                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                                  §
  THE STATE OF TEXAS,                                             No. 08-17-00060-CR
                                                  §
                         Appellant,                                   Appeal from
                                                  §
  v.                                                              243rd District Court
                                                  §
  CRUZ SUAREZ,                                                  of El Paso County, Texas
                                                  §
                         Appellee.                                (TC # 20160D02068)
                                                  §

                                          OPINION

       In this appeal, we grapple with whether the trial court erred in dismissing an indictment

based the State’s supposed failure to provide a speedy trial. The State indicted Cruz Suarez for

the aggravated sexual assault of child. The parties focus on three periods of delay: (1) the

indictment came some eight-years after the alleged date of the crime; (2) sixty-nine days elapsed

between the date of the indictment and the date Suarez was adjudged incompetent to stand trial,

and ordered committed to a State psychiatric facility; (3) Suarez’s commitment to that facility was

delayed, and nine months following the indictment, he filed and the trial court heard a motion

asserting his speedy trial rights. The trial court granted the motion and dismissed the case.
           Because the record does not support a finding of the presumptive prejudice necessary to

trigger a full Barker v. Wingo1 inquiry, and even if it did, the balance would not favor Suarez, we

reverse the dismissal order with a remand for further proceedings.

                                                BACKGROUND

           The underlying criminal case arises out the alleged aggravated sexual assault on a child

younger than 14 years of age that took place on December 6, 2008. The grand jury returned the

indictment charging Cruz Suarez with this crime on May 4, 2016. Suarez was arrested on May

19, 2016, and a magistrate promptly appointed counsel. Suarez’s family apparently notified the

appointed attorney that the then elderly Suarez “has the mind of a child” and that “he does not

know what is going on.” On May 25, 2016, appointed counsel filed a motion for a psychiatric

exam because Suarez “appears incapable of understanding the proceedings against him.” The trial

court granted the motion, resulting in Jason D. Dunham, Ph.D. examining Suarez in June, and

preparing a report on July 8, 2016. The report is in not in our record, but we can assume its

conclusion comports with an agreed order on July 13, 2016, finding that Suarez was not competent

to stand trial.2 The trial court’s order committed Suarez to an appropriate facility as determined

by the DSHA State Hospital Forensic Admissions Clearinghouse. The order specifically required

a 120-day commitment for examination and treatment, focused on restoring Suarez’s competence

to stand trial.

           On November 15, 2016, the trial court issued a subsequent order reciting that Suarez was

still incarcerated in the local jail and had not been transferred because of a lack of bed space at the

treating facility. The order recites that Suarez is over 84 years old and that “time was of the


1
    Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
2
  A note in the billing records of Suarez’s council states that the report diagnosed Suarez with “dementia and other
ailments.”

                                                          2
essence.” The court ordered that Suarez be placed “at the top of the list for bed space” and that he

be transferred and treated within twenty-one days of the order. On December 14, 2016, the trial

court issued an order which would allow Suarez to bond out of jail on a $2,500 personal

recognizance bond. A notation in the court’s docket sheet, however, reflects the U.S. Immigration

& Customs Enforcement (ICE) had a hold on Suarez. The note states that ICE may have picked

Suarez up and deported him.

       On February 1, 2017, Suarez’s counsel filed a motion for a speedy trial, seeking “general

relief.” His counsel filed a second motion on February 13, 2017, that sought dismissal of the case.

Following a non-evidentiary hearing two days later, at which Suarez did not appear, the trial court

granted the motion and dismissed the indictment. Suarez’s counsel represented at the hearing that

“Immigration had a hold on him and sent him to Mexico or [he] went to Mexico on his own.”

                    APPLICABLE LAW AND STANDARD OF REVIEW

       The Sixth Amendment protects the right to a speedy trial and the Fourteenth Amendment

requires the States to respect that right. U.S. Const. amend. VI; Henson v. State, 407 S.W.3d 764,

766 (Tex.Crim.App. 2013); see also U.S. Const. amend. XIV; Klopfer v. North Carolina, 386 U.S.

213, 222-26, 87 S.Ct. 988, 993-95, 18 L.Ed.2d 1 (1967)(noting that the Sixth Amendment right to

speedy trial applies to states by incorporation under Due Process Clause of Fourteenth

Amendment). The Texas Constitution provides a similar protection which has been treated as co-

extensive with the federal protection. Tex. Const. art. I, § 10; Zamorano v. State, 84 S.W.3d 643,

648 (Tex.Crim.App. 2002). The right protects a defendant from “oppressive pretrial incarceration,

mitigates the anxiety and concern accompanying public accusations, and ensures that the defendant

can mount a defense.” Henson, 407 S.W.3d at 766, citing Barker, 407 U.S. 514, 532, 92 S.Ct.

2182, 33 L.Ed.2d 101 (1972).



                                                 3
          A speedy trial claim balances four factors: (1) the length of delay; (2) the reason for the

delay; (3) whether the defendant asserted the right to a speedy trial; and (4) any prejudice to the

defendant resulting from the delay. Gonzales v. State, 435 S.W.3d 801, 808 (Tex.Crim.App.

2014), citing Barker, 407 U.S. at 530, 92 S.Ct. at 2192. The first factor, however, is something of

a double factor. Before we balance all the factors, the accused is required to make a threshold

showing that the length of the delay was “presumptively prejudicial.” See Gonzales, 435 S.W.3d

at 808. The length of the delay is therefore a “triggering mechanism” for analysis of the remaining

Barker factors. Id. at 809; see also State v. Munoz, 991 S.W.2d 818, 821-22 (Tex.Crim.App.1999),

quoting Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 2691, 120 L.Ed.2d 520

(1992).

          When all the Barker factors are considered, no factor is either a necessary or sufficient

condition to the finding of a deprivation of a right to speedy trial. Johnson v. State, 954 S.W.2d

770, 772 (Tex.Crim.App. 1997), citing Barker, 407 U.S. at 533, 92 S.Ct. at 2193. Instead, these

factors are related and must be considered together with such other circumstances that may be

relevant. Johnson, 954 S.W.2d at 773. This balancing test requires weighing, case-by-case, “the

conduct of both the prosecution and the defendant.” Munoz, 991 S.W.2d at 821, quoting Barker,

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

          We apply a bifurcated standard of review to speedy-trial claims. Zamorano v. State, 84

S.W.3d 643, 648 (Tex.Crim.App. 2002).              The Barker factors necessarily involve fact

determinations and legal conclusions. Johnson, 954 S.W.2d at 771. We review the trial court’s

decision under “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; Palacios v. State, 225 S.W.3d 162, 167

(Tex.App.--El Paso 2005, pet. ref’d). “The balancing test as a whole, however, is a purely legal



                                                   4
question” Johnson, 954 S.W.2d at 771. When the facts are largely undisputed, the primary issue

for review is the legal significance of those facts. Zamorano, 84 S.W.3d at 648.

                                                     DISCUSSION

           The State’s primary argument claims that there was not a delay sufficient to raise a

presumption of prejudice, which obviates the need to examine all the Barker v. Wingo factors.

Whether there is a sufficient delay turns on what time periods should be considered as part of the

delay.3

                         The pre-indictment delay is not part of the consideration

           Suarez’ speedy trial motion contended that the clock started to run for calculating the delay

on December 6, 2008, the date of the alleged crime. That contention is clearly wrong.

           The right to a speedy trial attaches when a person “becomes an accused,” i.e., when he is

arrested or when he is charged. Henson, 407 S.W.3d at 767.4 Accordingly, a person who has not

yet been arrested or formally charged cannot seek protection under the Speedy Trial Clause, and

the State is not required “to discover, investigate, and accuse any person within any particular

period of time.” U.S. v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971).

Rather, “[a]ny delay between commission of the crime and indictment is controlled by the

applicable statute of limitations.” Kroll v. United States, 433 F.2d 1282, 1286 (5th Cir. 1970); see

also Marion, 404 U.S. at 322; 92 S.Ct. at 464 (statute of limitations is “the primary guarantee

against bringing overly stale criminal charges”)(internal quotations omitted); Moore v. State, 943

S.W.2d 127, 128 (Tex.App.--Austin 1997, pet. ref’d)(“The limit on preindictment delay is usually



3
 An a priori question is whether the trial court should have conducted any dispositive hearing until Suarez regained
competence. See TEX.CODE CRIM.PROC.ANN. art. 46B.004 (d) and (e)(West 2018)(noting that upon the court’s
determination of incompetency, “all other proceedings in the case” should be stayed, other than acting on the State’s
motion to dismiss). This issue was not raised below, and so we do not decide it here.
4
    Suarez agrees with this proposition in the brief filed with this Court.

                                                              5
set by the statute of limitations.”). Any pre-indictment delay might also be addressable on Fifth

Amendment due process grounds. Marion, 404 U.S. at 313, 92 S.Ct. at 459; State v. Krizan-

Wilson, 354 S.W.3d 808, 814 (Tex.Crim.App. 2011). But Suarez’s motion to dismiss below was

based solely on Sixth Amendment speedy trial grounds, and not on any statute of limitations, or

Fifth Amendment due process grounds.5

         Accordingly, we focus solely on a speedy trial clock running from May 4, 2016--the date

of the indictment. Henson, 407 S.W.3d at 767.

                    Did Suarez met the burden to show presumptive prejudice?

         The first Barker factor asks if the movant has shown a delay long enough to create a

presumption of some prejudice. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. To do so, Suarez is

required to show that the interval between accusation and trial crossed the threshold dividing

“ordinary” from “presumptively prejudicial” delay. Zamorano, 84 S.W.3d at 648-49, quoting

Doggett, 505 U.S. at 652, 112 S.Ct. at 2690. But given the “imprecision of the right to speedy

trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the

peculiar circumstances of the case.” Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192. For this inquiry,

the nature of the case is important. “[T]he delay that can be tolerated for an ordinary street crime

is considerably less than for a serious, complex conspiracy charge.” Id. at 531, 92 S.Ct. at 2192.

         The State argues that any delay ran only between May 4 (the date of indictment) and July

13 (the date Suarez was found incompetent), which totals 69 days. A necessary premise of the

argument is that the State had no ability to take Suarez to trial so long as he was incompetent. The


5
  In any event, for pre-indictment delay based on due process, the movant must show (1) substantial prejudice, and (2)
that the delay was an “intentional device used to gain a tactical advantage over the accused.” Krizan-Wilson, 354
S.W.3d at 814-15; see also Saul v. State, 510 S.W.3d 672, 686 (Tex.App.--El Paso 2016, pet. ref’d). We cannot infer
bad faith from the delay alone. Saul, 510 S.W.3d at 686. There was no evidence adduced as to the reason for the pre-
indictment delay, other than the State’s representation in a pleading that the child-victim delayed an outcry. Any
implied finding to the contrary is not supported by the record, and we decline to affirm the ruling below on an
unasserted and unsupported due process claim.

                                                          6
premise is a reasonable one, given that upon the court’s determination of incompetency, the Code

of Criminal Procedure requires that “all other proceedings in the case” should be stayed, other than

acting on the State’s motion to dismiss. See TEX.CODE CRIM.PROC.ANN. art. 46B.004 (d) and (e).

Moreover, this Court has held that periods of incompetence are not counted on the speedy trial

clock. Love v. State, 909 S.W.2d 930, 947-48 (Tex.App.--El Paso 1995, pet. ref’d). In Love, the

defendant’s trial was delayed in part for treatment to return him to competence. Id. We rejected

the defendant’s speedy trial claim, and cited to United States Supreme Court precedent stating that

periods of mental incompetence are not considered in a speedy trial inquiry. Dickey v. Florida,

398 U.S. 30, 48, 90 S.Ct. 1564, 1574, 26 L.Ed.2d 26 (1970)(noting that a “defendant may be

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

responsibility,” citing the example of “delay occasioned by his incompetence to stand trial”).

       A delay of only 69 days in an aggravated sexual assault of a child case is not presumptively

prejudicial, and would not trigger a full Barker analysis. While the time-period for presumptive

prejudice is determined on a case-by-case basis, no case has concluded a period as short as this

qualifies. Cantu v. State, 253 S.W.3d 273, 281 (Tex.Crim.App. 2008)(“There is no set time

element that triggers the analysis, but we have 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.’”).

       Suarez responds in part that the delay is longer than 69 days. He argues it extends from

the date of indictment to the date of the hearing which is just over nine months. Suarez discounts

any periods of his mental incompetence because the State must be charged with the delay in



                                                 7
transferring him to a psychiatric facility which could have restored his competence. By analogy,

a court does not excuse a delay caused by overcrowded court dockets. See Barker, 407 U.S. at

531, 92 S.Ct. at 2912 (noting that a delay caused by overcrowded courts should still count against

the State, though weighted less heavily). Suarez contends by the same token that overcrowded

mental wards cannot excuse a delay. And a nine month delay might implicate a period of

presumptive prejudice. See Doggett, 505 U.S. at 652 n.1, 112 S.Ct. at 2691 (“Depending on the

nature of the charges, the lower courts have generally found postaccusation delay ‘presumptively

prejudicial’ at least as it approaches one year.”); Dragoo v. State, 96 S.W.3d 308, 314

(Tex.Crim.App. 2003)(noting the same).

       While we appreciate the similarities between crowded court dockets, and crowded

psychiatric hospitals, we also note the differences. The State shoulders the burden of spending

adequate resources to provide the logistics of trying the criminal cases that it indicts. And certainly

when the State builds and staffs additional courts, it is guaranteed to increase its capacity to try

more cases. It is not unlike opening an additional check-stand in a grocery store. By contrast,

opening more beds in a psychiatric hospital does not guarantee that a defendant will ever gain

competence. It assures only that the defendant could be moved from the jail to the facility. Once

at the facility, the psychiatric outcome is a function of the defendant’s mental condition, perhaps

his or her own participation in the therapy, and the skill of the mental health provider. Suarez

assumes that had he been transferred to hospital, he would have been rehabilitated to a level of

competence. Nothing in our record would support that assumption. Nor does the record show

how long that process might have taken. Thus even accepting Suarez’s argument that delays in

transferring him to a hospital counts on the speedy trial clock, we cannot count all the time against




                                                  8
the State, and there is no evidence in the record to support any particular time to be counted against

the State.6

         Accordingly, we conclude that the only period of proven delay on this record amounts to

69 days which does not meet the initial burden of showing presumptive prejudice. Assuming

without deciding that the State can be charged with the delay in transferring Suarez to a psychiatric

hospital for treatment, there is no evidence in the record to support an implied finding that the total

period of delay is sufficient to demonstrate presumptive prejudice.

        Alternatively, consideration of the Barker factors do not support Suarez’ claim

         Even if we assumed that the record supported a finding of a delay sufficient to create

presumptive prejudice, a balancing of the Barker factors cuts against Suarez. As to factual

disputes, we defer to the trial court’s role as fact finder. But neither Suarez, nor the State presented

any evidence or testimony at the hearing below, nor did they attach any evidence to the motion or

response. Whatever facts play into this dispute are manifest from the clerk’s record. We therefore

engage in largely a de novo review.

         1. Length of delay.

         “When the length of delay stretches well beyond the bare minimum needed to trigger a full

Barker analysis, the length of a delay weighs against the State, and the longer the delay, the more

the defendant’s prejudice is compounded.” [Emphasis added]. Gonzales, 435 S.W.3d at 809,

citing Zamorano, 84 S.W.3d at 649. We have already explained why the delay here does not meet

the threshold to trigger a Barker analysis, and only through making several assumptions, does it




6
  At the hearing, the trial court asked the prosecutor to explain “the 211 days he spent incarcerated.” It was unclear
from the hearing how this particular length of delay was calculated, as it does not correspond to any significant event
following the date of indictment.

                                                          9
rise to the absolute lowest limit of the threshold. Accordingly, the delay is not well beyond the

minimum threshold, and this factor weighs in the State’s favor.

       2. Reason for delay.

       In assessing the significance of any delay, we must determine “whether the government or

the criminal defendant is more to blame for th[e] delay,” Doggett, 505 U.S. at 651, 112 S.Ct. at

2690. Different weight is accorded to delays based on the reason for the delay. Hopper v. State,

520 S.W.3d 915, 924 (Tex.Crim.App. 2017). For instance, a deliberate delay “to hamper the

defense” weighs heavily against the State. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. Yet a “more

neutral reason such as negligence or overcrowded courts” weigh less heavily “but nevertheless

should be considered since the ultimate responsibility for such circumstances must rest with the

government rather than with the defendant.” Id. A valid reason for the delay should not be

weighed against the government at all. Gonzales, 435 S.W.3d at 810 (“Unjustifiable reasons for

delay count towards the ‘length of delay,’ while justifiable reasons for delay do not.”); Munoz, 991

S.W.2d at 822. And a delay caused by the defendant might rise to the level of a waiver. Id.

       Analyzed in that light, not all of the time between indictment and the speedy trial hearing

would count, or if it counted, would it be weighted equally. Suarez’s counsel almost immediately

filed a motion for a mental examination, stating in the motion concerns with his client’s

competence. The State could hardly force a trial until the motion was acted upon. And once the

motion was granted, the State could hardly move to force a trial until Suarez was examined.

Accordingly, we do not count any of the time between the filing of the motion (May 25, 2016) and

the date of the commitment order (July 13, 2016) against the State. Once the commitment order

was signed, the State could not move to set the case for trial. And even assuming the State was

responsible for a delay in sending Suarez to a psychiatric hospital, the order contemplated that



                                                10
Suarez would be committed for 120 days. Accordingly, we do not count that three-month time

period against the State. In other words, we would not count the time that otherwise would be

attributed to Suarez’s mental condition under the ideal circumstances of the commitment order.

See Dickey, 398 U.S. at 48, 90 S.Ct. at 1574; Love, 909 S.W.2d at 947-48; Barnes v. State, 03-13-

00434-CR, 2016 WL 3917126, at *6 (Tex.App.--Austin July 13, 2016, pet. ref’d), cert. denied,

2018 WL 1786049 (U.S. Apr. 16, 2018)(mem. op., not designated for publication)(discounting

periods of time caused by defendant, including trial delays from the determination of, and

restoration of competency to stand trial).

        It also appears that sometime after December 14, 2016, Suarez was released on bond, but

taken by ICE, and either deported, or he agreed to go to Mexico. Nothing in the record shows how

the State of Texas after that date would have compelled Suarez to go to a treatment facility, or if

it could, how long the mechanics of such an effort might have taken. We therefore do not count

that time against the State. In summary, even if we were to assume that the delay period runs from

the date of indictment to the date of the hearing, after discounting periods that cannot be attributed

to the State, the remaining period of delay weighs in the State’s favor.

        3. Assertion of the right.

        In Barker, the Court explicitly rejected a strict “demand-waiver” rule that would effectively

toll the speedy trial clock until the defendant demanded a trial date. Barker, 407 U.S. at 528, 92

S.Ct. at 2190. A defendant has no duty to bring himself to trial; rather that is the State’s duty.

Cantu, 253 S.W.3d at 282-83. Yet a defendant has some responsibility to assert their rights. Id.

Accordingly, in Barker the Court concluded that “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.” Id.; see also Hopper, 520 S.W.3d at 924.



                                                  11
        In assessing the weight of this factor, we consider whether and how a defendant asserts the

speedy trial right. Cantu, 253 S.W.3d at 282-83. “Filing for a dismissal instead of a speedy trial

will generally weaken a speedy-trial claim because it shows a desire to have no trial instead of a

speedy one.” Id. “Repeated requests for a speedy trial weigh heavily in favor of the defendant,”

while the absence of those requests suggest the defendant seeks only a dismissal. Id.

        Our record shows that a few days shy of nine months following the indictment, Suarez’s

counsel filed a motion asserting his speedy trial rights. The motion sought “general relief.”

Twelve days later, counsel filed a second motion that sought dismissal of the indictment. The trial

court heard the motions two days later. Suarez at the time was apparently out of the country, and

nothing suggests he ever obtained any level of competence so as to participate in the proceedings.

These circumstances--late assertion of the right at a time when Suarez was not available or

competent for trial--if anything suggest the motion here sought dismissal rather than vindication

of the right. The factor is neutral or weighs against Suarez.

        4. Prejudice from the delay.

        The last factor is prejudice to the defendant. Barker, 407 U.S. at 532, 92 S.Ct. at 2193.

That prejudice can take several forms: (1) the burden of pretrial incarceration; (2) the anxiety and

concern of the accused (i.e. public scorn); and (3) impairing the ability to defend the case (i.e. lost

witnesses and fading recollections). Id. Prejudice to the defense’s case is the most important

consideration. Id. It is also the most difficult to prove, because lost memories are “not always

reflected in the record” and “what has been forgotten can rarely be shown.” Id.; see also Doggett,

505 U.S. at 655, 112 S.Ct. at 2693 (“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.”).



                                                  12
        Nonetheless, the defendant carries the burden to show prejudice. Cantu, 253 S.W.3d at

280. The defendant’s burden of proof on “[prejudice] ‘varies inversely’ with the State’s degree of

culpability for the delay.” Id. citing to Doggett, 505 U.S. at 657, 112 S.Ct. at 2693. “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, 253 S.W.3d at 280-81. Additionally, and to ameliorate a defendant’s burden, in a case of

extraordinary delay, the courts have excused the need for affirmative evidence of prejudice to the

defense’s case. Shaw v. State, 117 S.W.3d 883, 890 (Tex.Crim.App. 2003), citing Doggett, 505

U.S. at 655, 112 S.Ct. 2686. The courts excuse that need for affirmative evidence, however, when

the period of delay is measured in several years, and not, as here, in a matter of months. See

Gonzales, 435 S.W.3d at 812-15 (discussing federal cases with delays ranging from five to ten

years applying a presumption). In Gonzales, the court relieved the defendant of the burden of

affirmative evidence of prejudice to his defense based on a six-year delay. Id. The at most nine-

month delay here is not extraordinary and would not relieve Suarez of his burden to show actual

prejudice.

        Yet Suarez made no attempt to present any evidence of the three types of prejudice, other

than what is manifest from the record. We know only that Suarez was arrested on May 16, 2016

and released sometime after December 14, 2016. Some periods of delay are inevitable in the

criminal process. Doggett, 505 U.S. at 656, 112 S.Ct. at 2693 (“Our speedy trial standards

recognize that pretrial delay is often both inevitable and wholly justifiable.”). Some periods of

incarceration were specifically unavoidable in Suarez’s case owing to his mental state; he would

have been constrained either in a psychiatric facility or jail, no matter what actions the State

undertook. When the State was unable to place Suarez in a psychiatric facility, the trial court



                                                   13
reduced his bond, allowing for his release. Any prejudice from pretrial incarceration only

marginally weighs in favor of Suarez.

        Nor did Suarez present any evidence as to how the pendency of the charges affected him,

or whether he even appreciated that he was being charged with a crime. This type of prejudice is

neutral at best on the record before us.

        Suarez presented no evidence of any actual harm to his defense from the delay. He did

not, for instance, show that any witnesses were lost in the nine months following the indictment,

as distinct from the eight years between the time of the crime and the indictment. Moreover, delay

can either help or hurt the defendant. Barker, 407 U.S. at 521, 92 S.Ct. at 2187. Nothing in the

record would support a finding that the delay necessarily worked a detriment, as opposed to a

benefit on the merits defense of the case. The record at most would support an implied finding

that the prejudice element is effectively neutral.

        We conclude that even if a full consideration of the Barker factors is warranted, the balance

of the factors are essentially neutral to somewhat in the State’s favor, and do not justify dismissal

of the serious charge indicted below. We grant the State’s single issue on appeal.

                                               CONCLUSION

        We can sympathize with a trial judge who, wishing to move the docket, cannot convince a

State psychiatric hospital to open up bed space.7 The situation is compounded by a defendant who,


7
 The situation is unfortunately not unique. A December 2016 report by the Texas Council of Community Centers
noted:
         From 1964 to 2016, the Texas population rose from 10.3 to 28.2 million people, almost tripling in
         just over fifty years. Despite astounding population growth, the number of inpatient psychiatric
         beds in Texas State Hospitals shrank by almost 80% during this time, from 14,921 to 3,013 beds.
         Demand for both forensic and civil psychiatric beds far outpaces current State Hospital system
         capacity, placing severe strain on local communities, jails and hospital systems. . . . Lack of
         inpatient psychiatric bed capacity in State Hospitals creates a host of issues, including a growing
         backlog of individuals in county jails waiting for court-ordered forensic services, and inappropriate
         stays in emergency rooms, extended observations units, crisis stabilization units and local private
         psychiatric hospitals. When State Hospitals are full and an alternate private psychiatric bed is either

                                                       14
in the twilight of his years, sits in jail and once bonded out, finds himself across the international

border. It would be tempting--for all concerned--to dispose of the case on some procedural ground.

Yet we are constrained by the law, and particularly the requirement to show prejudice under the

Barker v. Wingo test. None is shown on this record, and we accordingly reverse the trial court’s

dismissal and remand the case.



August 31, 2018
                                            ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




        not available or is unable to provide the clinically appropriate level of care, people remain in the
        community without needed intervention and cycle into emergency rooms or jails.

http://txcouncil.com/wp-content/uploads/2016/12/Inpatient-Psychiatric-Care-Issue-Brief-121616-Updated-
12417.pdf (last visited May 3, 2018).

                                                        15
