REVERSE and REMAND and Opinion Filed April 17, 2020




                                    SIn The
                               Court of Appeals
                        Fifth District of Texas at Dallas

                                No. 05-18-01391-CR

                        THE STATE OF TEXAS, Page
                                  V.
                      THOMAS HUGHES PAGE, Appellee

               On Appeal from the County Criminal Court No. 1
                            Dallas County, Texas
                    Trial Court Cause No. MA1851150A

                         MEMORANDUM OPINION
                    Before Justices Myers, Osborne, and Nowell
                            Opinion by Justice Osborne
      The State of Texas appeals the trial court’s order granting Thomas Hughes

Page’s motion to dismiss the information against him for violation of his right to a

speedy trial. In two issues, the State contends the trial court erred because (1) an

eight-month delay between arrest and the speedy trial motion is not a presumptively

prejudicial delay and (2) the trial court misapplied the test for determining a speedy

trial violation. We reverse the trial court’s order and remand for further proceedings.
                              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. amends. VI1 and

XIV; see also Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967) (identifying

the right to a speedy trial as fundamental and holding that it is applicable to the states

through the Due Process Clause of the Fourteenth Amendment); McKinney v. State,

491 S.W.2d 404, 407 (Tex. Crim. App. 1973) (recognizing that the Sixth

Amendment’s guarantee of an accused’s right to a speedy trial is imposed on the

states by the due process clause of the Fourteenth Amendment). This right protects

a defendant against unjustified and prejudicial pretrial delay. Doggett v. United

States, 505 U.S. 647, 651-52, 658 (1992); see also Duran v. State, No. 05-15-00171-

CR, 2016 WL 3144066, at *2 (Tex. App.—Dallas May 31, 2016, pet. ref’d) (mem.

op., not designated for publication).

        The United States Supreme Court established a balancing test to be used, on

an “ad hoc” basis, in analyzing a speedy trial complaint. Barker v. Wingo, 407 U.S.

514, 530–32 (1972). In applying this test, we must consider four factors: the length

of delay, the reasons for delay, to what extent the defendant asserted his right to a


        1
          The Sixth Amendment to the United States Constitution provides in relevant part that “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. CONST. amend.
VI. The Texas Constitution also guarantees the accused in all criminal prosecutions the right to a speedy
and public trial. TEX. CONST. art. I, § 10. While this right exists independently of the federal guarantee,
Texas courts analyze claims of a denial of the state speedy trial right under the same factors as do federal
courts. Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008). In his motions, Page did not cite to
either constitution but relied on both federal and Texas case law.

                                                   –2–
speedy trial, and any prejudice suffered by the defendant. Id.; Hopper v. State, 520

S.W.3d 915, 923-24 (Tex. Crim. App. 2017). The State must justify the length of the

delay, but the defendant must prove he asserted his right to a speedy trial and was

prejudiced by the delay. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App.

2008).

         Before a court engages in an analysis of each Barker factor, the accused must

first make a showing that the interval between accusation, i.e., either his arrest or the

date on which he was charged, and trial has crossed the threshold dividing ordinary

delay from presumptively prejudicial delay. Doggett, 505 U.S. 647, 652 n. 1;

Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014). “Presumptive

prejudice” marks the point at which courts deem the delay unreasonable enough to

trigger further inquiry. Doggett, 505 U.S. at 652 n. 1; Gonzales, 435 S.W.3d at 808.

                                           Background

         On January 5, 2018, Page was arrested for a second offense of driving while

intoxicated, hereinafter DWI, a Class A misdemeanor.2 Page was released on bond

that same day. On February 28, 2018, Page was formally charged by information

and complaint. On March 6, 2018, counsel for Page entered a written order of




   2
       See TEX. PENAL CODE ANN. §§ 49.04(a); 49.09(a).


                                                –3–
appearance and requested discovery pursuant to TEX. CODE CRIM. PROC. ANN. art.

39.14.3

        Notice of a first trial setting, for September 11, 2018, was given on July 30,

2018. The notice provides that “[d]efendant’s attorney may make this appearance.”

        On August 13, 2018, counsel for Page filed a motion for speedy trial. In that

motion, Page prayed that “he be granted a speedy trial on said charge or that said

information be dismissed and that the Defendant be released from restraint.” The

motion further alleged that Page was “being prejudiced by the State’s delay in

bringing this case to trial.”

        On September 6, 2018, counsel for Page filed a motion to dismiss for violation

of Page’s right to a speedy trial. On September 10, 2018, Page’s attorney requested,

and the State agreed, to reset the case to October 19, 2018, for purposes of a pre-trial

hearing on Page’s motion to dismiss.

        A hearing was held on Page’s motion on October 19, 2018. At that hearing,

Page testified that he and his brother were engaged in a private equity investments

business with a focus on beverages. His role in the business was to try to raise money

for the business and also to sell the business. As a condition of his bond, he had to

put an interlock device on his car. He testified that the interlock device interfered


    3
      Counsel for Page asked for the State to “promptly disclose the existence of the document, item or
information to the defendant, his attorney of record, and the court.” Counsel further asked that the State
“electronically record or otherwise document any document, item, or other information provided pursuant
hereto, setting forth each document, item, or other information and the date and time same was provided to
Defendant’s attorney of record.”
                                                  –4–
with his business; he had to blow into the machine over 600 times a month, the

machine would beep when he was on the telephone with clients, and he could not

valet park his vehicle when he met with clients at a hotel or restaurant. He often had

to use Uber or have someone drive him which he did not feel showed “good form”

in front of business associates. He testified that the interlock device affected his

ability to perform his occupation as it interfered with his ability to raise capital and

sell the business; this was very stressful. He also testified that “it affects my income

if I’m not able to perform my job function.”

      Additionally, Page was divorced but shared custody of his five-year-old son

with his ex-wife. The interlock device caused him anxiety because, as he explained,

he was “not able to drive my child and his friends and classmates to any of their

activities for fear that one of them will tell their parents and I’ll be judged as not

being able to perform my parental duties properly.”

      Defense counsel argued that his motion should be granted on grounds that (1)

the delay from the date of Page’s arrest to the first trial setting was sufficient to

trigger a presumptive delay, (2) the State “in the face of a demand for a speedy trial”

did nothing, (3) Page was not responsible for the delay, and (4) Page suffered both

harm and prejudice because “he’s subjected to anxiety from the strain of his liberty

on the bail bond, and he’s unable to practice his profession during a nine and one-

half month delay after the arrest.”



                                          –5–
        The State did not present any independent evidence nor did it challenge Page’s

testimony regarding his anxiety and concerns. While the State cross-examined Page,

that cross-examination merely re-iterated Page’s testimony that he was embarrassed

to drive his child’s friends because he thought other parents would judge him, he

could not valet park his vehicle because of the interlock, and that he was aware that

he was charged with a second offense of DWI. The State, did, however, argue to the

trial court that the reason for the delay should not be charged to the State because

the State did not control the trial court settings. The State also filed a written response

to Page’s motion urging that it be denied.4

        After considering the motion for a few days, and hearing further arguments

from both the defense and prosecution, the trial court granted Page’s motion to

dismiss on October 25, 2018. In making its ruling, the trial court said as follows:

        I do think that going down and checking all of the boxes that Barker
        requires in these analyses they all favor the Defense, as far as I can tell.
        I’ve gone through everyone of them carefully many times and since
        they all do favor one side or the other, there is no use in doing the
        balancing test that Barker also requires if that had been necessary. So I
        don’t think I have much choice but to grant the Defense’s motion.

        The trial court subsequently made written findings of fact and conclusions of

law in which it applied the four Barker factors, though it did not conduct a balancing




    4
      The copy of the motion that appears in the clerk’s record filed with this Court is file stamped
November 14, 2018. The place on the motion for a date on the certificate of service is blank. However, the
record is clear that the State’s response was made available to both the trial court judge and to Page’s
counsel prior to the trial court hearing argument on the motion and making its ruling.
                                                  –6–
test of those factors. The trial court concluded that the facts of the case met the

Barker requirements for dismissal due to lack of a speedy trial.

      The State appealed the trial court’s ruling to this Court.

                                Standard of Review

      We review a trial court’s ruling on a motion to dismiss based on a speedy trial

claim using a bifurcated standard of review. Gonzales, 435 S.W.3d at 808. We give

almost complete deference to a trial court’s historical findings of fact that are

supported by the record. Id. at 808–09; State v. Thomas, 453 S.W.3d 1, 3 (Tex.

App.—Dallas 2014, no pet.). Further, we view all of the evidence in favor of the trial

court’s ultimate ruling. Cantu, 253 S.W.3d at 282.

      We review de novo a trial court’s determination of whether there was

sufficient presumptive prejudice to proceed to a Barker analysis. Gonzales, 435

S.W.3d at 808–09. The balancing test applied under Barker is also a purely legal

question which we review de novo. Id.; Cantu, 253 S.W.3d at 282.

                         Presumptively Prejudicial Delay

      As noted above, before a speedy trial analysis is triggered, the accused must

first make a showing of presumptively prejudicial delay. 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.” Barker 407 U.S. at 530. Unless the delay is

presumptively prejudicial, courts need not consider the other three factors. Id.



                                         –7–
      There is no set or defined period of time that has been held to be a per

se violation of a defendant’s right to a speedy trial under the Sixth

Amendment. Barker, 407 U.S. at 529–30; Cantu, 253 S.W.3d at 281. Rather, alleged

violations are considered on a case-by-case basis and each case is considered on its

own merits. Barker, 407 U.S. at 529–30; Knox v. State, 934 S.W.2d 678, 681 (Tex.

Crim. App. 1996). The length of delay that will necessitate such an inquiry is

dependent upon the peculiar circumstances of the case. Barker 407 U.S. at 530-31;

Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002). The delay that can

be tolerated for an ordinary street crime is considerably less than for a serious, more

complex charge. Barker, 401 U.S. at 530-31; Zamorano, 84 S.W.3d at 649. It is only

when the defendant shows that the interval between accusation and trial has crossed

the threshold dividing “ordinary” from “presumptively prejudicial” delay that a court

must then consider the extent to which that delay stretches beyond the bare minimum

needed to trigger judicial examination of the claim. Doggett, 505 U.S. at 652;

Zamorano, 84 S.W.3d at 648-49.

      Here, there is no dispute that Page was arrested on January 5, 2018. Because

Page was arrested, his right to a speedy trial began running from that date, as opposed

to February 28, 2018, the date on which the information was formally filed. See

United States v. Marion, 404 U.S. 307, 321 (1971) (stating that “[i]nvocation of the

speedy trial provision . . . need not await indictment, information, or other formal

charge”); cf. State v. Hudson, No. 01-18-00257-CR, 2019 WL 2621739, at *5 (Tex.
                                         –8–
App.—Houston [1st Dist.] June 27, 2019, pet. ref’d) (mem. op., not designated for

publication) (holding that because the defendant was not placed under arrest on the

date of the offense, his right to a speedy trial did not attach until formal charges were

filed against him).

      Counsel for Page filed his first motion for speedy trial on August 13, 2018;

this was just over seven months following his arrest. A motion to dismiss for

violation of Page’s right to a speedy trial was filed on September 6, 2018, almost

exactly eight months following Page’s arrest. The first trial setting was scheduled

for September 11, 2018, just slightly over eight months from Page’s arrest. A hearing

was held on Page’s motion on October 19, 2018, approximately nine and one-half

months following Page’s arrest.

      At the hearing, Page argued that the delay was over eight months. Page based

his argument on the fact that the delay should be considered from Page’s arrest on

January 5, 2018, until September 11, 2018, which was the first trial setting. Page’s

counsel characterized this as a nine and one-half month delay after arrest.

      The State took the position that there was only a six month delay. The State

relied on the time frame between the date the information was filed, February 28,

2018, and the first trial setting on September 11, 2018. However, in its written

response to Page’s motion, the State conceded that the delay was eight months, but

argued that it was not long enough to trigger a Barker analysis:



                                          –9–
       In this case, roughly 45 days had passed before this case was charged
       by information, and notice of court date was sent 6 months after the
       initial arrest, and the first court setting was 8 months after the initial
       arrest. This passage of almost 8 months DOES NOT trigger a Barker
       inquiry.

       The trial court stated that it thought Page presented a “situation that there’s

been a prima facie showing.” In its findings of fact and conclusions of law, the trial

court concluded as follows:

       A pretrial delay of eight months is presumptively prejudicial to the
       defendant as a matter of law. Doggett v. United States, 505 U.S. 647,
       652 n.1 (1992); Pierce v. State, 921 S.W.2d 291, 294 (Tex. App.—
       Corpus Christi 1996, no pet.) The eight-month delay in this case
       therefore triggers an analysis under Barker v. Wingo, 407 U.S. 514
       (1972), regardless of the reasons for the delay.

(emphasis added).

       In its pleadings to this Court, the State admits that “eight months lapsed

between . . . (Page’s) . . . arrest and his initial setting.” The State argues that an eight

month period between arrest and the speedy trial motion is not presumptively

prejudicial delay. The State relies on Doggett, which observed that delay

“approaching one year” is generally held to be presumptively prejudicial, 505 U.S.

at 652 n.1, as well as some Texas cases which also state that one year is generally

considered to be the delay essential to trigger a Barker analysis. See Balderas v.

State, 517 S.W.3d 756, 768 (Tex. Crim. App. 2016) (stating that, generally, courts

deem delay approaching one year to be “unreasonable enough to trigger the Barker

enquiry”); Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003) (stating that,

                                           –10–
in general, a delay approaching one year is sufficient to trigger a speedy trial

inquiry); Thomas, 453 S.W.3d at 4 (same). The State urges this Court to follow the

“one year rule” and hold that presumptive prejudice was not established.

      The time frame in which a speedy trial analysis is triggered is not as rigid as

the State would have this Court hold. As noted above, this is analyzed on an “ad

hoc,” case-by-case basis; there is no constitutional basis for holding that an

accused’s speedy trial right can be “quantified into a specified number of days or

months.” Haas v. State, 498 S.W.2d 206, 211 (Tex. Crim. App. 1973). Multiple

Texas cases have recognized that a speedy trial analysis can be triggered by a delay

of less than one year, but generally more than eight months. See, e.g., Knox, 934

S.W.2d at 681 (relying on 2 LaFave & Israel, Criminal Procedure Sec. 18.2(b)

(1984) for the proposition that courts generally hold that any delay of eight months

or longer is presumptively unreasonable and triggers speedy trial analysis and

assumed that a ten month delay was sufficient to trigger a speedy trial analysis under

the circumstances of the case); Zamorano, 84 S.W.3d at 656 (Keller, P. J.,

dissenting) (stating that a delay of eight months to a year is generally considered the

minimum amount of time to trigger a speedy trial analysis); Russell v. State, 90

S.W.3d 865, 872 (Tex. App.—San Antonio 2002, pet. ref’d) (recognizing that

generally a delay of eight months or longer is considered presumptively prejudicial

for purposes of triggering a speedy trial analysis); Schenekl v. State, 996 S.W.2d

305, 312 (Tex. App.—Fort Worth 1999), aff’d, 30 S.W.3d 412 (Tex. Crim. App.
                                         –11–
2000) (recognizing that delays exceeding eight months are generally considered

presumptively unreasonable and sufficient to trigger a speedy trial analysis); State

v. Rangel, 980 S.W.2d 840, 843 (Tex. App.—San Antonio 1998, no pet.)

(recognizing that a delay beyond eight months to be presumptively prejudicial);

Pierce v. State, 921 S.W.2d 291, 294 (Tex. App.—Corpus Christi 1996, no pet.)

(stating that most delays of eight months or longer are considered presumptively

unreasonable and prejudicial); Stewart v. State, No. 05-04-01718-CR, 2005 WL

1607639, at *2 (Tex. App.—Dallas July 11, 2005, no pet.) (not designated for

publication) (holding that a delay between arrest and the assertion of a speedy trial

violation of “approximately nine months” is presumptively prejudicial); but see

Tasby v. State, 111 S.W.3d 178, 183 (Tex. App.—Eastland 2003, no pet.) (holding

that, under the facts of the case, an interval of eight and one-half months from arrest

to trial did not cross the threshold of being unreasonable enough to warrant a Barker

inquiry).

      Further, in Daniels v. State, No. 04-18-00474-CR, 2019 WL 1139553, at *3

(Tex. App.—San Antonio Mar. 13, 2019, no pet.) (mem. op., not designated for

publication), the State conceded that a delay of “slightly more than eight months”

was presumptively prejudicial so as to trigger the Barker analysis. As our sister

appellate court in San Antonio said: “[b]ecause a little more than eight months

passed between the time of arrest and the date the (speedy trial) motion was heard,

the delay was beyond the minimum needed to trigger the Barker inquiry.” Id.
                                         –12–
      We do not take issue with the trial court’s recognition that the eight month

delay was presumptively prejudicial. We do, however, disagree with the trial court

that an eight month delay is presumptively prejudicial as a matter of law. The length

of delay, for purposes of evaluating when a Barker analysis is triggered, must be

factored on a case-by-case basis without the imposition of rigid time limitations.

      Nevertheless, for purposes of this opinion, we will assume that the delay in

this case is sufficient to have triggered a Barker analysis.

                                   Barker Analysis

Length of Delay

      Once a defendant has triggered a speedy trial analysis, the trial court must

consider the extent to which the delay stretches beyond the bare minimum needed

to trigger judicial examination of the claim. Doggett, 505 U.S. at 652; Barker, 407

U.S. at 533–34; Gonzales, 435 S.W.3d at 809. The presumption that pretrial delay

has prejudiced the defendant intensifies over time; the longer the delay, the more a

defendant’s prejudice is compounded. Doggett, 505 U.S. at 652; Gonzales, 435

S.W.3d at 809. Consequently, 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. See, e.g., Balderas, 517

S.W.3d at 768 (a delay of more than eight years in a capital felony weighs heavily

in favor of finding a violation of the defendant’s speedy-trial right); Zamorano, 84



                                         –13–
S.W.3d at 648–49 (a delay of two years and ten months, in a “plain-vanilla DWI

case” was sufficient to trigger a Barker analysis).

      There is no dispute in this case as to the timeline of events, all of which are

correctly reflected in the trial court’s findings of fact:

      January 5, 2018: Page arrested; his right to a speedy trial began running;

      February 25, 2018: information and complaint filed;

      July 30, 2018: Notice of trial setting for September 11, 2018;

      August 13, 2018: Page filed motion for speedy trial or dismissal;

      September 6, 2018: Page filed motion to dismiss;

      September 10, 2018: Page requested a reset of the case;

      September 11, 2018: first trial setting (not held);

      October 19, 2018: Pre-trial hearing on Page’s motion to dismiss;

      October 25, 2018: Second hearing and dismissal ordered.

      No facts were adduced at either hearing to indicate the complexity of this case

beyond the fact that the case was a misdemeanor second offense DWI. As a result,

even though the delay of eight months may have been sufficient to trigger a Barker

analysis, this time period is “hardly the overwhelming amount of time that courts

have found to weigh heavily against the government.” Zamorano, 84 S.W.3d at 656

(Keller, P. J., dissenting); Daniels, 2019 WL 1139553, at *3. An eight month delay

is not an extraordinary delay, but just at or just past the minimum needed to trigger



                                           –14–
a Barker analysis. While we conclude that this factor weighs against the State, it

does so only slightly.

Reason for Delay

      With regard to the second Barker factor, the reason for the delay, the State has

the initial burden to justify a delay. Barker, 407 U.S. at 531; Emery v. State, 881

S.W.2d 702, 708 (Tex. Crim. App. 1994). A defendant has no duty to bring himself

to trial. Barker, 407 U.S. at 527; Zamorano, 84 S.W.3d at 651.

      When assessing the reasons provided by the State for the delay, a court must

allocate different weights to different reasons. Gonzales, 435 S.W.3d at 809;

Zamorano, 84 S.W.3d at 649. The reason for the delay, if any, determines its weight.

See Balderas, 517 S.W.3d at 768; Zamorano, 84 S.W.3d at 649. Deliberate delays

by the State, intended to “hamper the defense,” should be weighed heavily against

the State. Balderas, 517 S.W.3d at 768. Neutral reasons for the delay, such as

negligence or overcrowded courts, are also weighed against the State, though not as

heavily. Balderas, 517 S.W.3d at 768. Valid reasons for the delay, such as a missing

witness or engaging in plea negotiations, are justified and not weighed against the

State. State v. Munoz, 991 S.W.2d 818, 824 (Tex. Crim. App. 1999). Delays

attributable to the defendant are not counted against the State. Id. The time covered

by agreed resets is also to be excluded from speedy trial consideration. Lopez v.

State, 478 S.W.3d 936, 942 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). If

the State fails to offer a reason for the delay, this weighs against the State, but not
                                         –15–
heavily, because when the record is silent as to the reason for the delay, we can

presume neither willful conduct by the State nor a valid reason for the delay.

Balderas, 517 S.W.3d at 768; Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App.

2003).

        Here, the State offered no reason for the delay. At the original hearing, the

State simply argued: “The reason for the delay does not weigh against the State

because we don’t control the settings.”5 The State gave no reason for the delay in its

written response to Page’s motion to dismiss. At the second hearing, the State

admitted it had no reason to offer for the delay but made its willingness to go to trial

known to the trial court:

                [BY THE PROSECUTOR] We can set the case for trial. The
        State is always ready for trial. We could set it for a date. We could set
        it right now if we need to. We’re not avoiding the defendant’s trial. So,
        again, while we have no reason to say why the court case was delayed
        from getting the actual court setting, the letter for the first setting was
        sent out in July which was five months after the defendant was actually
        formerly charged. So we say . . . That’s less than eight months, but I
        understand if the Court already made a ruling. So I’m (sic) wasn’t aware
        of that the speedy trial was already triggered. So I understand the Court
        already made that ruling and I wasn’t aware of that. But, Judge, we ask
        that the speedy trial motion be denied. And instead, you know, if there
        is a remedy, we could set the case for trial because we’re ready for that.

(emphasis added).




    5
      In oral argument before this Court, the State suggested that the case was simply not set by the court
coordinator prior to the July notice. The State admitted that there was nothing in the record to establish how
cases are set in the trial court or when and how notice is given to the parties.
                                                    –16–
      The trial court responded to the State’s argument, in part, by saying “Well, I

understand that and, unfortunately, I think we’re past that point to be able to do that

. . .” In its written findings of fact and conclusions of law, the trial court concluded

as follows:

      The second factor, the reason for the delay, also weighs in favor of the
      defendant. As conceded in State’s Motion to Deny Defendant’s Motion
      for Speedy Trial, the State has “no excuse as to why this case was not
      scheduled sooner.” The State offered no evidence at the hearing to
      excuse any delay. As a matter of law, the State has the duty to bring the
      case to trial. Barker, 407 U.S. at 527. The State is responsible for the
      delay between the date of the arrest (January 5, 2018) until October 19,
      2018.

      While the State’s lack of an explanation as to why the case was not set for trial

sooner must be held against it, we perceive no deliberate delay by the State and the

trial court found none. A lack of an explanation is not as egregious as purposeful

delaying tactics and alone is insufficient to show deprivation of the speedy trial right.

See Barker, 407 U.S. at 521; Santallan v. State, 922 S.W.2d 306, 308 (Tex. App.—

Fort Worth 1996, pet. ref’d) (stating that negligence on the part of the State as well

as overcrowding at the trial court cannot be considered sufficient in and of itself for

a finding of a deprivation of the right to a speedy trial); McCauley v. State, No. 05-

95-01246-CR, 1998 WL 467111, at *4 (Tex. App.—Dallas Aug. 12, 1998, no pet.)

(not designated for publication) (stating that negligence by the State is not as bad as

purposeful delay tactics and is alone insufficient to show deprivation of the speedy

trial right). This is particularly true when considered in light of the State’s express

                                          –17–
willingness to set the case for trial immediately. Therefore, we conclude this factor

weighs only slightly against the State.

Assertion of the Right

      The defendant bears the responsibility to assert his right to a speedy trial.

Cantu, 253 S.W.3d at 282. The defendant’s assertion of his right or his failure to

assert his right is entitled to strong evidentiary weight in determining whether the

defendant is being deprived of that right. Balderas, 517 S.W.3d at 771. The point at

which the defendant asserts his right is also important because it may reflect the

seriousness of the personal prejudice he is experiencing. Cantu, 253 S.W.3d at 284;

State v. Gilliland, No. 05-16-00547-CR, 2017 WL 3276004, at *3 (Tex. App.—

Dallas Aug. 1, 2017, pet. ref’d) (mem. op., not designated for publication). When

evaluating a defendant’s assertion of the right, the critical question is whether the

defendant asserted his right in a manner that indicates a genuine desire for a speedy

trial, rather than a desire for dismissal on speedy trial grounds. See Barker; 407 U.S.

at 534–36; Balderas, 517 S.W.3d at 771. The failure to assert the right until trial is

imminent strongly indicates that the defendant does not really want a speedy trial

and that he was not prejudiced by the lack of one. Dragoo, 96 S.W.3d at 314. A

motion that requests a dismissal rather than a speedy trial weakens a speedy trial

claim because it shows a desire to have no trial instead of a speedy one. Balderas,

517 S.W.3d at 771; Zamorano, 84 S.W.3d at 651 n. 40; State v. Jones, 168 S.W.3d

339, 348 (Tex. App. —Dallas 2005, pet. ref’d).
                                          –18–
      On August 13, 2018, just over eight months after his arrest and one month

before the first trial setting, counsel for Page filed a “Motion for Speedy Trial”

asking that he “be granted a speedy trial on said charge or that said information be

dismissed and that the Defendant be released from restraint.” (emphasis added). The

motion further alleged that Page was “being prejudiced by the State’s delay in

bringing this case to trial,” but no specific instances of prejudice were alleged. The

motion contained a signed certificate of service which averred that the motion “has

been delivered via electronic filing to the Dallas County District Attorney’s Office

on this 13th day of August, 2018.” There was no sample order attached to the motion

for the judge to sign. Nor does the record contain any indication that the motion was

presented to the trial court or that Page sought a hearing on this motion. Cook v.

State, 741 S.W.2d 928, 940 (Tex. Crim. App. 1987), vacated on other grounds, 488

U.S. 807 (1988) (noting that beyond two motions for speedy trial filed with the

district clerk, there was no evidence that the defendant asserted his right to a speedy

trial by requesting hearings to present evidence on the matter). In fact, the record is

silent as to what action, if any, was taken between the time Page filed his first and

second motions to dismiss.

      On September 6, 2018, five days before the first scheduled trial setting,

counsel for Page filed a “Motion to Dismiss for Violation of Defendant’s Right to a

Speedy Trial.” That motion averred that Page had suffered prejudice as follows:

“The Defendant has been required to have an interlock on his car as a condition of
                                         –19–
his bond. The Defendant has been required to go to his interlock provider monthly

to have his unit calibrated, which requires him to miss work.” In this motion, Page

did not reiterate his request for a speedy trial at all but sought only a dismissal. The

motion contained an order form for the trial court.

      At the hearing on this motion, Page made it clear that the court was hearing

his motion for dismissal, not his motion for a speedy trial. Page put the blame for

not setting the case for trial on the State:

            [BY DEFENSE COUNSEL] I didn’t hear any phone calls, any
      emails from the State, and they were served a copy of this motion. I
      didn’t get any response saying come on down here and get you
      something. We’ll give you a trial. None of that happened or else they
      would have put that into evidence. So that didn’t happen. I think the
      Court can assume based on the evidence that the State in the face of a
      demand for a speedy trial did nothing.

                                         *

             It’s not incumbent upon us to get a setting.

                                         *

             This is the State’s prosecution. It is their job to get this case set.
      It’s their job to keep up with their cases.

The State responded as follows: “As far as the assertion of right, the Defense asserted

his right to a dismissal before the first setting.”

      The trial court recessed the hearing for a few days, reconvening on October

25, 2018. At that hearing, Page’s counsel argued, in response to the State’s written




                                             –20–
allegations that he had filed “a vague and boiler plate” motion, that his first motion

was a valid request for a speedy trial:

             [BY DEFENSE COUNSEL] [T]here was not a Vague Motion to
      Dismiss. There was, in fact, a very concise motion for a speedy trial as
      opposed to a Motion to Dismiss, which as the Court is well aware
      there’s a tremendous amount of significance said under the law and
      there is a copy of it introduced into evidence as a motion, a demand for
      a speedy trial, which was actually filed approximately a month even
      before the first setting. The documents I introduced into evidence
      showed . . . (the prosecutor) . . . was served that motion on the date that
      it was filed. When he opened it, I don’t know, but it was not a motion
      to dismiss it was an actual motion for a speedy trial.

                                           *

            There was a Motion for a Speedy Trial, an actual motion cogent
      for asking for a speedy trial, not a dismissal that was filed a month
      before the first setting. The State did nothing.

      As noted above, the State argued that the case could be set for trial at any time

and that the State was “not avoiding the defendant’s trial.”

      In its written findings of fact and conclusions of law, the trial court concluded

as follows: “The third factor, the assertion of the right, weighs in favor of the

defendant. The defendant asserted his right to a speedy trial in a separate motion

before he filed his motion requesting solely the dismissal of the information.” While

the trial court’s conclusion accurately reflects the order in which Page requested

relief, the trial court’s conclusions do not analyze Page’s assertion of the right to a

speedy trial and the steps he took, if any, to obtain action on that motion.




                                          –21–
      Our analysis of these motions, and the manner in which Page pursued relief,

strongly suggests to us that Page never wanted a trial at all and that his sole objective

was a dismissal of the charges against him.

      Page’s first motion was filed roughly a month before the first trial setting, just

barely over eight months after his arrest. This motion requested first a speedy trial

but also, in the alternative, a dismissal. No action was requested or taken on this

motion. Page’s second motion was filed on September 6, 2018, just five days before

the first trial setting in the case, on September 11, 2018; that motion requested

nothing but a dismissal. Nothing in the record indicates the case could not have gone

to trial as scheduled on September 11, 2018, or that that the case could not have gone

to trial before October 19, 2018, the date of the actual hearing on Page’s motion to

dismiss. Page did not agree to a trial date even after the State expressed its

willingness to go to trial as soon as possible at the October 25, 2018, hearing.

      We do not perceive a genuine desire on Page’s part to have a trial. Rather, it

is clear, both from the timing and content of Page’s pleadings as well as the

arguments made at the hearings, that Page’s true objective was a dismissal of the

charges against him as opposed to a trial. This factor weighs against Page.

Prejudice to the Defendant

      The last Barker factor is prejudice to the defendant. Barker, 407 U.S. at 532-

33; Munoz, 991 S.W.2d at 826. The prejudice factor is assessed in light of the

interests the right to a speedy trial is designed to protect: (1) preventing oppressive
                                          –22–
pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3)

limiting the possibility that the defense will be impaired. Hopper, 520 S.W.3d at

924. The third interest, impairment of the defense, is the most serious because it

“skews” the fairness of the entire system. Munoz, 991 S.W.2d at 826; see also Jones,

168 S.W.3d at 349. Affirmative proof of particularized prejudice is not essential to

every speedy trial claim because “excessive delay presumptively compromises the

reliability of a trial in ways that neither party can prove or, for that matter, identify.”

Hopper, 520 S.W.3d at 924. If, however, an accused can show prejudice, the burden

shifts to the State to prove that the accused suffered no serious prejudice beyond that

which ensued from ordinary and inevitable delay. Munoz, 991 S.W.2d 818.

       Because Page was on bond pending trial, he was not subjected to any

incarceration, much less oppressive pretrial incarceration. Page neither alleged, nor

attempted to prove, that his defense was impaired by the delay. Hence, Page could

only make a claim for a violation of his right to a speedy trial due to his anxiety and

concern.

      While general pre-trial anxiety and concern is considered relevant to the

prejudice factor, that alone will not suffice to prove prejudice, especially when it is

no greater anxiety or concern than the level normally associated with a criminal

charge or investigation. Cantu, 253 S.W.3d at 286. Any anxiety or concern cited by

the defendant must be unusual, as some anxiety and concern is inevitable, regardless

of any delay. See Shaw, 117 S.W.3d at 890 (concluding that the prejudice factor
                                           –23–
weighed against the defendant where his only demonstrated anxiety, “mental

anguish,” did not rise above the level normally associated with the charged offense

of aggravated sexual assault); cf. Zamorano, 84 S.W.3d at 653-54 (concluding that

the prejudice factor weighed in favor of the defendant where the defendant, a day

laborer, had missed at least eleven days of work due to court appearances, had lost

wages, and had checked in weekly with his bail bondsman late at night after work

every Tuesday for four years while his case was reset multiple times).

      The reasons offered by Page to support his allegations of prejudice all centered

on the impact that the interlock device on his vehicle had on his lifestyle. Page

testified that the interlock device caused him anxiety as a parent to his five-year-old

son because he was “not able to drive my child and his friends and classmates to any

of their activities for fear that one of them will tell their parents and I’ll be judged as

not being able to perform my parental duties properly.” Page also testified that the

interlock device caused him anxiety because he could not valet park his vehicle when

meeting clients and business associates at a hotel or restaurant. He often had to use

Uber or have someone drive him which he did not feel showed “good form” in front

of business associates. The device would “beep” when he was on the telephone in

his vehicle and he would have to make up an excuse for that or hang up the phone.

He testified that the interlock device affected his ability to perform his occupation

as it interfered with his ability to raise capital and sell the business; this was very

stressful. As he testified “it’s a harm in presentation with the people that I do
                                           –24–
business with, and it affects my income if I’m not able to perform my job function.”

He did not, however, testify as to any particular instance where he suffered a loss of

income or a business opportunity that resulted from the interference and

inconvenience caused by the interlock device.

      In its written findings of fact and conclusions of law, the trial court concluded

that Page had suffered prejudice as follows:

      The fourth factor, the prejudice to the defendant, also weighs in the
      defendant’s favor. The defendant showed that he was prejudiced by his
      interlock bond condition and by pre-trial anxiety. Had he not been
      restrained by the interlock bond condition, he could have valeted his
      car, driven clients to lunch, and driven his five-year-old’s friends
      around without fear of judgment or embarrassment. The Defendant has
      met his burden to show that he has suffered some concern or anxiety as
      a result of his pretrial delay. See Zamorano v. State, 84 S.W.3d 643,
      653-54 (Tex. Crim. App. 2002). Because the defendant met his burden
      under this factor, it weighs in his favor.

      The trial court specifically found that, during the time Page was on bond, he

“has suffered much anxiety and has altered his behavior to avoid embarrassment

associated with his interlock” and that Page had “altered his conduct and his personal

life” by not valet parking his vehicle, not driving clients to lunch, and avoiding

driving his five-year-old’s friends.

      It was established that this was Page’s second arrest for DWI. The ignition

interlock device about which Page complained is required by statute for DWI repeat

offenders. See TEX. CODE CRIM. PROC. ANN. art. 17.441. As such, the interlock

device was merely a condition of Page’s bond. Hence, any anxiety, inconvenience,

                                        –25–
or embarrassment caused by that device is not beyond that which would normally

be experienced by any defendant on bond for a second DWI offense.

      The trial court also found that the interlock device “has affected the

defendant’s ability to raise capital for his business and perform his job duties.” The

record, however, does not support the inference that Page’s work life was impacted

to any abnormal or burdensome degree. It merely shows that Page is a businessman

who feels like he has lost unspecified income or opportunities because he either had

a driver take him to business lunches or did not feel like he could valet park his

vehicle for several months. This does not rise to the level of prejudice contemplated

by Barker.

      We conclude Page presented no evidence that any trial delay caused him

anxiety or concern beyond what would ordinarily result from any person being

arrested and charged with a second DWI offense. The record shows only that Page

was embarrassed and inconvenienced by the interlock device which was a condition

of his bond; the installation and operation of that device was not delaying Page’s

trial. Page has failed to establish a level of prejudice sufficient to meet the fourth

Barker factor. This factor weighs against Page.

                       Balancing the Four Barker Factors

      In its written findings of fact and conclusions of law, the trial court concluded

as follows: “Each of the four Barker factors weighs in the defendant’s favor, so there



                                        –26–
is no need to balance them.” The trial court conducted no balancing of the Barker

factors.

      That is an incorrect application of Barker. The four Barker factors are related

and must be considered together along with any other relevant circumstances. Cantu,

253 S.W.3d at 281; Gilliland, 2017 WL 3276004, at *8. Indeed, the last step in a

proper Barker analysis is to balance the four factors. Gilliland, 2017 WL 3276004,

at *8. Because dismissal of the charges is a radical remedy, we must apply the

balancing test with common sense and sensitivity to ensure that charges are

dismissed only when evidence shows that a defendant’s actual and asserted interest

in a speedy trial has been infringed. Balderas, 517 S.W.3d at 773; Cantu, 253 S.W.3d

at 281; Gilliland, 2017 WL 3276004, at *8. This balancing test is a purely legal

question. Cantu, 253 S.W.3d at 282; Zamorano, 84 S.W.3d at 648 n. 19.

      Of the four factors, we have found that two weigh slightly against the State:

the length of the delay and the reason, or lack thereof, for the delay. The delay in

this case was the minimal amount of time at which a court will consider that a speedy

trial claim has been triggered. While the State offered no reason for the delay, the

State expressed a willingness to proceed to trial as soon as possible. Moreover, the

final month of delay was due to Page’s action by resetting the hearing on his motion

to dismiss. While these factors weigh against the State, they do not weigh heavily in

Page’s favor.



                                        –27–
      The third factor, assertion of the right, weighs against Page. While Page filed

a motion asking for a speedy trial, in that same motion he sought a dismissal as

alternative relief; he also made only a general assertion of prejudice. There is nothing

in the record to suggest that this motion was called to the trial court’s attention or

that Page attempted to set a hearing on the motion. Less than thirty days later he filed

a motion for dismissal. His arguments to the trial court were made in favor of

dismissal and not a speedy trial. From this record we conclude that Page’s true

objective was a dismissal of the charges against him as opposed to a trial.

      The fourth factor, prejudice, also weighs against Page. Page presented no

evidence that any trial delay caused him any anxiety and concern beyond what would

ordinarily result from any person being arrested and charged with a second DWI

offense. While Page was embarrassed and inconvenienced by the interlock device,

that was due to the interlock device being a condition of his bond, not a factor

delaying his trial. On balance, Page cannot overcome the fact that he suffered no

abnormal anxiety or concern and hence no prejudice.

      We conclude that, when balanced, the Barker factors weigh against finding a

speedy trial violation and that the trial court erred in granting Page’s motion to

dismiss. We reverse the trial court’s order granting the motion to dismiss and remand

the case to the trial court for further proceedings.




                                          –28–
                                       Conclusion

      The trial court’s order granting Page’s motion to dismiss is reversed and the

case is remanded to the trial court.


                                            /Leslie Osborne/
                                            LESLIE OSBORNE
                                            JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 47.2(b)
181391F.U05




                                          –29–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 THE STATE OF TEXAS, Appellant                     On Appeal from the County Criminal Court
                                                   No. 1, Dallas County, Texas
 No. 05-18-01391-CR        V.                      Trial Court Cause No. MA1851150A.
                                                   Opinion delivered by Justice Osborne.
 THOMAS HUGHES PAGE, Appellee                      Justices Myers and Nowell participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings consistent with this opinion.


Judgment entered April 17, 2020




                                            –30–
