                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                             NOS. 2-08-004-CR
                                  2-08-005-CR


JOHN ALFRED CHRISTMAS                                       APPELLANT

                                       V.

THE STATE OF TEXAS                                               STATE

                                   ------------

         FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                               I. INTRODUCTION

     Appellant John Alfred Christmas was convicted of possession of a

prohibited weapon and six counts of aggravated assault.   In two points,

Appellant argues that the trial court erred by denying his motion to




     1
         … See Tex. R. App. P. 47.4.
dismiss—claiming violation of both his federal and state right to a speedy trial.2

We will affirm.

                     II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      At the time of the events underlying this case, Jean Gregory lived on a

small parcel of land near Sunset, Texas. Appellant was her live-in boyfriend.

Gregory lived in a double-wide mobile home. She provided room and board to

a couple—Yale Clark II and Jennifer Welsh—and their two children in a single-

wide trailer in exchange for labor and assistance.      On the day in question,

December 13, 2005, two other children were visiting—Clark’s children from a

prior marriage.

      During the early evening of December 13, by all accounts, Appellant and

Clark got into a heated argument while unloading Appellant’s vehicle. Clark and

Welsh attribute the argument to Appellant’s having been intoxicated. Appellant

testified that the argument escalated from his having confronted Clark about

Clark’s having possibly struck one of the children in the face. At this point,

Clark and Welsh gathered the four children into their car and attempted to leave

the premises.




      2
          … See U.S. Const. amend. VI; Tex. Const. art. I, § 10.

                                        2
      There is no dispute that during their attempt to leave, Appellant fired a

handgun at the vehicle, successfully hitting it twice. Clark and Welsh testified

that Appellant had brandished his gun and fired at them before they reached the

gate to exit the property. Appellant testified that he fired several shots at the

vehicle in self-defense because he had been pinned under the gate during his

attempts to prevent Clark and Welsh from leaving with the children—concerned

Clark might harm them.

      Shortly after the vehicle made it to the highway, it broke down. Welsh

ran to a nearby house, called the police, and reported what had occurred. The

next day, Montague County law enforcement executed a search warrant at

Appellant’s and Gregory’s residence. The officers seized a .380 handgun and

a sawed-off shotgun. Appellant was charged with possession of a prohibited

weapon—the shotgun—and with six counts of aggravated assault. Appellant

was arrested the same day the search warrant was executed, December 14,

2005.

      Indictments for these offenses were not returned until June 12, 2006.

During the time between his arrest and indictment, and up until and after

Appellant’s jury trial, Appellant remained in jail.   The trial court appointed

Appellant an attorney on June 27, 2006.        Despite having court appointed

counsel, Appellant filed his own hand written motion to dismiss all charges on

                                       3
July 10, 2006, claiming the State had failed to return indictments within 180

days. 3

      Appellant waived arraignment and entered a written plea of not guilty to

each charge on July 24, 2006.4 On August 16, 2006, the trial court denied

Appellant’s motion to dismiss regarding whether the indictment was brought

timely.   A pretrial hearing was set for September 25, 2006.          Appellant,

announcing not ready on September 25, joined the State in agreeing to reset

the pretrial hearing for November 27, 2006.       Without the aid of his court

appointed attorney, Appellant again filed several pro se motions on October 9,

2007, none of which raised the issue of his speedy trial right. Appellant’s trial

was ultimately set for and began on November 6, 2007. Appellant filed another



      3
       … Although Appellant’s motion does not cite a specific statute, at the
hearing addressing this motion, all parties refer to Texas Code of Criminal
Procedure 32.01. See Tex. Code Crim. Proc. Ann. art. 32.01 (Vernon 2006)
(“When a defendant has been detained in custody . . . the [charges shall be
dismissed] . . . if indictment . . . [is] not presented against such defendant on
or before the last day of the next term of the court which is held after his
commitment or admission to bail or on or before the 180th day after the date
of commitment or admission to bail, whichever date is later.”). The trial court
determined that the indictment had been properly presented against Appellant
“before the last day of the next term of the court.” See id.
      4
        … Although the prohibited weapons charge and the six aggravated
assault charges were filed under separate cause numbers in the trial court, each
of the procedural dates are parallel for both cause numbers, and the trial court,
upon agreement between Appellant and the State, granted a motion of joinder
prior to trial so that both causes would be tried before the same jury.

                                       4
pro se motion to dismiss on November 7, 2007, alleging a denial of his speedy

trial right. The trial court heard this motion on the same date.

      Appellant was the only person to testify at the hearing. The following

colloquy took place between Appellant and his trial counsel:

      [DEFENSE COUNSEL]: And you were arrested for these charges in
      December of 2005?

      [Appellant]:      Yes.

      Q.   And have you been continuously in custody since that time up until
      now?

      A.    Yes.

      Q.   And during that -- you have cause to be filed -- actually, it’s a
      motion prepared by you, asking the Court to dismiss this cause or these
      causes for denial of speedy trial;[5 ] is that correct?

      A.    Yes.

      Q.     During that period of time that this case has been pending, have
      you or do you have any concerns or problems that you think would effect
      [sic] your defense as far as the delay in the trial?

      A.    Yes, of course. Just like the first witness, the trained, paid
      professional couldn’t recall because it was over two years ago. That was
      his statement, Bohannon, that was sitting here before me yesterday.




      5
       … Appellant’s motion for dismissal filed on November 7, 2007, is the
only motion specifically mentioning his speedy trial right. The hearing was
conducted to address this motion. Both of the colloquies duplicated in this
opinion contain the entirety of Appellant’s testimony at this hearing.

                                       5
     Q.   Well, the lapse of time certainly would effect [sic] memory, I would
     suppose. Is that a concern?

     A.    Oh, very much so. And whatever --

     Q.  Let me ask another question. And as far as the delay is concerned,
     memories do change as far as the facts or recollections are concerned?

     A.   Oh, yes. And people move. You can’t get ahold of anybody. After
     two years, you don’t know the addresses, phone numbers.

     Q.   Okay. Is there any particular witness that you had wanted to be
     present here in trial that you were unable to bring to the Court?

     A.   Mr. Rhodes, but I wouldn’t know -- have any idea where he lives
     now.

     Q.   Okay. Can you think of any other difficulty that the delay has
     caused you as far as your defense is concerned?

     A.     It’s been just so long that -- to get everything together. And, like
     I say, memories and, of course, the district attorney has had two years
     with a law library and all of the things he has access to where I have --
     and haven’t been able to read a newspaper.

     Q.   Okay. Well, let me ask it this way: Is there anything else you
     wanted to present to the Court in regard to this motion?

     A.     To -- just the fact that everywhere else in the United States, it is a
     pretty legitimate right that we have for a speedy trial. Every other state
     in the union would consider it a fundamental right.

     Q.    Okay. Is that all?

     A.    Yeah.

     Shortly after, the following colloquy took place during the State’s cross-

examination:

                                       6
      [Prosecutor]:   Mr. Christmas, as far as Mr. Rhodes goes, is this a
      person who was a witness to the events that occurred that evening?

      A.    No. He was a friend of Mr. Clark’s and talking with Mr. Clark had
      information that wasn't in the statement.

      Q.    Okay. Have you attempted to locate Mr. Rhodes through your
      attorney or any other agency? In other words, have you made attempts
      to subpoena him or locate his whereabouts?

      A.    Other than the name, I had no other way of -- I believe I gave my
      attorney the name quite a while back in a letter that was, like, after -- I
      mean, he wasn’t my lawyer until seven months after I was incarcerated
      sometime back. It’s hard to recall. It’s been a long time in the cage.

      Q.    So as far as you know, that’s all you have done to try to locate him
      since. Do you know when he moved?

      A.    I mean, you’ve got to understand, I’ve been two years right across
      the street without a window or a phone or access to --

      Q.    That’s nonresponsive. Do you know when he moved?

      A.    I have no clue.

      Q.    That’s the question.

      A.    I have no way of knowing.

      Q.   Now, the statement you’ve mentioned or these statements that he
      made would be related to you or to someone else?

      A.    He related to me.      He was incarcerated across the street for a
      couple of months.

      After Appellant’s testimony, the trial court took judicial notice of the

clerk’s record for each cause of action. The trial court also took judicial notice



                                        7
that Appellant had been appointed counsel on June 27, 2006, and that

Appellant had agreed to reset the September 25, 2006 pretrial date to

November 27, 2006. The trial court denied Appellant’s motion to dismiss and

the jury trial proceeded.

      Two days later, the jury found Appellant guilty of all counts in both

indictments. The jury assessed punishment at two years’ incarceration for the

weapons charge and for each of counts one and two of the assault charges.

The jury recommenced that these sentences be suspended and that Appellant

be placed on community supervision.              The jury assessed two years’

incarceration   on   each   of the   remaining    four assault counts    without

recommendation.

      Based on the jury’s verdict, the trial court ordered that Appellant serve

two years’ confinement for counts three through six—the aggravated assault

charges—with the sentences to run concurrently. The trial court noted that the

judgment would reflect 695 days credit to Appellant’s sentence on each of

these counts.6 The trial court suspended the sentences for the weapons charge

and for counts one and two of the assault charge and placed Appellant on

community supervision for a total of five years. This appeal followed.



      6
       … The trial court noted that at the time of sentencing, Appellant still had
roughly 35 days remaining on each of his two-year sentences.

                                        8
                                 III. D ISCUSSION

      In two points, Appellant argues that the trial court erred by denying his

motion to dismiss. Citing both the United States and Texas Constitutions,

Appellant specifically complains that his right to a speedy trial was violated.

      A.    The Right to a Speedy Trial

      The Sixth Amendment to the United States Constitution and article 1,

section 10 of the Texas Constitution guarantee an accused the right to a

speedy trial. See U.S. Const. amend. VI; Tex. Const. art. I, § 10; see also

Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002); Orand v.

State, 254 S.W.3d 560, 565 (Tex. App.—Fort Worth 2008, pet. ref’d). Texas

courts analyze claims of a denial of this right, both under the federal and state

constitutions, the same. See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim.

App. 1992). The right attaches once a person becomes an “accused,” that is,

once one is arrested or charged. United States v. Marion, 404 U.S. 307, 321,

92 S. Ct. 455, 461 (1971) (“[I]t is either a formal indictment or information or

else the actual restraints imposed by arrest and holding to answer a criminal

charge that engage the particular protections of the speedy-trial provision of the

Sixth Amendment.”).

      Supreme Court precedent requires state courts to analyze federal

constitutional speedy trial claims “on an ad hoc basis” by weighing and then

                                        9
balancing the four Barker v. Wingo factors: 1) length of the delay, 2) reason for

the delay, 3) assertion of the right, and 4) prejudice to the accused. 407 U.S.

514, 530, 92 S. Ct. 2182, 2192 (1972); State v. Munoz, 991 S.W.2d 818,

821 (Tex. Crim. App. 1999); Orand, 254 S.W.3d at 565. While the State has

the burden of justifying the length of delay, the defendant has the burden of

proving the assertion of the right and showing prejudice. See Barker, 407 U.S.

at 531, 92 S. Ct. at 2193; see also Ex parte McKenzie, 491 S.W.2d 122, 123

(Tex. Crim. App. 1973) (stating that “if an accused made a prima facie showing

of prejudice, the State must carry the obligation of proving that the accused

suffered no serious prejudice beyond that which ensued from the ordinary and

inevitable delay”). The defendant’s burden of proof on the latter two factors

“varies inversely” with the State’s degree of culpability for the delay. Robinson

v. Whitley, 2 F.3d 562, 570 (5th Cir.1993) (citing Doggett v. United States,

505 U.S. 647, 657, 112 S. Ct. 2686, 2695 (1992)). Thus, 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. Cantu v. State, 253 S.W.3d 273, 280–81 (Tex.

Crim. App. 2008).

      The Barker test is triggered by a delay that is unreasonable enough to be

“presumptively prejudicial.” Doggett, 505 U.S. at 652 n.1, 112 S. Ct. at 2693

                                       10
n.1 (1992). There is no set time element that triggers the analysis, but the

court of criminal appeals has held that a delay of four months is not sufficient

while a seventeen-month delay is. Pete v. State, 501 S.W.2d 683, 687 (Tex.

Crim. App. 1973) (“Appellant herein was tried [for rape] approximately four

months after he was bench warranted from the Texas Department of

Corrections. It is our opinion that this short period of time could in no way be

construed as ‘presumptively prejudicial.’“); Phillips v. State, 650 S.W.2d 396,

399 (Tex. Crim. App. 1983) (“Although there is no precise length of delay

which irrefutably constitutes a violation of the right to a speedy trial in all

cases, . . . a seventeen month delay is sufficient to raise the issue.”); see also

Doggett, 505 U.S. at 651, 652 n. 1, 112 S. Ct. at 2693 n.1 (noting that courts

have generally found post-accusation delay “presumptively prejudicial at least

as it approaches one year”). Once the Barker test is triggered, courts must

analyze the speedy trial claim by first weighing the strength of each of the

Barker factors and then balancing their relative weights in light of “the conduct

of both the prosecution and the defendant.” Zamorano, 84 S.W.3d at 648

(quoting Barker, 407 U.S. at 530, 92 S. Ct. at 2192). No one factor is either

a necessary or sufficient condition to the finding of a deprivation of the speedy

trial right. Id. Instead, the four factors are related and must be considered

together along with any other relevant circumstances. Barker, 407 U.S. at

                                       11
530, 92 S. Ct. at 2192. As no factor possesses “talismanic qualities,” courts

must engage “in a difficult and sensitive balancing process” in each individual

case. Zamorano, 84 S.W.3d at 648 (quoting Barker, 407 U.S. at 533, 92 S.

Ct. at 2192).

         Dismissal of the charging instrument with prejudice is mandated only

upon a finding that an accused’s speedy trial right was actually violated. See

Strunk v. United States, 412 U.S. 434, 440, 93 S. Ct. 2260, 2271 (1973).

Because dismissal of the charges is a radical remedy, a wooden application of

the Barker factors would infringe upon the societal interest in trying people

accused of crime, rather than granting them immunization because of legal

error.    Cantu, 253 S.W.3d at 281.      Thus, courts must apply the Barker

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

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

asserted interest in a speedy trial has been infringed. See Barker, 407 U.S. at

534–35, 92 S. Ct. at 2192 (rejecting defendant’s claim of a speedy trial

violation despite a five-year delay when the record strongly indicated that the

defendant did not actually want a speedy trial). The constitutional right is that

of a speedy trial, not dismissal of the charges. Cantu, 253 S.W.3d at 281.

         The amorphous quality of the right also leads to the unsatisfactorily

severe remedy of dismissal of the indictment when the right has been deprived.

                                       12
Id. This is indeed a serious consequence because it means that a defendant

who may be guilty of a serious crime will go free, without having been tried.

Id. Such a remedy is more serious than an exclusionary rule or a reversal for

a new trial, but it is the only possible remedy. Id.

      B.     Standard of Review

      In reviewing the trial court’s ruling on an appellant’s speedy trial claim,

we apply 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.              Review of the individual Barker factors

necessarily involves fact determinations and legal conclusions, but the balancing

test as a whole is a purely legal question. Cantu, 253 S.W.3d at 282.

      Under this standard, we defer not only to a trial judge’s resolution of

disputed facts, but also to the trial judge’s right to draw reasonable inferences

from those facts.        Id. at 281.   In assessing the evidence at a speedy trial

hearing, the trial judge may completely disregard a witness’s testimony, based

on   credibility   and    demeanor     evaluations,   even   if   that   testimony   is

uncontroverted. Id. The trial judge may disbelieve any evidence so long as

there is a reasonable and articulable basis for doing so. Id. And all of the

evidence must be viewed in the light most favorable to the trial judge’s ultimate

ruling. Id. Because Appellant lost in the trial court on his speedy trial claim, we

                                           13
presume that the trial judge resolved any disputed fact issues in the State’s

favor, and we defer to the implied findings of fact that the record supports.

See id. at 282.

      C.    Analysis of the Barker Factors

            1.     Length of Delay

      The length of delay is a “triggering mechanism” for analysis of the other

Barker factors. Barker, 407 U.S. at 530–32, 92 S. Ct. at 2192–93; Orand,

254 S.W.3d at 566.        “Until there is some delay which is presumptively

prejudicial, there is no necessity for inquiry into the other [Barker] factors that

go into the balance.” Barker, 407 U.S. at 530–32, 92 S. Ct. at 2192–93.

Presumptive prejudice does not necessarily indicate a statistical probability of

prejudice; it simply marks the point at which courts deem the delay

unreasonable enough to trigger the Barker inquiry. Doggett, 505 U.S. at 652

n.1, 112 S. Ct. at 2691 n.1; Munoz, 991 S.W.2d at 821–22. This Barker

factor “is actually a double [i]nquiry.” Doggett, 505 U.S. at 651, 112 S. Ct.

at 2690. The first inquiry is whether the delay triggers the Barker analysis. Id.

If the analysis is triggered, the second enquiry “consider[s], as one factor . . .

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

trigger judicial examination of the claim.” Id.




                                        14
      The State concedes that the almost twenty-three month delay between

Appellant’s arrest and his eventual trial is sufficient to trigger the Barker

analysis. We agree. We also conclude that the length in delay, even though

in small part attributable to Appellant when he agreed to a continuance, weighs

against the State.

            2.       Reasons for the Delay

      Under Barker, “different weights should be assigned to different reasons”

for the delay. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. This factor seeks

to ensure that courts not simply concentrate on the sheer passage of time

without taking into account the reasons underlying the delay. See, e.g., Rashad

v. Walsh, 300 F.3d 27, 34 (1st Cir. 2002). The inquiry into causation involves

a sliding scale: deliberately dilatory tactics must be weighed more heavily

against the State than periods of delay resulting from negligence. Barker, 407

U.S. at 531, 92 S. Ct. at 2192. Furthermore, valid reasons for delay should

not be weighed against the State. See Munoz, 991 S.W.2d at 824. And delay

which is attributable in whole or in part to the defendant can weigh against the

defendant and may even constitute a waiver of a speedy trial claim.         See

Barker, 407 U.S. at 529, 92 S. Ct. at 2191–92 (noting that delay attributable

solely to defendant “may be given effect under standard waiver doctrine”); see

also Dickey v. Florida, 398 U.S. 30, 48, 90 S. Ct. 1564, 1574 (1970)

                                       15
(Brennan, J., concurring) (reasoning that a defendant may be “disentitled to the

speedy-trial safeguard in the case of a delay for which he has, or shares,

responsibility”); United States v. Anderson, 902 F.2d 1105, 1110 (2nd Cir.)

(holding that there was no speedy trial violation when, among other things,

defense counsel agreed to delays and continuances for purposes of plea

negotiations), cert. denied, 498 U.S. 867 (1990).

      Like the first factor, the State also concedes that the record does not

provide any valid reason for the delay of Appellant’s trial. While we agree that

this factor weighs against the State, the record does demonstrate that

Appellant agreed to at least one continuance. Further, there is a lack of any

evidence that the State deliberately used dilatory tactics. Even though we

conclude that this factor weighs against the State, it does not weigh heavily

against the State.

            3.       Assertion of the Right

      We next consider the extent to which Appellant affirmatively sought a

speedy trial. Barker, 407 U.S. at 531–32, 92 S. Ct. at 2192. The nature of

the speedy trial right makes “it impossible to pinpoint a precise time in the

process when the right must be asserted or waived, but that fact does not

argue for placing the burden of protecting the right solely on defendants.”   Id.

at 527, 92 S. Ct. at 2193. But even though it is the State’s duty to bring the

                                        16
defendant to trial, it is the defendant’s duty to assert the right to a speedy trial.

Id. at 527–28, 92 S. Ct. at 2193 (“We think the better rule is that the

defendant’s assertion of or failure to assert his right to a speedy trial is one of

the factors to be considered in an inquiry into the deprivation of the right.”).

       Whether and how a defendant asserts this right is closely related to the

other three factors because the strength of the defendant’s efforts will be

shaped by them.      Id. at 531, 92 S. Ct. at 2196.        “The more serious the

deprivation, the more likely a defendant is to complain.”           Id.   Thus, the

defendant’s assertion of the right to a speedy trial—or the failure to assert it—is

entitled to strong evidentiary weight in determining whether the defendant is

being deprived of the right. Id. at 531–32, 92 S. Ct. at 2196. Filing for a

dismissal instead of a speedy trial generally weakens 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. If a defendant fails to first seek a speedy trial before seeking

dismissal of the charges, the defendant should provide cogent reasons for this

failure.   Id.; see also Parkerson v. State, 942 S.W.2d 789, 791 (Tex.

App.—Fort Worth 1997, no pet.).

       Repeated requests for a speedy trial weigh heavily in favor of the

defendant, while the failure to make such requests supports an inference that

the defendant does not really want a trial, only a dismissal. Barker, 407 U.S.

                                         17
at 534–36, 92 S. Ct. at 2192–95 (“[B]arring extraordinary circumstances, we

would be reluctant indeed to rule that a defendant was denied this

constitutional right on a record that strongly indicates . . . that the defendant

did not want a speedy trial.”); see also United States v. Palmer, 537 F.2d

1287, 1288 (5th Cir. 1976) (“[T]he point at which the defendant asserts his

right is important because it may reflect the seriousness of the personal

prejudice he is experiencing.”); Harris, 827 S.W.2d at 957 (“[A]ppellant’s lack

of a timely demand for a speedy trial indicates strongly that he did not really

want a speedy trial.”).

      In Palmer, the Fifth Circuit held that because the defendant ”first asserted

his right thirty months after his arrest, which was one month after he first

received notification of his indictment, and he complained at that time only of

the   22-month    pre-indictment    delay,”   his   “silence   during   the   entire

pre-indictment period work[ed] against him because it suggest[ed] that any

hardships he suffered were either minimal or caused by other factors.” Palmer,

537 F.2d at 1288.

      Likewise, in this case, Appellant did not assert his speedy trial right until

after trial had begun. And when Appellant did assert his right, it was in the

form of a motion to dismiss. In fact, Appellant filed multiple pro se motions to

dismiss during his pretrial incarceration, despite having a court-appointed

                                       18
attorney. The trial court could have reasonably inferred that Appellant was not

interested in a speedy trial, but rather that he was interested only in a dismissal

of the charges against him. We conclude, as the trial court must have, that this

factor weighs against Appellant’s claim that his speedy trial right was violated.

             4.    Prejudice

       Because “pretrial delay is often both inevitable and wholly justifiable,” the

fourth Barker factor examines whether and to what extent the delay has

prejudiced the defendant.      Barker, 407 U.S. at 532, 92 S. Ct. at 2193;

Doggett, 505 U.S. at 656, 112 S. Ct. at 2692. When a court analyzes the

prejudice to the defendant, 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 v. State, 96 S.W.3d 308, 315 (Tex. Crim. App. 2003) (citing Barker,

407 U.S. at 532, 92 S. Ct. at 2193). Of these interests, the third is the most

important because the inability of a defendant to adequately prepare his case

skews the fairness of the entire system. Barker, 407 U.S. at 532, 92 S. Ct. at

2193; Doggett, 505 U.S. at 654, 112 S. Ct. at 2692; Dragoo, 96 S.W.3d at

315.




                                        19
      Appellant argues that this factor should weigh in favor of finding that his

speedy trial right was violated because his pretrial incarceration was oppressive,

he suffered “anxiety and concern” about the preparation of his defense, and he

was unable to locate a witness in preparing for his defense due to his

incarceration. We disagree.

      Appellant’s incarceration may have been oppressive if he had not received

credit on his sentence for time served or if he had ultimately been found

innocent of the charges, but Appellant received credit on his sentence for his

pre-trial incarceration.   See Starks v. State, 266 S.W.3d 605, 612 (Tex.

App.—El Paso 2008, no pet.) (holding that appellant’s twenty-five-month

pretrial incarceration was not oppressive when appellant received credit on his

sentence for time served and appellant ultimately pleaded guilty to charges);

see also United States v. Casas, 425 F.3d 23, 34–35 (1st Cir. 2005) (holding

defendants’ allegations of anxiety and concern during forty-one month period

of pretrial incarceration insufficient to show violation of speedy trial right when

time served was credited against sentences they received upon conviction);

Gray v. King, 724 F.2d 1199, 1204 (5th Cir. 1984) (holding that ten-month

incarceration was not oppressive pretrial incarceration when defendant received

credit for pretrial incarceration).




                                        20
      As to Appellant’s claim of having suffered from anxiety, any criminal

charge is certain to bring a level of anxiety with it; however, Appellant failed to

introduce any evidence that the anxiety he suffered either was abnormal or

caused his case prejudice. See Goodrum v. Quarterman, 547 F.3d 249, 263

(5th Cir. 2008) (“[G]eneralized expressions of anxiety and concern amount to

little more than a nominal showing of prejudice.”).

      Finally, although Appellant mentions a witness he was unable to locate

due to his incarceration, Appellant did not testify how that witness’s testimony

would be relevant to his case. Appellant admitted that the witness was not a

witness to the events and said only that the witness had “information” about

another witness’s statement, but did not elaborate on what the information was

or what specific statement he was referring to. When asked whether he had

attempted to locate this alleged missing witness, Appellant ultimately replied,

“[I]t’s hard to recall. It’s been a long time in the cage.”

      The trial court was entitled to disbelieve all or part of Appellant’s

testimony concerning his attempts to locate this witness.        See Cantu, 253

S.W.3d at 281.     The trial court was also entitled to draw the reasonable

inference that Appellant’s lack of specificity concerning this alleged witness’s

relevance to Appellant’s defense undermined the importance of the witness’s

testimony. The trial court could have reasonably concluded that Appellant had

                                        21
failed to demonstrate that any witnesses forgot any details or otherwise

became unavailable as a result of the delay or that Appellant himself could not

recall the events because of the length of the delay. See Starks, 266 S.W.3d

at 613.   In short, Appellant has not demonstrated any personal or defense

prejudice. The fourth factor favors a finding that Appellant’s right to a speedy

trial was not violated.

            5.    Balancing the Factors

      Having addressed the Barker factors, we must now balance them. In

balancing these factors, we find the case of Meyer v. State from our sister

court in Waco instructive. See Meyer v. State, 27 S.W.3d 644, 651 (Tex.

App.—Waco 2000, pet. ref’d), abrogated on other grounds by Robinson v.

State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). Meyer was incarcerated

during a twenty-three month delay between his arrest and trial, the State gave

no valid reason for the delay, and Meyer timely and consistently asserted his

right to a speedy trial. Id. at 649–51. The court held that although Meyer had

suffered some oppressive pretrial incarceration and undue anxiety, he did not

make even a prima facie showing that his defense had been impaired by the

passage of time resulting from the delay in his trial.    Balancing the Barker




                                      22
factors, the Waco court of appeals concluded that Meyer was not denied his

speedy trial right. Id. at 651.7

      In this case, like in Meyer, Appellant was incarcerated during a twenty-

three month delay between his arrest and trial and the State has given no valid

reason for the delay. Also, like in Meyer, Appellant has not even made a prima

facie showing that his defense was impaired by the passage of time resulting

from the delay in his trial. But unlike in Meyer, Appellant in this case did not

timely and consistently assert his right to a speedy trial, rather he only asserted

the right after trial had begun and then in the form of a motion to dismiss. He

had also previously filed his own motions to dismiss despite having court-

appointed counsel—indicating that he was not interested in a speedy trial, but

rather interested in not having a trial at all.

      In conclusion, weighing in favor of finding that Appellant’s speedy trial

right was violated are the facts that there was a twenty-three month delay

between his arrest and trial and the State has given no valid reason for the




      7
        … It it is worth noting that Meyer sought a habeas claim in federal court.
Meyer v. Dretke, 291 F. Supp.2d 471, 472 (N.D. Tex 2003), aff’d 104 Fed.
Appx. 956 (5th Cir. 2004), cert. denied 544 U.S. 923 (2005). The federal
district court for the Northern District of Texas denied habeas relief, holding
that the W aco court of appeals’s holding was neither “contrary to, [nor] an
unreasonable application of, clearly established federal law as determined by the
Supreme Court.” Id. at 479.

                                         23
delay. Weighing against finding a violation of Appellant’s speedy trial right is

the fact that he failed to assert his right until more than twenty-three months

after his arrest, and then, he asserted that right in the form of a motion to

dismiss and after his trial had begun. Further, there is a lack of any substantial

personal or defense prejudice resulting from the delay and Appellant received

credit on his sentence for time served.     We hold that the weight of these

factors, balanced together, supports the trial judge’s ruling to deny Appellant’s

motion to dismiss and that there was no violation of his right to a speedy trial.

We overrule Appellant’s two points.

                                IV. C ONCLUSION

      Having overruled Appellant’s two points, we affirm the trial court’s

judgment.




                                            DIXON W. HOLMAN
                                            JUSTICE

PANEL: GARDNER and WALKER, JJ.; DIXON W. HOLMAN, J. (Senior Justice,
Retired, Sitting by Assignment).

WALKER, J. filed a concurring opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 5, 2009



                                       24
                         COURT OF APPEALS

                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 2-08-004-CR
                               NO. 2-08-005-CR

JOHN ALFRED CHRISTMAS                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

                                    ------------

          FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY

                                    ------------

                CONCURRING MEMORANDUM OPINION 1

                                    ------------

      I respectfully concur with the majority’s disposition of this appeal. I write

separately to express some disagreement with the majority’s analysis of the

second two Barker2 speedy trial factors. Ultimately, however, existing case law

mandates the result reached by the majority.




      1
          … See Tex. R. App. P. 47.4.
      2
          … Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972).
      The facts of the case are correctly and adequately set forth by the

majority, except the mostly additional facts that are set forth below as

pertinent. As the majority points out, the State’s attorney candidly conceded

during oral argument that the first and second Barker factors—the length of the

delay and the reasons for the delay—weigh in favor of Appellant. See Barker,

407 U.S. at 530, 92 S. Ct. at 2192.

      Regarding the third Barker factor—the extent to which Appellant asserted

his right to a speedy trial—I cannot agree with the majority’s determination that

Appellant did not assert his speedy trial right until after trial had begun.

Majority Op. at 19. A review of the record shows that Appellant repeatedly

attempted to cause his case to come to a head—whether by dismissal or

disposition at trial.   See id.   Appellant sat in jail for six months before an

indictment was returned against him or an attorney was appointed for him. On

the day that the trial court appointed his attorney, the court said it would “see

about appointing an attorney for you if you want to have one,” to which

Appellant replied, “Well, I’ve got to do something. I can’t even get copies

made. I have no access to the law library or anything. . . . So I’m kind of

crippled here.” Later in the same hearing, Appellant noted that an appointed

attorney “would be better than I am doing.”




                                         2
      The record shows that even after an attorney was appointed, Appellant

was the one, rather than his attorney, to file a motion to dismiss,3 claiming that

the State failed to return an indictment within 180 days. See Tex. Code Crim.

Proc. Ann. art. 32.01 (Vernon 2006) (providing for dismissal of charges when

defendant has been detained in custody without presentment of an indictment

on or before the later of either the last day of the next term of court which is

held after defendant’s commitment or on or before the 180th day after the date

of commitment).     Although Appellant’s motion to dismiss failed to use the

magic words requesting a speedy trial, it is clear that Appellant was attempting

to do something to force his case out of its stalemate.




      3
        … The same day that he filed his motion to dismiss, Appellant also filed
a motion requesting that the court instruct the Montague County Sheriff’s
Department and jail staff to provide him access to confidential documents, legal
tablets, ink pens, and the Montague County law library. Appellant explained in
his motion that the jail administrator “repeatedly denied me access to the law
library” and told Appellant “that copies and access to the law library are not
requirements of the state jail commission.” In his motion, Appellant noted that
his court-appointed attorney was acting as co-counsel to Appellant. The record
is silent regarding whether the court approved of this hybrid representation, but
both of Appellant’s handwritten motions to dismiss were relied upon by counsel
at hearings on these motions and the trial court ruled on these motions. See
Robinson v. State, 240 S.W.3d 919, 923 (Tex. Crim. App. 2007) (holding that
trial court is free to disregard pro se motions of a defendant represented by
counsel, but once a court chooses to rule on such motions, that those decisions
are reviewable); Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976)
(holding that although a criminal defendant does not have the right to hybrid
representation, a patient trial judge may permit it).

                                        3
          Appellant’s efforts to move his case off dead center are further evidenced

by the fact that two months after the hearing on Appellant’s first motion to

dismiss, he filed several handwritten motions for discovery—motions attempting

to move the case forward. And on the day of trial, Appellant filed a second

handwritten motion to dismiss, this time alleging a denial of his right to a

speedy trial. When his attorney presented the motion to the court, he explained

that Appellant brought it with him to court that day and that the State had not

had a chance to review it. Appellant explained, “I just got – I have no access

– until I got that copy of the constitution and stuff, I didn’t know what to put

in it.”

          Appellant does not bear the burden to bring himself to trial; that is the

State’s duty. See Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App.

2008) (citing Barker, 407 U.S. at 527–28, 92 S. Ct. at 2190–91). Although

Appellant does have the responsibility to assert his right to a speedy trial in

some fashion, the right to a speedy trial is constitutionally guaranteed not only

to the vigilant and the knowledgeable. Id.; Orand v. State, 254 S.W.3d 560,

568 (Tex. App.—Fort Worth 2008, pet. ref’d) (citing Barker, 407 U.S. at 527

n.27, 92 S. Ct. at 2190 n.27). The record demonstrates that Appellant was

not simply acquiescing to the delay while he was jailed for twenty-three

months; Appellant sought access to the law library and to items necessary to

                                           4
prepare a defense, and ultimately asserted, albeit in a motion to dismiss, his

right to a speedy trial. See Barker, 407 U.S. at 527, 92 S. Ct. at 2190 (noting

that it is impossible to pinpoint a precise time in the process when the

defendant must assert his right to a speedy trial). These efforts by Appellant

make analysis of the third Barker factor a much closer call than recognized by

the majority. Nevertheless, existing case law simply precludes a determination

that this factor weighs in Appellant’s favor. See, e.g., id. at 517–19, 533–35,

92 S. Ct. at 2185–87, 2193–94 (holding that filing of motion to dismiss

indictment in response to “another motion for continuance” by government

after over three-year delay was not assertion of speedy trial right); United

States v. Palmer, 537 F.2d 1287, 1288 (5th Cir. 1976) (holding that

defendant’s silence during twenty-two month pre-indictment period weighed

against him when he asserted his right thirty months after arrest and one month

after notified of his indictment); Cantu, 253 S.W.3d at 277, 286 (noting that

appellant’s tardiness in asserting his right weighed against him when he filed

motion to dismiss less than two months after he was charged but over sixteen

months after his arrest); Dragoo v. State, 96 S.W.3d 308, 315 (Tex. Crim.

App. 2003) (holding that defendant’s failure to assert speedy-trial violation for

three and a half years, until just before trial began, although represented by

counsel and absent any assertion that counsel was ineffective, caused third

                                       5
Barker factor to weigh against him); Phillips v. State, 650 S.W.2d 396, 401

(Tex. Crim. App. 1983) (“[A] defendant’s motivation in asking for dismissal

rather than a prompt trial is clearly relevant, and may sometimes attenuate the

strength of his claim.”); Parkerson v. State, 942 S.W.2d 789, 791 (Tex.

App.—Fort Worth 1997, no pet.) (holding that appellant’s request for dismissal,

rather than speedy trial, weakened his speedy-trial claim).

      Regarding the fourth Barker factor, “prejudice,” Appellant suffered pretrial

incarceration in an uncomplicated case for twenty-three months; six months

passed before Appellant was indicted and before counsel was appointed for

him. See Barker, 407 U.S. at 531–32, 92 S. Ct. at 2192–93. The majority

summarily concludes that this pretrial incarceration was not oppressive because

Appellant received credit for time served. Maj. Op. at 20. Receiving credit

retroactively for time served, however, cannot completely undo or cure

oppressive pretrial incarceration. See State v. Munoz, 991 S.W.2d 818, 828

(Tex. Crim. App. 1999) (recognizing that “[w]hat is dispositive of ‘this

[oppressive pretrial incarceration] consideration’ is that [Appellant] was

incarcerated during the entire [twenty-three]-month delay”); see also Barker,

407 U.S. at 532–33, 92 S. Ct. at 2193 (“The time spent in jail awaiting trial

has a detrimental impact on the individual. It often means loss of a job; it

disrupts family life; and it enforces idleness.     Most jails offer little or no

                                        6
recreational or rehabilitative programs. The time spent in jail is simply dead

time. Moreover, if a defendant is locked up, he is hindered in his ability to

gather evidence, contact witnesses, or otherwise prepare his defense.”).

      The prejudice to Appellant is also somewhat self-evident from the nature

of the charges against him; individuals engaged in and witnesses to domestic

disputes escalating to assaults sometimes live more transient lifestyles. After

twenty-three months of pretrial incarceration, Appellant testified that “people

move. You can’t get ahold [sic] of anybody. After two years, you don’t know

the addresses, phone numbers.” Appellant also testified that he would have

called a Mr. Rhodes to testify to “information that wasn’t in the statement” if

he knew how to contact him. Ultimately, Appellant called only two witnesses

at trial—himself and his girlfriend at the time of the incident. Under the fourth

Barker factor, affirmative evidence of prejudice is not necessary and the

presumption of prejudice grows and intensifies over time. See Orand, 254

S.W.3d at 569 (noting that “time’s erosion of exculpatory evidence and

testimony can rarely be shown”).

      Existing case law, however, mandates that after a two-year delay

Appellant must establish more than speculative prejudice to his defense. See,

e.g., Cantu, 253 S.W.3d at 277 (noting in its prejudice analysis that “there was

no evidence that appellant lost his job or had his work schedule disrupted”);

                                       7
Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003) (“[A]ppellant

offered no evidence to the trial court that the delay had caused him any unusual

anxiety or concern, i.e., any anxiety or concern beyond the level normally

associated with being charged with [the] crime.”); Burgett v. State, No. 02-05-

00377-CR, 2006 WL 3525434, at *4 (Tex. App.—Fort Worth Apr. 25, 2007,

pet. ref’d) (mem. op., not designated for publication) (finding no connection

between appellant’s lack of access to the law library with his claim of

prejudice); State v. Wray, No. 05-01-01799-CR, 2002 WL 1763567, at *4

(Tex. App.—Dallas July 31, 2002, pet. dism’d) (not designated for publication)

(holding delay of two and one-half years was not presumptively prejudicial);

Meyer v. State, 27 S.W.3d 644, 650 (Tex. App.—Waco 2000, pet. ref’d)

(holding that defendant’s claim of prejudice based on missing witnesses did not

support prejudice finding because defendant, who was incarcerated during the

entire twenty-three month delay, failed to address both materiality and

relevance of the missing witnesses and his efforts to find them), abrogated on

other grounds by Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App.

2007) . Here Appellant did not do so.

      For the reasons stated above, I respectfully concur in the majority’s

opinion.
                                                 SUE WALKER
                                                 JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 5, 2009

                                       8
