AFFIRMED; Opinion Filed March 7, 2019




                                                                 In The
                                          Court of Appeals
                                   Fifth District of Texas at Dallas
                                                      No. 05-18-00358-CR

                                          THE STATE OF TEXAS, Appellant
                                                      V.
                                          FRANCISCO NIETO JR., Appellee

                                On Appeal from the 216th Judical District Court
                                           Gillespie County, Texas
                                         Trial Court Cause No. 6649

                                         MEMORANDUM OPINION
                               Before Justices Bridges, Partida-Kipness, and Carlyle
                                            Opinion by Justice Carlyle

          In a single issue, the State of Texas appeals the trial court’s order granting Francisco Nieto

Jr.’s motion to set aside an indictment against him based on violation of his constitutional right to

a speedy trial.1 We affirm.

                                 I. FACTUAL AND PROCEDURAL CONTEXT

          The charged offense in this case, felony driving while intoxicated, was allegedly committed

by Nieto on July 27, 2013. He was arrested on that date. After spending approximately one week

in jail, he was released on bond.




     1
       This appeal was originally filed in the Fourth Court of Appeals of Texas in San Antonio. It was transferred to this Court by the Texas
Supreme Court pursuant to a March 17, 2018 docket equalization order. See TEX. GOV’T CODE ANN. § 73.001.
           More than two years and eight months later, on April 14, 2016, Nieto was indicted for that

offense in trial court cause number 5952. On August 17, 2016, Nieto filed a “Motion to Dismiss

Prosecution with Prejudice for Lack of a Speedy Trial” (the “2016 motion to dismiss”). In that

motion, he complained of the State’s (1) failure to comply with provisions of the Texas Code of

Criminal Procedure requiring a timely indictment and (2) violation of his speedy trial right under

the Sixth Amendment to the United States Constitution. That motion was set for a September 15,

2016 hearing.

           During the next several months, Nieto’s counsel requested and was granted two

continuances based on counsel’s unavailability. Also, (1) at a September 19, 2016 hearing, counsel

for Nieto stated that he and the State had “agreed to reset” to resolve a discovery matter, and (2) at

a March 8, 2017 hearing, counsel for Nieto requested and was granted a continuance based on his

motion to withdraw as retained counsel and be designated as Nieto’s appointed counsel. Nieto’s

2016 motion to dismiss was heard on May 4, 2017, and cause number 5952 was dismissed without

prejudice on that date.

           The State filed a notice of appeal to the Fourth Court of Appeals in San Antonio and

obtained a stay of all trial court proceedings pending disposition of that appeal. In an October 11,

2017 order, the court of appeals dismissed that appeal as untimely filed.2

           Despite the May 4, 2017 dismissal order, the State filed an October 24, 2017 motion to

dismiss the indictment in cause number 5952 because “the Court of Appeals has dismissed the

appeal and . . . the case will be re-presented to the grand jury for consideration, and in the interest

of justice.” The State did not obtain the judge’s signature on the order granting this “motion to


     2
       Prior to dismissing the appeal, the court of appeals issued an August 29, 2017 order in which it directed the State to show cause why the
appeal should not be dismissed and stated in part,

           The order from which the State attempts to appeal was signed on May 4, 2017. Therefore, the State’s notice of appeal was
           due to be filed on May 24, 2017, twenty days from the date the order was signed. See TEX. R. APP. P. 26.2(b). However, the
           State did not file its notice of appeal until May 26, 2017. Moreover, the State did not timely file a motion to extend time to
           file the notice of appeal, which would have been due on June 8, 2017.
                                                                       –2–
dismiss” until November 21, 2017. On December 6, 2017, a grand jury indicted Nieto for the same

offense in trial court cause number 6649.

       On January 24, 2018, Nieto filed a “Motion to Set Aside Indictment for Failure to Afford

Constitutional Right to Speedy Trial” in cause number 6649 (the “2018 motion to dismiss”). In

that motion, Nieto again complained of violation of his speedy trial right under the Sixth

Amendment. Also, he stated in part “[t]here are no satisfactory reasons for the over four and a half

year delay in bringing [him] to trial” and he “has been substantially prejudiced in that his ability

to present his defense has been impaired and because of the prolonged anxiety and concern he has

suffered.” The State filed a response to that motion in which it argued in part (1) the length of the

delay in this case is “2½ years” and “weighs in favor of [Nieto],” but not “heavily”; (2) Nieto

requested “multiple continuances” and “never sought a speedy trial, but rather only a dismissal of

the charges”; and (3) Nieto “was not in custody, and offered no evidence of any prejudice.”

       At the March 7, 2018 hearing on Nieto’s 2018 motion to dismiss, the State introduced into

evidence a September 14, 2013 report respecting analysis of a blood sample taken from Nieto at

the time of his arrest. Nieto testified in part that he is diabetic. Also, he stated he does not

“remember this case” “as well as when it happened” and has been “worried and stressed about this

case.” During closing, counsel for Nieto argued in part (1) because more than two years passed

before Nieto was first indicted, he “lost the opportunity to retest that blood before he had a lawyer,”

and (2) because the blood sample has been “fermenting” since 2013, Nieto “can’t retest it” and

“can’t explore the possibility that the results are affected by the diabetes.”

       The trial court granted Nieto’s 2018 motion to dismiss and dismissed the case with

prejudice. The State timely appealed.




                                                 –3–
                      II. VIOLATION OF RIGHT TO SPEEDY TRIAL

       The Sixth Amendment to the U.S. Constitution guarantees the accused in a criminal

prosecution the right to a speedy trial. See U.S. CONST. amend. VI. The right to a speedy trial

attaches once a person is either arrested or charged. Cantu v. State, 253 S.W.3d 273, 281 (Tex.

Crim. App. 2008). A speedy trial claim is analyzed on a case-by-case basis by weighing and

balancing the following factors: (1) length of delay, (2) the reason for the delay, (3) the defendant’s

assertion of his right, and (4) the prejudice inflicted on the defendant by the delay. Barker v. Wingo,

407 U.S. 514, 530 (1972). These “are related factors, which must be considered together along

with any other relevant circumstances.” Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App.

2002) (citing Barker, 407 U.S. at 533). “No one factor possesses ‘talismanic qualities,’ thus courts

must ‘engage in a difficult and sensitive balancing process’ in each individual case.” Id. (quoting

Barker, 407 U.S. at 533).

       If the delay in question is unreasonable enough to be presumptively prejudicial, the first

factor is satisfied and analysis of the remaining three factors is triggered. Cantu, 253 S.W.3d at

281 (citing Zamorano, 84 S.W.3d at 648). The State must satisfy its burden of justifying the length

of the delay while the defendant must meet his burden of proving the assertion of the right and

showing prejudice. Id. at 280. The State’s reason for the delay serves to determine how heavily

the length of the delay should weigh against the State. Zamorano, 84 S.W.3d at 649. The

defendant’s burden of proof varies inversely to the State’s degree of culpability for the delay.

Cantu, 253 S.W.3d at 280. In other words, “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. at 280–81.

       We apply a bifurcated standard of review to a trial court’s ruling on a speedy trial claim.

Id. at 282. The factual components are reviewed for an abuse of discretion, while the legal

                                                 –4–
components are reviewed de novo. Id. Review of the individual Barker factors necessarily involves

factual determinations and legal conclusions, but the balancing test as a whole is “a purely legal

question.” Id. With regard to the trial court’s determination of factual issues, we view all the

evidence in the light most favorable to the trial court’s ruling. Id.

        In its sole issue on appeal, the State contends the trial court erred by granting Nieto’s 2018

motion to dismiss because “[t]he delay of 992 days between arrest and indictment is not so long

as to violate the Appellee’s speedy trial rights, especially when it is balanced against the Appellee’s

failure to request a speedy trial, multiple requests for continuances, and very little demonstrated

prejudice.”

                                         A. Length of Delay

        The first Barker factor involves a double inquiry: “A court must consider whether the delay

is sufficiently long to even trigger a further analysis under the Barker factors, and if it is, then the

court must consider to what extent it stretches beyond this triggering length.” Hopper v. State, 520

S.W.3d 915, 924 (Tex. Crim. App. 2017). That second inquiry is significant to the speedy trial

analysis because “the presumption that pretrial delay has prejudiced the accused intensifies over

time.” Zamorano, 84 S.W.3d at 649. “Thus, any speedy trial analysis depends first upon whether

the delay is more than ‘ordinary’; if so, the longer the delay beyond that which is ordinary, the

more prejudicial that delay is to the defendant.” Id. “In general, courts deem delay approaching

one year to be unreasonable enough to trigger the Barker enquiry.” Dragoo v. State, 96 S.W.3d

308, 313 (Tex. Crim. App. 2003). The length of delay is measured from the time the defendant is

arrested or formally accused, whichever occurs first. Id.

        In Zamorano, the court of criminal appeals stated that a delay of two years and ten months

between the defendant’s arrest and the hearing on his speedy trial motion in a DWI case was

“sufficiently lengthy” to trigger an analysis of the other Barker factors. Zamorano, 84 S.W.3d at

                                                  –5–
643. Further, in that same case, that court stated a “nearly four-year delay” between the defendant’s

arrest and his plea hearing “stretched well beyond the bare minimum needed to trigger judicial

examination of the claim” and therefore the first Barker factor weighed “heavily against the State”

in that case. Id.

        In its appellate brief, the State describes the length of the delay in this case as “992 days

between the date of arrest and the date of the first indictment.” By contrast, Nieto asserts “the

relevant delay is 4 years and 8 months.” Regardless, the delay of “992 days,” or more than two

years and eight months, between Nieto’s DWI arrest and the first indictment was “sufficiently

lengthy” to trigger an analysis of the other Barker factors. See Zamorano, 84 S.W.3d at 643.

        Further, after the dismissal without prejudice in cause number 5952, Nieto was not indicted

again until December 6, 2017, seven months after that dismissal and more than four years and four

months after his arrest. The State argues that a portion of the delay complained of by Nieto was

due to continuances requested by him that resulted in his trial being continued from September

2016 to May 2017. But even excluding the eight-month period from September 2016 to May 2017,

the length of the delay between Nieto’s arrest and his second indictment is more than three and

one-half years. We conclude the relevant delay in this case “stretched well beyond the bare

minimum needed to trigger judicial examination of the claim” and therefore the first Barker factor

weighs “heavily against the State.” See id. (“nearly four-year” time period that defendant’s case

“lingered on the docket” was relevant in determining weight of first Barker factor).

                                        B. Reason for Delay

        The State carries the burden of justifying its delay. See Cantu, 253 S.W.3d at 280. In

assessing the reason for the more-than-three-and-one-half-year delay described above, we are

instructed to assign different weights to different reasons. See Balderas v. State, 517 S.W.3d 756,

768 (Tex. Crim. App. 2016) (citing Dragoo, 96 S.W.3d at 314). “In the absence of an assigned

                                                –6–
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.” Id. Between diligent prosecution and bad-

faith delay is the middle ground of official negligence in bringing an accused to trial. Doggett v.

U.S., 505 U.S. 647, 656–57 (1992). Such negligence is weighed more lightly than a deliberate

intent to harm the accused’s defense. Id. at 657. Courts’ tolerance of such negligence “varies

inversely with its protractedness and its consequent threat to the fairness of the accused’s trial.”

Id.

       The State offered no excuse or explanation for the delay between Nieto’s arrest and the

first indictment. This was negligent. Further, an additional seven months of delay was due to the

State pursuing an appeal it filed untimely and then abandoned. The Fourth Court of Appeals’

August 29, 2017 order shows the State failed to timely request an extension by June 8, 2017.

Worse, the State failed to respond to our sister court’s order to show cause why the appeal should

not be dismissed for untimeliness. Instead the State did nothing, allowing seven months to pass.

Our sister court dismissed the appeal on October 11, 2017. Based on the State’s official

negligence—a lack of explanation for the two-year-and-eight-month portion of the delay between

Nieto’s arrest and his first indictment—and the negligence as to another seven-month portion of

the complained-of delay while the State failed to prosecute its appeal, “this factor, too, weighs in

favor of finding a violation of the speedy trial right,” though not heavily. Dragoo, 96 S.W.3d at

314.

                                       C. Assertion of Right

       Filing a motion to dismiss instead of a motion for 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 (citing Zamorano, 84 S.W.3d at 651 n.40). However, seeking only dismissal will

not necessarily result in a waiver of the claim. Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim.

                                                –7–
App. 1983). “In some cases, defense counsel may legitimately feel that a long delay has caused a

client so much prejudice that dismissal is warranted, even if the State is belatedly ready to move

promptly.” Id. “Each case must turn on its own facts, and the particular relief a defendant seeks is

but one fact to consider.” Id.

       The State asserts Nieto “never filed a motion for speedy trial, but instead actively sought

multiple motions for continuance and obtained them.” Nieto responds that at the time he filed his

motions to dismiss, “his defense had been sufficiently prejudiced . . . that seeking a dismissal

became his only option.” Also, he asserts the continuances in question should not “count against

his speedy trial claim” because counsel’s unavailability was not Nieto’s fault and the fourth

continuance was for the purpose of designating Nieto’s retained counsel as appointed counsel.

       The fact that Nieto did not request a speedy trial as an alternative to his motion to dismiss

does not automatically eliminate his claim. See Phillips, 650 S.W.2d at 401; State v. Tatom, No.

05-14-01246-CR, 2015 WL 4931445, at *6 (Tex. App.—Dallas Aug. 18, 2015, no pet.) (mem.

op., not designated for publication). But Nieto’s claim is attenuated by his lack of request that a

speedy trial be conducted and by his motions for continuance. See Tatom, 2015 WL 4931445, at

*6; Hurdsman v. State, No. 02-17-00319-CR, 2018 WL 5832116, at *5 (Tex. App.—Fort Worth

Nov. 8, 2018, no pet.) (mem. op., not designated for publication); State v. Smith, No. 06-12-00174-

CR, 2013 WL 624126, at *4 (Tex. App.—Texarkana Feb. 20, 2013, no pet.) (mem. op., not

designated for publication). We conclude this factor “weighs against” Nieto, but not heavily. See

Tatom, 2015 WL 4931445, at *6; Hurdsman, 2018 WL 5832116, at *5 (concluding third Barker

factor “weighs against” defendant who requested and was granted continuance, then moved for

dismissal without asking that speedy trial be conducted); Smith, 2013 WL 624126, at *4 & n.9

(continuance and request for dismissal without asking for trial “weigh[ed] against” defendant, but

not “heavily”).

                                                –8–
                                            D. Prejudice

        When a court analyzes Barker’s prejudice factor, it must do so in light of the defendant’s

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. See Dragoo, 96 S.W.3d at 315 (citing Barker, 407

U.S. at 532). Of these forms of prejudice, “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. (quoting

Barker, 407 U.S. at 532). The defendant has the burden to make some showing of prejudice,

although a showing of actual prejudice is not required. State v. Munoz, 991 S.W.2d 818, 826 (Tex.

Crim. App. 1999). When the defendant makes a prima facie showing of prejudice, the burden shifts

to the State to show that the defendant suffered “no serious prejudice beyond that which ensued

from the ordinary and inevitable delay.” Id. (quoting Ex parte McKenzie, 491 S.W.2d 122, 123

(Tex. Crim. App. 1973)); see Anderson v. State, No. 05-17-00933-CR, 2018 WL 3238011, at *5

(Tex. App.—Dallas Jul. 3, 2018, no pet.) (mem. op., not designated for publication).

        The State contends Nieto “demonstrated some slight prejudice with regard to the second

type of prejudice that courts examine in these situations,” but “the first and third types of prejudice

are absent.” Nieto asserts he “spent a week in jail and far longer living under strict bond conditions,

suffered serious anxiety, concern, and health problems during this time, no longer remembers the

events nearly as well as he had previously, and no longer has the ability to retest the blood evidence

in his case.”

        As described above, Nieto was incarcerated for one week immediately following his arrest.

The timing of that incarceration demonstrates it was not due to a lack of a speedy trial. Further,

although Nieto testified he has been “worried and stressed about this case,” generalized anxiety,

alone, is not sufficient to establish prejudice. See Cantu, 253 S.W.3d at 286. But additionally, the

                                                 –9–
record shows Nieto’s diminished memory and the loss of the opportunity to retest Nieto’s blood

sample. The lost opportunity to retest blood evidence in a DWI case demonstrates a possibility of

impairment of Nieto’s defense, which relied—at least in part—on his diabetes. See State v. Smith,

66 S.W.3d 483, 492 (Tex. App.—Tyler 2001, no pet.) (fourth Barker factor weighed in favor of

defendant in DWI case where delay resulted in dimming of memories and loss of videotape that

could demonstrate effect of defendant’s consumption of alcohol). The State did not rebut this claim

by evidence or argument at either hearing on Nieto’s motions to dismiss. On this record, we

conclude the prejudice factor weighs in Nieto’s favor. See id.; see also Zamorano, 84 S.W.3d at

655 (“Even if appellant’s actual prejudice was minimal, ‘[c]ondoning prolonged and unjustifiable

delays in prosecution would both penalize many defendants for the state’s fault and simply

encourage the government to gamble with the interests of criminal suspects assigned a low

prosecutorial priority.’”).

                                     E. Balancing the Factors

        Having addressed the four Barker factors, we now “engage in a difficult and sensitive

balancing process.” Zamorano, 84 S.W.3d at 648. Weighing heavily against the State is the lengthy

and unexplained post-arrest, pre-case-initiation delay of more than two years and eight months.

The lack of reason for this delay, which is State negligence, also weighs against it. The additional

seven-month delay, caused by the State untimely noting an appeal and then sitting mute, even

ignoring an order to show cause, weighs heavily against the State. The assertion-of-the-right factor

weighs against Nieto. And finally, prejudice weighs in Nieto’s favor. Thus, only one of the four

factors weighs against Nieto and the other three tip the balance in his favor, including at least one

factor that weighs “heavily” in his favor. Like the trial court, we conclude the Barker factors

predominate in favor of Nieto. See Barker, 407 U.S. at 533. Therefore, the trial court did not err

by granting Nieto’s 2018 motion to dismiss based on violation of his right to a speedy trial.

                                               –10–
                                      III. CONCLUSION

       We affirm the trial court’s order.


                                                        /Cory L. Carlyle/
                                                        CORY L. CARLYLE
                                                        JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
180358F.U05




                                            –11–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 THE STATE OF TEXAS, Appellant                         On Appeal from the 216th Judical District
                                                       Court, Gillespie County, Texas
 No. 05-18-00358-CR         V.                         Trial Court Cause No. 6649.
                                                       Opinion delivered by Justice Carlyle.
 FRANCISCO NIETO JR., Appellee                         Justices Bridges and Partida-Kipness
                                                       participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 7th day of March, 2019.




                                                –12–
