                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00196-CR



           VERONICA ROLDAN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 123rd District Court
                Panola County, Texas
            Trial Court No. 2009-C-0128




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                                        MEMORANDUM OPINION
            After a jury convicted Veronica Roldan of aggravated assault, she was sentenced to nine

years’ confinement in prison. In her sole point of error on appeal, Roldan argues that the trial court

erred when it denied her motion to dismiss the indictment based on an alleged violation of her right

to a speedy trial. We find the trial court did not err in declining to dismiss the indictment because

her right to a speedy trial was not violated. Accordingly, we affirm the trial court’s judgment.

I.          The Trial Court Did Not Err in Declining to Dismiss the Indictment

            A.      Timeline

            Roldan was arrested on April 29, 2009, for the April 26, 2009, aggravated assault of

Michelle Adams. On June 23, 2009, Roldan filed numerous pretrial motions, including a motion

in limine, a motion to suppress, and a motion for discovery. On December 17, 2009, Roldan filed

an “announcement of not ready,” stating that she was not prepared for trial, which had been set for

jury selection on January 25, 2010. On December 17, 2010, the case was continued and set for the

entry of a guilty plea on January 7, 2011. Apparently, the guilty plea never came to fruition, and

on April 15, 2011, both sides announced they were ready for trial.

            About seven years later, on February 6, 2018, the trial court issued a notice, ordering

Roldan to appear in court for arraignment on February 27, 2018. 1 In that same notice, the trial

court set a jury trial to commence on June 11, 2018. Roldan failed to appear on February 27, 2018,

and the trial court issued a capias for her arrest. On March 23, 2018, Roldan was arrested and, on




1
    In 2017, a newly-elected judge took the bench.

                                                     2
March 26, 2018, the trial court held a bond hearing. Roldan’s original bond was reinstated, along

with the same conditions.

            On May 23, 2018, the trial court entered an order granting Roldan’s motion to substitute

counsel. On July 12, 2018, Roldan appeared in court, and an agreed discovery order was entered

the next day, setting a trial date of September 24, 2018. The record also shows the trial court

“excused” Roldan from court proceedings until September 13, 2018.

            On September 13, 2018, Roldan filed her motion to dismiss for violation of her right to a

speedy trial, and on September 20, 2018, she filed a brief in support of her motion. On that same

day, the trial court denied her motion. Trial began on September 24, 2018. During trial, Roldan

re-urged her motion to dismiss. The trial court held a brief hearing, considered Roldan’s testimony

and arguments of counsel, and, again, denied her motion. 2

            After the jury found Roldan guilty of aggravated assault, she was sentenced to nine years’

confinement in prison. In her sole point of error on appeal, Roldan argues that the trial court erred

when it denied her motion to dismiss the indictment based on an alleged violation of her right to a

speedy trial.

            B.      Standard of Review

            “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 . . . trial.’” Nguyen v.

State, 506 S.W.3d 69, 77 (Tex. App.—Texarkana 2016, pet. ref’d) (quoting U.S. CONST. amend.

VI; Barker v. Wingo, 407 U.S. 514, 515 (1972)). “That right was made applicable to the states by

the Due Process Clause of the Fourteenth Amendment.” Id. (citing U.S. CONST. amend. XIV;


2
    Roldan also filed a sworn statement that echoed the testimony she gave during the hearing on her motion.
                                                            3
Klopfer v. N. Carolina, 386 U.S. 213, 223–26 (1967)). “The Texas Constitution likewise provides

that . . . ‘the accused shall have a speedy . . . trial.’” Id. (quoting TEX. CONST. art. 1, § 10).

        The right to a speedy trial cannot be quantified in days or months. Barker v. Wingo, 407

U.S. 514, 523 (1972). Thus, Texas courts “analyze federal constitutional speedy-trial claims ‘on

an ad hoc basis’ by weighing and then balancing the Barker v. Wingo facts.” Cantu v. State, 253

S.W.3d 273, 280 (Tex. Crim. App. 2008). In executing the balancing test, “[t]he court should

inquire about (1) the length of the delay, (2) reasons for the delay, (3) the circumstances of the

defendant’s assertion of the right, and (4) any prejudice that resulted from the delay.” Nguyen,

506 S.W.3d at 77 (citing Barker, 407 U.S. at 530). No one factor is determinative, and all factors

must be considered together along with relevant circumstances on a case-by-case basis. Cantu,

253 S.W.3d at 281.

        “When reviewing a trial court’s decision on a speedy trial claim, an appellate court applies

a bifurcated standard of review.” Nguyen, 506 S.W.3d at 77 (citing State v. Munoz, 991 S.W.2d

818, 821 (Tex. Crim. App. 1999); State v. Jones, 168 S.W.3d 339, 345 (Tex. App.—Dallas 2005,

pet. ref’d)). “[W]e review legal issues de novo[,] but give deference to a trial court’s resolution of

factual issues.” Id. (quoting Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005); Munoz,

991 S.W.2d at 821; Jones, 168 S.W.3d at 345). “We review a speedy trial claim in light of the

arguments, information, and evidence that was available to the trial court at the time it ruled.” Id.

(citing Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); Dragoo v. State, 96 S.W.3d

308, 313 (Tex. Crim. App. 2003); Jones, 168 S.W.3d at 345). Under an abuse of discretion

standard, we defer to the trial judge’s resolution of facts and reasonable inferences drawn



                                                   4
therefrom, and we review the evidence in a light most favorable to the ruling. Cantu, 253 S.W.3d

at 282.

            C.       Analysis

                     1.       The Length of Delay

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

presumptively prejudicial. Barker, 407 U.S. at 281. This first factor, however, includes a double

inquiry. See Doggett v. United States, 505 U.S. 647, 651 (1992). A court first “must consider

whether the delay is sufficiently long to even trigger a further analysis under the Barker factors,

and if it is, then the court must consider to what extent it stretches beyond this triggering length.” 3

Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim. App. 2017).

            Roldan was arrested on April 29, 2009, 4 for the aggravated assault of Michelle Adams. 5

Her trial began on September 25, 2018. The nine-year delay stretches well beyond the triggering

length and is presumptively prejudicial. 6 See Barker, 407 U.S. at 281 (citing Phillips v. State, 650

S.W.2d 396, 399 (Tex. Crim. App. [Panel Op.] 1983)). Accordingly, this factor weighs heavily in

Roldan’s favor.




3
 In general, courts find that a delay approaching one year is sufficient to trigger a full inquiry. Doggett, 505 U.S. at
652 n.1.
4
 The right to a speedy trial attaches when an individual is accused of a crime. This can occur when she is arrested or
when she is charged. Henson v. State, 407 S.W.3d 764, 767 (Tex. Crim. App. 2013) (citing United States v. Marion,
404 U.S. 307, 321 (1971)).
5
    The incident was alleged to have occurred on April 26, 2009.
6
    The State acknowledges that the nine-year delay is sufficient to trigger a full Barker analysis.
                                                              5
                  2.      Reason for the Delay

        While the “burden of excusing the delay rests with the State,” Phillips, 650 S.W.2d at 400,

“different weights should be assigned to different reasons,” Barker, 407 U.S. at 531, when

analyzing this prong of the Barker test. Thus, “the length of delay can be further subdivided into

justifiable and unjustifiable reasons for delay depending on the circumstances of the case.”

Gonzales v. State, 435 S.W.3d 801, 810 (Tex. Crim. App. 2014) (citing Barker, 407 U.S. at 531–

32). “A justifiable reason for delay in a complex white-collar case, for example, may not be a

justifiable reason for delay in a simple assault case.” Id. (citing Dickey v. Florida, 398 U.S. 30,

38 (1970) (“Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some

delays inevitable.”). However, deliberate attempts to delay trial in order to hamper a defense are

weighted heavily against the State. Barker, 407 U.S. at 531. More neutral reasons, such as

negligence or overcrowded dockets, are weighted less heavily. Id. A valid reason for delay

“should serve to justify appropriate delay.” Id. Delay which is attributable in whole or in part to

the defendant is heavily weighed against the defendant and “may even constitute a waiver of a

speedy trial claim.” 7 State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999) (citing Barker,

407 U.S. at 528–30; Dickey v. Florida, 398 U.S. 30, 48 (1970) (Brennen, J., concurring, joined by

Marshall, J.)).

        To simplify, we will separate the nine-year period of time into three phases, with the first

phase beginning at the time of Roldan’s arrest in April 2009 and ending on April 15, 2011, when

both parties announced they were ready to proceed with trial. During this initial phase, the delay



7
 The complexity of the charged offense should also be considered: “[T]he delay that can be tolerated for an ordinary
street crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at 531.
                                                         6
appears to be a result, at least in part, of Roldan’s own actions. First, she announced she was not

ready for trial, necessitating a continuance in the matter. Then, although a guilty plea setting had

been scheduled by the trial court, for some reason, the plea hearing never took place, thus requiring

another continuance. Undoubtedly, Roldan had the right to change her intended plea of guilty and

request a jury trial; however, the resulting delay cannot be attributed to the State.

         Next, we address the second phase, that is, the seven-year period between April 15, 2011,

at which time both sides announced ready for trial, and February 27, 2018, when the trial court

issued a capias for her failure to appear in court. First, there is nothing in the record demonstrating

that the State deliberately delayed the trial in an effort to hamper Roldan’s defense. Regardless,

the State carries the burden of justifying its delay. See Cantu, 253 S.W.3d at 280. Yet, when there

is an absence of an assigned reason for the delay, a court may presume neither a deliberate attempt

on the part of the State to prejudice the defense, nor a valid reason for the delay. Id. Such prejudice

is given less weight than a deliberate intent to harm the accused’s defense. Doggett, 505 U.S. at

657.

         Notably, during the seven-year period of time, Roldan failed to bring the issue of delay to

the trial court’s attention by filing a motion for speedy trial. “The defendant has no duty to bring

himself to trial; that is the State’s duty. But a defendant does have the responsibility to assert his

right to a speedy trial.” See Cantu, 253 S.W.3d at 282 (citing Barker, 407 U.S. at 527–28). Roldan

did not assert her right to a speedy trial during extended periods of inactivity in the case. 8 On the



8
 Fairly recently, the Texas Court of Criminal Appeals held, “Because we have determined that the record supports a
conclusion that appellant knew about his Texas charge, his complete failure to assert his right to a speedy trial for
more than eighteen years suggests that he did not really want a speedy trial.” Hopper v. State, 520 S.W.3d 915, 928
(Tex. Crim. App. 2017); see Lott v. State, 951 S.W.2d 489, 495 (Tex. App.—El Paso 1997, pet. ref’d) (factor weighed
                                                         7
other hand, the State offered no justifiable reason for its failure to proceed with Roldan’s trial in a

more timely manner. As a result, this period of delay must be attributed to both parties; however,

the greatest measure of fault rests squarely with the State.

            At the beginning of February 2018, the trial court noticed Roldan to appear in court on

February 27, but Roldan failed to appear. As a result, on the same day, the court issued a capias

for her arrest, and about a month after that, Roldan was arrested. Although Roldan maintained she

never received the February 2018 notice to appear, the trial court, as the finder of fact, could have

found her credibility, as it related to that specific testimony, to be suspect. 9 See Martinez v. State,

17 S.W.3d 677, 683 (Tex. Crim. App. 2000). It was within the trial court’s discretion to have

believed or disbelieved all, part, or none of Roldan’s testimony10 and to have assigned that period

of delay to her, rather than the State. 11

            When we examine the record in its entirety, the nine-year delay was attributable, at least in

part, to Roldan; however, the State failed to offer any justification for the excessive delay.

Accordingly, this factor weighs in favor of a finding that Roldan’s right to a speedy trial was

violated.



against appellant when the evidence “support[ed] a finding that Lott, knowing of the charges, chose to remain at large
for more than thirty years without ever demanding a trial”).
9
 During the hearing on her motion to dismiss, Roldan stated that she did not receive notice to appear in court. She
maintained that although she kept in contact with her attorney, he did not tell her about the issuance of the capias and
did not inform her that she had been ordered to appear in court. Roldan also stated that her bondsman did not let her
know that she had a court date.
10
     See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
11
  On May 23, 2018, Roldan asked the trial court to grant her motion to substitute counsel, which it did. At the time
the trial court granted her motion, Roldan’s trial was scheduled to begin just three weeks later on June 11, 2018. It
was subsequently reset to a later date. This is additional evidence that the latter portion of the proceeding was delayed
by Roldan, not the State.
                                                           8
                3.      Assertion of Right

        Next, Roldan had the responsibility to timely assert her right to a speedy trial. See Cantu,

253 S.W.3d at 282 (citing Barker, 407 U.S. at 527–28). “Whether and how a defendant asserts

[her] right is closely related to the other [Barker] factors. . . .” Gonzales, 435 S.W.3d at 810

(quoting Barker, 407 U.S. at 531 (“noting that a defendant’s timely assertion of his speedy-trial

right affects the other Barker factors”)). Thus, “this factor ‘is entitled to strong evidentiary weight

in determining whether the defendant is being deprived of the right [to a speedy trial].” Id. at 810–

11 (quoting Barker, 407 U.S. at 531–32). However, “although an accused is entitled to a speedy

trial, a defendant has no duty to bring himself to trial.” Id. at 811 (citing Zamorano v. State, 84

S.W.3d 643, 651 (Tex. Crim. App. 2002)).

        “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,

he wants only a dismissal.” Cantu, 253 S.W.3d at 283 (citing Barker, 407 U.S. at 534–36). Under

Texas law, a request that the court dismiss the charges for a speedy-trial violation, rather than a

request for a prompt trial setting, attenuates the strength of a speedy-trial claim because it indicates

more of a desire to avoid trial rather than a desire to obtain a speedy trial. Phillips, 650 S.W.2d at

401; Barringer v. State, 399 S.W.3d 593, 601 (Tex. App.—Eastland 2013, no pet.); Orosco v.

State, 827 S.W.2d 575, 577 (Tex. App.—Fort Worth 1992, pet. ref’d). “The constitutional right

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

        In support of her position that this factor weighs in her favor, Roldan directs us to Doggett,

505 U.S. at 657. In Doggett, the United States Supreme Court was tasked with determining

whether an eight-and-one-half year delay between the indictment and prosecution violated

                                                   9
Doggett’s Sixth Amendment right to a speedy trial. Doggett had been indicted in February 1980

for conspiracy to import and distribute cocaine. Id. at 648. When the Government arrived at his

parent’s home to arrest him, they found out that just four days earlier, he had left for Columbia.

Id. at 649. In September 1981, the Government determined that Doggett had been arrested in

Panama on drug charges. A year later, Doggett passed through customs in New York City without

being stopped. Unbeknownst to the Government, Doggett lived openly under his own name,

subsequently married, earned a college degree, found steady employment, and stayed within the

law. Id. About six years later, the Government became aware that Doggett was in the United

States when the Marshal’s Service ran a credit check on several thousand people who had

outstanding warrants. Id. at 650. Within minutes, the Government determined where Doggett

lived and worked. Id. On September 8, 1988, Doggett was arrested and prosecuted. Id.

         Doggett moved to dismiss his indictment, arguing that the Government’s failure to

prosecute him violated his Sixth Amendment right to a speedy trial. Id. However, the district

court denied his motion, 12 and Doggett entered a conditional guilty plea. Id. The court of appeals

affirmed the district court’s ruling. The United States Supreme Court granted certiorari, holding

that the eight-and-one-half-year delay violated Doggett’s Sixth Amendment right to a speedy trial.

         The court pointed out, “The Government goes against the record again in suggesting that

Doggett knew of his indictment years before he was arrested. Were this true, Barker’s third factor,



12
 The district court took the magistrate judge’s recommendation, which found that the delay was “presumptively
prejudicial,” “that the delay [was] ‘clearly . . . attributable to the negligence of the government’ and that Doggett could
not be faulted for any delay in asserting his right to a speedy trial, there being no evidence that he had known of the
charges against him until his arrest.” Doggett, 505 U.S. at 650 (citation omitted). “The Magistrate also found,
however, that Doggett had made no affirmative showing that the delay had impaired his ability to mount a successful
defense or had otherwise prejudiced him.” Id. This failure, according to the magistrate judge, sufficed to defeat
Doggett’s motion to dismiss. Id.
                                                           10
concerning invocation of the right to a speedy trial, would be weighed heavily against him.” Id. at

653 (emphasis added).

            In this case, there is little, if any, doubt that the State took an excessive amount of time to

bring Roldan to trial. Unlike the facts contained in Doggett, here, Roldan had been aware of the

existence of the indictment from the time it was handed down by the grand jury. Despite having

this knowledge, Roldan failed to move for a speedy trial. Although she was indicted in May 2009,

she did not bring her complaint to the trial court until almost nine years later and just two weeks

prior to the commencement of trial, when she filed her motion to dismiss. 13 The delay in the

presentment is relevant in determining this Barker factor. See Barker, 407 U.S. at 529 (we consider

the force of the defendant’s objections to delay); see also Speights v. State, No. 06-12-00137-CR,

2014 WL 1246074, at *5 (Tex. App.—Texarkana Mar. 26, 2014) (mem. op., not designated for

publication), rev’d on other grounds by 464 S.W.3d 719 (Tex. Crim. App. 2015). 14

            In Shaw v. State, 117 S.W.3d 883 (Tex. Crim. App. 2003), there was a delay of thirty-five

months between the issuance of the indictment and appellant’s second trial. Id. at 888. Despite

its finding that Shaw’s right to a speedy trial had been violated, the Texas Court of Criminal

Appeals explained,

            Although a defendant’s failure to seek a speedy trial does not amount to a waiver
            of the speedy trial right, failure to seek a speedy trial makes it difficult for a
            defendant to prevail on a speedy trial claim. Barker v. Wingo, 407 U.S. at 432, 92
            S.Ct. 2182. This is so because a defendant’s failure to make a timely demand for a
            speedy trial indicates strongly that he did not really want one and that he was not
            prejudiced by not having one. Dragoo v. State, 96 S.W.3d at 314. Furthermore,
            the longer the delay becomes, the more likely it is that a defendant who really

13
     Doggett filed his motion to dismiss as soon as he became aware of the indictment against him.
14
  Although this unpublished case has no precedential value, we may take guidance from it “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
                                                           11
       wanted a speedy trial would take some action to obtain one. Ibid. Thus, a
       defendant’s inaction weighs more heavily against a violation the longer the delay
       becomes. Ibid.

Id. at 890 (emphasis added). In determining that this particular factor weighed against Shaw, and

in favor of the State, the court reasoned, “[Shaw] failed to assert his speedy trial until 29 months

after his first trial, and he did not seek a hearing on his motion to dismiss until almost six months

after that, although he was represented by counsel . . . .” Id.

       In this case, Roldan waited nine years before she brought the issue to the court’s attention,

and the hearing was held during the latter portion of the trial proceedings. During the entirety of

the proceedings, Roldan was represented by counsel, and she has not alleged that her counsel was

ineffective. Her procrastination, coupled with her request for dismissal when she ultimately did

complain of the delay, leads us to conclude that this Barker factor weighs heavily against her.

               4.      Prejudice

       “[T]he burden is on the accused to make some showing of prejudice which was caused by

the delay in [her] trial.” Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973). Prejudice

occasioned by the delay in proceeding to trial is assessed in the light of the three interests which

the right to a speedy trial was designed to protect:         (1) freedom from oppressive pretrial

incarceration, (2) mitigation of the anxiety and concern on the part of the accused that accompanies

a public accusation, and (3) avoidance of impairment to the defense of the charges. Barker, 407

U.S. at 532.

       As to the first factor, Roldan was confined in jail for only five days, and there was evidence

that her confinement was a direct result of her failure to appear in court. Thus, we are unable to

find that she was prejudiced or harmed by her brief pretrial confinement.

                                                 12
            Regarding the second factor, during the hearing on her motion to dismiss, Roldan testified

that due to the aggravated assault charge pending against her, she had lost employment

opportunities and had been fired from jobs. According to Roldan, she lost her home because she

did not have a job, and it had been difficult to explain the circumstances to her children. 15 Roldan

stated that she suffered from depression and anxiety, but that she had not been to the doctor because

she did not have health insurance and she lacked the finances to do so.

            In Harlan v. State, 975 S.W.2d 387 (Tex. App.—Tyler 1998, pet. ref’d), Booker T. Harlan

pled guilty to the offense of driving while intoxicated when the trial court denied his motion to set

aside the information based on an alleged violation of his right to a speedy trial. Id. at 389. Nearly

four and one-half years had elapsed between the time of his arrest and the date his trial began. Id.

In his sole point of error on appeal, Harlan maintained that the trial court erred when it denied his

motion, which he had made orally shortly before jury selection. Id. In affirming the trial court,

the Tyler Court of Appeals explained,

            Appellant did not suffer oppressive pretrial incarceration because he was released
            on bond after one night in jail. He claimed during the hearing on his motion to
            dismiss that he suffered much anxiety and concern during the four years prior to his
            ultimate prosecution. The Supreme Court has recognized that even if not detained
            prior to trial, one awaiting trial on criminal charges suffers restraints on his liberty
            and lives “under a cloud of anxiety, suspicion, and often hostility.” Barker, 407
            U.S. at 533, 92 S.Ct. at 2193. Appellant did not offer evidence, apart from his
            testimony, to demonstrate such anxiety, and, as noted above, we are inclined to
            conclude that his level of anxiety was not great, given the fact that he never pursued
            his pretrial motions nor asserted his right to a speedy trial during the more than four
            years leading up to trial. Cf. Santallan v. State, 922 S.W.2d 306, 309 (Tex. App.—
            Fort Worth 1996, pet. ref’d). In fact, the unavoidable inference is that Appellant’s
            main source of anxiety was his fear of almost certain conviction; but we may also




15
     Roldan testified that she had been working at a nursing home at the time of her arrest for failure to appear in court.
                                                              13
       infer that the delay provided Appellant with his only relief from that anxiety
       because it gave him hope that the case would be dismissed on speedy trial grounds.

Id. at 390–91.

       As was the case in Harlan, here, Roldan offered only her testimony in regard to this issue.

Likewise, she did not file a motion to dismiss until she neared the commencement of her trial.

Further, and as we have already discussed, there was evidence that she failed to comply with the

trial court’s notice requiring her presence in court. Instead, she was arrested about a month later.

When taking into consideration Roldan’s actions, it could be said that the delay “provided [her]

with [her] only relief from that anxiety” rather than adding to it. See id. Regardless, Roldan’s

testimony did not demonstrate that she suffered “greater anxiety or concern beyond the level

normally associated with a criminal charge or investigation.” See Porter v. State, 540 S.W.3d 178,

184 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d) (citing Cantu, 253 S.W.3d at 286).

       As to the third factor, Roldan contends that the delay in the start of her trial resulted in her

inability to mount a defense. The Texas Court of Criminal Appeals has held that “[o]f these forms

of prejudice, ‘the most serious is the last, because the inability of a defendant adequately to prepare

[her] case skews the fairness of the entire system.’” Dragoo, 96 S.W.3d at 315 (quoting Barker,

407 U.S. at 532). However, in order for Roldan to make a showing of prejudice, she must

demonstrate “that the witnesses are unavailable, that their testimony might be material and relevant

to [her] case, and that [she] has exercised due diligence in [her] attempt to find them and produce

them for trial.” See Harris, 489 S.W.2d at 308; see also Dokter v. State, 281 S.W.3d 152, 162

(Tex. App.—Texarkana 2009, no pet.).




                                                  14
         During the hearing on her motion to dismiss, Roldan was asked, “You are aware that this

house was at Chris and Cristal’s -- I’m sorry. The party was at Chris and Cristal’s house?” She

answered, “Yes.” Roldan was then asked, “We attempted to locate them; is that right? We were

provided with an address for them [by the State],” to which she responded, “Yes.” The questioning

continued, “You are aware we sent -- we ordered subpoenas, sent them to the sheriff’s office. They

were returned, saying there was no forwarding address for them?”                              Roldan said, “Yes.”

Nevertheless, in its rebuttal case, the State called both witnesses to testify. Neither witnesses’

testimony was favorable to Roldan. Consequently, we cannot find that the delay prejudiced her

ability to defend herself. 16

         We conclude the prejudice factor does not weigh in favor of dismissal of the case.

                  5.       Balancing

         “Having addressed the four Barker factors, we must now balance them.” Dragoo, 96

S.W.3d at 316. Here, the nine-year delay in the commencement of trial, of which a large portion

was attributable to the State, weighs in favor of finding that Roldan’s speedy-trial right was

violated. However, Roldan’s contribution to the delay, as well as her tardy presentment of her

complaint to the trial court, and then pleading for a dismissal—as opposed to requesting speedy



16
  In support of her contention that this particular factor weighs in her favor, Roldan again relies on Doggett. There,
the Court stated that even if Doggett failed to make an affirmative showing that the delay weakened his ability to
present a defense, “consideration of prejudice is not limited to the specifically demonstrable . . . .” Doggett, 505 U.S.
at 655. The Court continued, “Thus, we generally have to recognize that excessive delay presumptively compromises
the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Id.
          Again, there is a difference between the facts in Doggett and the facts of this case. As we have already noted,
in Doggett, the Court took into consideration that Doggett was unaware of the indictment pending against him. As
far as he knew, there was no reason for him to seek potential defense witnesses. Thus, his lack of knowledge
contributed to his inability to effectively prepare for his defense. Unlike Doggett, Roldan knew of the pending
indictment against her from its inception. In this case, Roldan not only waited until just before the commencement of
trial to locate witnesses, the State actually located the witnesses, called them to testify at trial, and the witness
testimony was not favorable to Roldan. Consequently, the present case is distinguishable from Doggett.
                                                          15
trial—all weigh heavily against her claim. Moreover, other than showing that there had been a

negative effect on her personal life due to the pending charge, there was little, if any, evidence to

indicate that the delay negatively affected her ability to mount a defense at trial. This is especially

true considering that Roldan had been released on bond during the complained-of period of time.

We therefore conclude that the trial court did not err in declining to dismiss the indictment.

       Accordingly, we overrule Roldan’s sole point of error.

II.    Conclusion

       We affirm the trial court’s judgment.




                                               Ralph K. Burgess
                                               Justice

Date Submitted:        July 29, 2019
Date Decided:          August 29, 2019

Do Not Publish




                                                  16
