REVERSE and REMAND; and Opinion Filed July 7, 2014.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-13-01177-CR

                          THE STATE OF TEXAS, Appellant
                                      V.
                       LATABEN KANCHANLAL PATEL, Appellee

                      On Appeal from the County Criminal Court No. 6
                                   Dallas County, Texas
                          Trial Court Cause No. MA11-70988-G

                             MEMORANDUM OPINION
                         Before Justices Lang-Miers, Myers, and Lewis
                                Opinion by Justice Lang-Miers
       The State of Texas charged Lataben Kanchanlal Patel with operating a sexually oriented

business without a license. Patel moved to set aside the information on speedy trial grounds, and

the trial court granted the motion and dismissed the prosecution. The State appeals. We issue

this memorandum opinion because all matters are settled in law. See TEX. R. APP. P. 47.4. We

reverse the trial court’s order and remand this cause for further proceedings consistent with this

opinion.

                                         BACKGROUND

       An undercover vice police officer went to the Mi Amor Motel in Dallas and asked to rent

a room for two hours. The desk clerk, Patel, gave the officer a registration form and asked for

identification. The officer completed the registration form and asked about the rate for two

hours. Patel said $20. The officer paid Patel $20. Inside the room, the officer turned on the
television and an adult pornographic video began to play. The officer determined that Patel did

not have a license to operate a sexually oriented business, but did not arrest Patel at that time. A

week later, the police obtained a warrant for Patel’s arrest for operating a sexually oriented

business without a license. The warrant was not executed until two years later when Patel

voluntarily turned herself in to police after learning about the arrest warrant.

       A month after Patel’s arrest, the State filed an information formally charging her with the

offense. Two weeks after the information was filed, Patel moved to set aside the information

under articles 1.03, .04, and .05 of the Texas Code of Criminal Procedure, the Sixth Amendment

to the United States Constitution, and article I, section 10 of the Constitution of the State of

Texas for violation of her right to a speedy trial. She alleged that there was a two-year delay

between the issuance of the arrest warrant and her actual arrest and the filing of the charging

instrument. She alleged that she had resided at the same address the entire time, yet the State had

not made any effort to “procure [her] presence in court or even to notify her of the presence of

the warrant.”

       Patel argued in the hearing that the basis of her motion was “post arrest delay.” She

argued that the warrant was issued August 23, 2011, and she became aware of it on May 13,

2013, and posted a bond at that time. She argued “that’s almost a two-year delay.” The trial

court’s concern at the hearing focused on this delay and the court repeatedly asked the State to

explain why it had not sought to bring Patel to justice sooner. The State had no explanation for

the delay, but argued that the delay Patel complained about happened before charges were filed

and before she became accused of an offense. The court granted Patel’s motion and dismissed

the prosecution.




                                                 –2–
       On appeal, the State contends that the trial court erred by granting Patel’s motion for two

reasons: (1) the court used the wrong legal standard, and (2) the evidence does not support the

court’s decision under either the correct or wrong legal standard. Patel did not file a brief.

                                            DISCUSSION

       The Sixth 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. This means that the

Speedy Trial Clause applies “when a formal criminal charge is instituted and a criminal

prosecution begins.” United States v. MacDonald, 456 U.S. 1, 6 (1982).

       At the hearing, Patel argued that the Barker v. Wingo factors weighed in favor of a

finding that her right to a speedy trial was violated. 407 U.S. 514, 530 (1972) (explaining factors

court must weigh in considering defendant’s claim that government violated speedy trial right

under Sixth Amendment). Patel did not argue below that she was entitled to any more or

different rights under the code of criminal procedure or the Texas constitution, and so we limit

our discussion to the Sixth Amendment.

       In United States v. Marion, 404 U.S. 307, 321–22 (1971), the Supreme Court held that

the Sixth Amendment right to a speedy trial does not apply to pre-arrest delay:

       Invocation of the speedy trial provision thus need not await indictment,
       information, or other formal charge. But we decline to extend that reach of the
       amendment to the period prior to arrest. Until this event occurs, a citizen suffers
       no restraints on his liberty and is not the subject of public accusation: his situation
       does not compare with that of a defendant who has been arrested and held to
       answer. Passage of time, whether before or after arrest, may impair memories,
       cause evidence to be lost, deprive the defendant of witnesses, and otherwise
       interfere with his ability to defend himself. But this possibility of prejudice at
       trial is not itself sufficient reason to wrench the Sixth Amendment from its proper
       context. [internal footnotes omitted]

       Later, in United States v. Lovasco, the Court stated that “as far as the Speedy Trial Clause

of the Sixth Amendment is concerned, such [preindictment] delay is wholly irrelevant, since our

analysis of the language, history, and purposes of the Clause persuaded us that only a ‘formal
                                                –3–
indictment or information or else the actual restraints imposed by arrest and holding to answer a

criminal charge . . . engage the particular protections’ of that provision.” 431 U.S. 783, 788–89

(1977) (quoting Marion, 404 U.S. at 320); MacDonald, 456 U.S. at 7 (confirming that Sixth

Amendment right to speedy trial does not apply to pre-arrest delay).

           Patel complained only about the delay between the issuance of the arrest warrant and her

actual arrest two years later. But a pre-arrest delay does not implicate the right to a speedy trial. 1

MacDonald, 456 U.S. at 7; Lavasco, 431 U.S. at 788–89; Marion, 404 U.S. at 320.

Consequently, we conclude that the trial court erred by granting Patel’s motion on this basis. We

resolve the State’s issue in its favor. Based on our disposition of this issue, we do not need to

reach the State’s remaining issue.

                                                              CONCLUSION

           We reverse the trial court’s order granting Patel’s motion and dismissing the prosecution

and remand this cause to the court for further proceedings consistent with this opinion.




                                                                           /Elizabeth Lang-Miers/
                                                                           ELIZABETH LANG-MIERS
                                                                           JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

131177F.U05




     1
       Even under an analysis of the Barker v. Wingo speedy trial factors, a pre-arrest delay does not count against the State. See Dillingham v.
United States, 423 U.S. 64, 64-65 (1975); Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994) (speedy trial clock begins to run when
defendant becomes accused by arrest or formal charge); State v. Horner, 936 S.W.2d 668, 670–71 (Tex. App.—Dallas 1996, pet. ref’d) (same).



                                                                     –4–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

THE STATE OF TEXAS, Appellant                        On Appeal from the County Criminal Court
                                                     No. 6, Dallas County, Texas
No. 05-13-01177-CR         V.                        Trial Court Cause No. MA11-70988-G.
                                                     Opinion delivered by Justice Lang-Miers,
LATABEN KANCHANLAL PATEL,                            Justices Myers and Lewis participating.
Appellee

       Based on the Court’s opinion of this date, the order of the trial court granting Appellee
Lataben Kanchanlal Patel’s motion to set aside the information and dismissing the prosecution is
REVERSED and the cause is REMANDED for further proceedings consistent with this
opinion.


Judgment entered this 7th day of July, 2014.




                                               –5–
