court-appointed attorney agreed to reset the case to September 15, 2015.            Cooley

complained again, this time stating that his attorney possessed insufficient experience

with criminal law to adequately represent him. On October 28, the State filed a motion to

amend the indictment. The State moved to amend the indictment because of another

error: in writing the second indictment against Cooley, the language was accidentally

changed to erroneously allege that he was charged with actual delivery instead of

manufacture/delivery. Cooley’s court-appointed counsel objected to the motion. The

State then filed a motion to dismiss, which was granted. The court told Cooley that no

new bond would be required and that the court would entertain a waiver of arraignment.

       On October 29, 2015, Cooley was charged by indictment in the current case under

cause number 15-10-28984-D. The final indictment alleged that Cooley possessed with

intent to deliver methamphetamine in a drug-free zone and that he had a previous

conviction for a controlled-substance offense in a drug-free zone.

       On December 15, 2015, Cooley’s case was called for a motion’s docket. At this

hearing, Cooley orally moved to have the charges against him dismissed because of a

speedy trial violation. This was the first time Cooley had raised speedy trial concerns.

The court did not ask for any showing of prejudice during the hearing, but noted that: (1)

the case had been reindicted several times; (2) Cooley had come to court several times;

(3) Cooley had been to court on jury trial announcement dates; (4) “the first indictment

has completely different elements than the second”; and (5) Cooley “was frustrated with

his attorney and having to present himself to court.” The trial court then granted Cooley’s

motion to dismiss based on a violation of his right to a speedy trial. This appeal followed.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW



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       The United States Supreme Court has laid out four factors that a court should

consider in addressing a speedy-trial claim: (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 the delay. Barker v. Wingo, 407 U.S.

514, 530 (1972). Texas courts apply the same four-factor balancing test to evaluate

alleged violations of the state constitutional right to speedy trial. Zamorano v. State, 84

S.W.3d 643, 648 (Tex. Crim. App. 2002). No single factor of the balancing test in Barker

is dispositive. Barker, 407 U.S. at 533.

       Texas courts review motions to dismiss using a bifurcated standard of review: an

abuse of discretion standard for the factual components and a de novo standard for the

legal components. Zamorano, 84 S.W.3d at 648. In the present case, there are no factual

disputes; thus, the trial court’s legal conclusions must be reviewed de novo. See id.

                                           III. DISCUSSION

       On appeal, the State argues that Cooley failed to establish a prima facie showing

of prejudice and the trial court erred in finding a violation of Cooley’s right to a speedy

trial. We address each of the four Barker factors in our analysis.

   A. The Length of the Delay

       The first Barker factor considers whether the length of the delay before trial was

uncommonly long. Barker, 407 U.S. at 530. The length of the delay between an initial

charge and trial, or the defendant’s demand for a speedy trial, acts as a triggering

mechanism to begin the Barker analysis. Zamorano, 84 S.W.3d at 648. A delay of eight

months or longer is generally considered presumptively unreasonable and triggers a

speedy trial analysis. Id. at 649 n. 26.



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        Here, Cooley’s first indictment relating to this case was issued on December 18,

2014.1 He first asserted his right to a speedy trial had been violated at a hearing

approximately one year later on December 15, 2015. The State agrees that this is

presumptively unreasonable; thus, the first Barker factor favors Cooley.

    B. The State’s Reason for the Delay

        In reviewing the second Barker factor, courts consider “whether the government or

the defendant is more to blame for that delay.” Barker, 407 U.S. at 530. Courts are to

weigh the comparative fault of the parties by analyzing the reasons for the delay. See id.

A deliberate or bad faith prosecutorial delay will weigh heavily against the State, neutral

reasons such as simple negligence will weigh very slightly against the State, and a valid

justification for delay will not weigh against the State at all. See id. at 531.

        Cooley does not assert that the portion of the delay caused by the State was due

to a bad faith attempt to delay the trial. The first indictment alleged possession of the

wrong controlled substance, and the State quickly re-indicted Cooley fifteen days after

the dismissal of the first case. Likewise, the second indictment wrongly alleged actual

delivery instead of possession with intent to deliver.                Once the second case was

dismissed, the State re-indicted Cooley the next day with the final indictment.

Regardless, Cooley asserts that the State still bears the majority of the responsibility for

the delay through its negligence in drafting the indictments.

        However, the State was not the only source of delay. The case was delayed and

reset a total of four times at Cooley’s request so that he could find an attorney. These




         1 We note a small error in the trial court’s Order Dismissing Cause for Violation of Speedy Trial.

The Order stated that Cooley’s first indictment was issued on December 14, 2014, but the record reflects
that his first indictment was actually issued on December 18, 2014.
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four resets delayed the case from January 9, 2015 to July 8, 2015. Thus, nearly six

months of the total twelve-month delay was caused by Cooley’s own delay in securing an

attorney. Cooley states that he should not be punished for attempting to hire his own

attorney. He is not being punished for seeking an attorney, but we also cannot hold the

State accountable for delays Cooley caused. See id.; see also Wade v. State, 83 S.W.3d

835, 839 (Tex. App.—Texarkana 2002, no pet.) (observing that there was no speedy trial

violation when the defendant was directly responsible for a large portion of the delay).

While it is true that the State was responsible for a portion of the twelve-month delay,

Cooley himself was responsible for a larger portion of the delay, and another month of

delay was due to the unexplained mutual agreement of both parties. Therefore, we

conclude that overall, the second Barker factor favors the State.

   C. The Defendant’s Assertion of His Right to a Speedy Trial

       The third Barker factor is whether the defendant timely asserted his right to a

speedy trial. See Barker, 407 U.S. at 530. The failure to request a speedy trial before

seeking dismissal “supports an inference that the defendant does not really want a trial,

he wants only a dismissal.” See Ortega v. State, 472 S.W.3d 779, 786 (Tex. App.—

Houston [14th Dist.] 2015, no pet.). 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.

Twelve months after being initially charged, Cooley asserted his right to speedy trial for

this first time. Cooley moved to dismiss the charges without first requesting a speedy trial

and he offered no “cogent” reasons as to why he deserved a dismissal rather than a trial

date. Id. We find that the third Barker factor strongly favors the State because the record

supports the inference that Cooley was more interested in dismissing the case than

actually receiving a speedy trial. See id.
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   D. Prejudice to the Defendant Because of the Length of the Delay

         The fourth Barker factor considers prejudice suffered by the accused due to the

length of delay. We assess this prejudice “in light of the interests” which “the speedy trial

right [is] designed to protect.” State v. Munoz, 991 S.W. 2d 818, 826 (Tex. Crim. App.

1999).     These interests are: (1) preventing oppressive pretrial incarceration; (2)

minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the

accused’s defense will be impaired. Id. Of these sub-factors, the third is the most

important. Id. If the defendant makes a prima facie showing of prejudice, then the burden

shifts to the State to show that the defendant suffered no serious prejudice. Id.

         Cooley claims that the State failed to show that he suffered no serious prejudice

beyond that which ensues from the ordinary and inevitable delay of the judicial system.

See id. However, the defendant must first make a prima facie showing of prejudice in

order for the State to have the obligation to prove that the accused suffered no serious

prejudice beyond that which ensued from the ordinary and inevitable delay. See id.

Throughout numerous hearings spanning a year, Cooley never argued that he was

suffering prejudice because of the delay. He presented no evidence that he was subject

to oppressive pre-trial incarceration or excessive anxiety and concern. He also made no

argument and raised no evidence that his defense in the case was somehow impaired by

the delay.

         Furthermore, all of the reasons the trial court listed for granting Cooley’s motion to

dismiss are either unsupported by the record or irrelevant to a speedy trial analysis. The

fact that the case had been re-indicted several times, standing alone, does not offer any

insight into whether Cooley’s right to a speedy trial was violated. See Barker, 407 U.S.

at 531–33. Likewise, the fact that Cooley came to court several times and was present
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on the jury trial announcement dates is inapposite in a speedy trial analysis. See id. Also,

it does not matter that the second indictment erroneously accused Cooley of actually

delivering a controlled substance whereas the first and final indictments alleged that

Cooley possessed/manufactured with intent to deliver. Actual delivery or possession with

intent to deliver are two methods of committing the same statutory offense. See TEX.

HEALTH & SAFETY CODE ANN. § 481.112. Thus, the error in the indictment would not have

affected Cooley’s ability to adequately prepare a defense. Finally, it is not pertinent that

Cooley was frustrated with his attorney. We have found no case law suggesting that this

should weigh against the State in a speedy trial analysis. We conclude that Cooley failed

to present a prima facie case of prejudice as a result of the delay. See Munoz, 991 S.W.

2d at 826. Therefore, the fourth Barker factor strongly favors the State.

   E. Balancing the Four Factors

       Having balanced the Barker factors, we conclude that the record does not support

the trial court’s ruling. Although the twelve-month delay was sufficient to trigger a speedy-

trial analysis, Cooley failed to make a prima facie showing of prejudice and at least half

of the delay was directly attributable to Cooley himself.           Furthermore, the delay

attributable to the State was merely the result of negligence rather than a bad faith attempt

to delay the trial. See Barker, 407 U.S. at 531. Accordingly, we hold that Cooley was not

denied his right to a speedy trial. It was an error to dismiss the case. We sustain the

State’s sole issue.

                                      IV. CONCLUSION

              We reverse the trial court’s order dismissing the case and remand to the

trial court for further proceedings consistent with this opinion.



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                                  NORA L. LONGORIA,
                                  Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of September, 2016.




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