REVERSE AND REMAND and Opinion Filed April 7, 2020




                                     S  In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                  No. 05-19-00809-CR

                       THE STATE OF TEXAS, Appellant
                                   V.
                       ANGELA MARIE MILLS, Appellee

                 On Appeal from the County Court at Law No. 2
                           Kaufman County, Texas
                    Trial Court Cause No. 17-80129-CC2-F

                          MEMORANDUM OPINION

                 Before Justices Myers, Whitehill, and Pedersen, III
                            Opinion by Justice Whitehill

      Appellee Angela Marie Mills was indicted for driving while intoxicated with

a child under fifteen. About twenty-four months after appellee’s arrest, the trial court

granted her motion to set aside the indictment because her speedy trial right was

violated. The State appealed and argues in one issue that the trial court erred.

Appellee has not filed a brief.
      We reverse because appellee did not seek a speedy trial in the trial court and

did not demonstrate prejudice from the delay. These facts outweigh the other

relevant speedy trial factors, namely the length of and reasons for the delay.

                                 I. BACKGROUND

      We draw these facts from the clerk’s record and the June 21, 2019 dismissal

motion hearing reporter’s record.

      Appellee was arrested for this offense in June 2017 and spent one night in jail.

      She was indicted on September 11, 2017.

      Her lawyer filed an appearance two weeks later.

      The trial court’s fact findings recite that the parties agreed to reset pre-trial

and announcement settings scheduled for the following dates:

      October 11, 2017 (pre-trial setting)
      November 16, 2017 (pre-trial announcement setting)
      January 10, 2018 (pre-trial announcement setting)
      February 14, 2018 (pre-trial announcement setting)
      March 28, 2018 (pre-trial announcement setting)

      On March 28, 2018, counsel for both sides signed a pass slip resetting the

announcements for May 9, 2018. But the May 9, 2018 setting was canceled because

the judge was unavailable.

      At a June 13, 2018 announcement setting, both sides signed a pass slip setting

the case for trial on October 29, 2018. But on October 9, 2018, appellee filed a

continuance motion because her lawyer had recently moved his office and also had



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a conflicting trial setting. Two days later the trial court granted the continuance and

set the case for jury trial on January 14, 2019.

        The trial judge’s docket sheet reflects that both sides announced ready for the

January 14 trial setting, but the case had to be reset because not enough jurors

appeared. The case was reset for jury trial to begin on February 25, 2019.

        The judge’s docket sheet reflects that the February 25, 2019 trial ended in a

mistrial “due to 2 jurors absent.” At the dismissal motion hearing, appellee’s lawyer

said without contradiction that one juror had a heart attack and a different juror’s

spouse had a heart attack after the trial started.1 The trial was reset for March 25,

2019.

        On March 5, 2019, the State moved for a continuance based on a witness’s

unavailability. The motion recites that appellee was unopposed to the continuance.

The trial judge granted the motion and reset the trial for April 15, 2019.

        The April 15, 2019 trial ended in a mistrial. The judge’s docket sheet reflects

that the mistrial was “due to juror unavailability after jury chosen & sworn in.” At

the dismissal motion hearing, appellee’s lawyer said without contradiction that the

problem arose because jury selection went long, two jurors couldn’t stay past 5:00

that day, and the State’s toxicologist couldn’t come back to testify the next day. The

trial was reset for July 1, 2019, and both sides signed the pass slip reflecting the new


    1
     The court of criminal appeals has considered counsel’s factual statements to the trial court in weighing
speedy trial claims. See Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003).
                                                    –3–
setting. Moreover, the trial court found that neither side objected to the mistrial and

both sides agreed to reset the trial.

      On June 20, 2019, appellee filed her motion to set aside the indictment

because she had not gotten a speedy trial. The trial judge heard the motion the next

day. Appellee testified that she had been “diagnosed with anxiety” before this case

began and that “this case and the length of it and the fact that we’ve had to prepare

four times for trial” caused her additional anxiety. She saw her doctor and adjusted

her medications. Additionally, her added anxiety was causing marital problems for

appellee and her husband. And she was experiencing financial hardship because her

lawyer charged her more money each time he prepared for trial. Every time her case

was discussed before a new jury, she experienced humiliation or embarrassment as

well as increased anxiety.

      On cross-examination, appellee said that she didn’t think she was planning to

call any witnesses at trial. She also said she never asked her lawyer to seek an earlier

trial date on the occasions when the case was set for trial, but she didn’t think she

was allowed to.

      Appellee’s lawyer said without contradiction that it took over a year for the

results of appellee’s blood test to come back from the laboratory. The trial court

found that “[t]he Department of Public Safety took too long to test Defendant’s

seized blood.”



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      The trial judge granted appellee’s motion to set aside the indictment and later

signed the State’s proposed fact findings and legal conclusions.

      The State timely appealed. See TEX. CODE CRIM. PROC. art. 44.01(a)(1).

                 II. APPLICABLE LAW AND STANDARD OF REVIEW

      The federal and Texas constitutions guarantee an accused the right to a speedy

trial. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; cf. TEX. CODE CRIM.

PROC. art. 1.05.      The right protects the defendant from oppressive pretrial

incarceration, the anxiety accompanying public accusation, and impairment to her

defense. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).

       Although the state and federal guarantees are distinct, they involve the same

factors. See id. at 280 n.16. We weigh and balance (i) the delay’s length, (ii) the

reasons for the delay, (iii) the assertion of the right, and (iv) prejudice to the accused.

See State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999) (discussing Barker

v. Wingo, 407 U.S. 514 (1972)). We must consider both sides’ conduct in our

analysis. Id. No single factor is a necessary or sufficient condition to finding a

speedy trial violation. Id.

      The proper remedy for a speedy trial violation is dismissal without prejudice.

Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App. 2003).

      We use a bifurcated standard of review. We apply an abuse of discretion

standard to the factual components of the trial court’s ruling and a de novo standard

to its legal components. Munoz, 991 S.W.2d at 821. We give almost total deference

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to historical fact findings that the record supports. State v. Thomas, 453 S.W.3d 1,

3 (Tex. App.—Dallas 2014, no pet.) (mem. op.). Applying the balancing test as a

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

                                    III. ANALYSIS

      The State’s sole issue argues that the trial court erred by granting appellee’s

motion and dismissing the indictment. We agree based on our analysis of the

relevant factors below.

A.    The delay’s length favors appellee.
      The first factor is, to some extent, a triggering mechanism because a speedy

trial claim will not be heard until a prima facie unreasonable time period has passed.

Shaw, 117 S.W.3d at 889. We measure the delay from the time the defendant is

arrested or formally accused. Id. Generally, a delay approaching one year is

sufficient to trigger a speedy trial inquiry. Id.

      Here, appellee was arrested in June 2017. After that, about fifteen months

passed before her first trial setting (October 2018) and about twenty-five months

would have passed had her last trial setting (July 2019) been reached. See State v.

Manley, 220 S.W.3d 116, 122 (Tex. App.—Waco 2007, no pet.) (the clock runs until

the beginning of the trial that ends the case). The State concedes that the first factor

is satisfied, and we agree. Thus, the first factor weighs in appellee’s favor.




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B.     The reasons for the delay slightly favor appellee.
       The State bears the burden of justifying the delay. Shaw, 117 S.W.3d at 889

n.3.

       We assign different weights to different reasons for delay. Id. at 889. Some

reasons are valid and serve to justify the delay, while others are invalid and do not

justify the delay. Id. Generally, deliberate delays to hamper the defense weigh

heavily against the State, delays due to negligence or overcrowded courts weigh less

heavily against the State, and delays for valid reasons do not weigh against the State

at all. Munoz, 991 S.W.2d at 822 & n.1. If no reason is given for a period of delay,

the period weighs against the State, but not heavily. Dragoo v. State, 96 S.W.3d

308, 314 (Tex. Crim. App. 2003).

       The State is entitled to a reasonable period of time to prepare its case, and that

time doesn’t count against the State. See, e.g., Shaw, 117 S.W.3d at 889–90 (three

months from indictment to first trial didn’t count against the State). Delays by

mutual agreement don’t weigh against either side Herrera v. State, No. 05-15-

00119-CR, 2016 WL 3098699, at *4 (Tex. App.—Dallas May 23, 2016, no pet.)

(mem. op., not designated for publication). Delays for good faith plea negotiations

are valid and do not weigh against the State. Munoz, 991 S.W.2d at 824. A delay

for a missing witness is also valid. Coy v. State, No. 05-15-00011-CR, 2016 WL

1705153, at *4 (Tex. App.—Dallas Apr. 26, 2016, no pet.) (mem. op., not designated

for publication).

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      We now apply the law to the facts:

           Time period               Reason for delay                  Weight
June 2017 – Sept. 2017                    None                Slightly against the State
(arrest to indictment)
(three months)
Sept. 2017 – Oct. 2017                      None              Slightly against the State
(indictment to first pre-trial
setting)
(one month)
Oct. 2017 – May 2018                   By agreement                    None
(first pre-trial setting to sixth                              (delay by agreement)
pre-trial announcements
setting)
(about seven months)
May 2018 – June 2018                 Judge unavailable        Slightly against the State
(sixth announcements setting                                   (if treated as similar to
to seventh announcements                                        overcrowded docket
setting)                                                              condition)
(one month)
June 2018 – Oct. 2018                  By agreement                    None
(seventh announcements                                         (delay by agreement)
setting to first trial setting)
(four months)
Oct. 2018 – Jan. 2019                    Appellee’s               Against appellee
(first trial setting to second          continuance
trial setting)
(three months)
Jan. 2019 – Feb. 2019                 Insufficient jury       Slightly against the State
(second trial setting to third      venire at second trial     (if treated as similar to
trial setting)                             setting               overcrowded docket
(about six weeks)                                                     condition)
Feb. 2019 – Mar. 2019               Mistrial at third trial              None
(third trial setting to fourth       setting because of        (valid reason for delay)
trial setting)                        jurors’ personal
(one month)                                issues
Mar. 2019 – April 2019              State’s unopposed                   None
(fourth trial setting to fifth        continuance for         (valid reason for delay)
trial setting)                        missing witness
(less than one month)

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 April 2019 – July 2019                Mistrial at fifth trial          None
 (fifth trial setting to sixth trial   setting because of      (delay by agreement)
 setting)                              jurors’ scheduling
 (about six weeks)                          conflicts
 June 2019                              Appellee filed motion to set aside indictment


       In summary, the delay from appellee’s arrest until the last trial setting (which

wasn’t reached because of appellee’s dismissal motion) was about twenty-five

months, of which at most six and a half months should be weighed slightly against

the State and three months were caused by appellee’s own continuance motion.

Valid reasons justified the remaining delays, so they do not weigh against either side.

       Based on all the circumstances, and giving appellee the benefit of the doubt,

we conclude that this factor weighs slightly against the State.

C.     Appellee’s failure to seek a speedy trial weighs against her.

       The defendant has the burden of proving that she asserted her speedy trial

right. Cantu, 253 S.W.3d at 280. The defendant’s burden of showing diligence

diminishes in proportion to the State’s culpability for the delay. Id. at 281–81.

       Here, the State’s culpability is slight, so appellee’s burden to show that she

diligently asserted her speedy trial right is only slightly reduced.

       Failure to seek a speedy trial makes it difficult for a defendant to prevail on a

speedy trial claim because that failure strongly indicates that she didn’t really want

a speedy trial and wasn’t prejudiced by not having one. Shaw, 117 S.W.3d at 890.

Moreover, seeking dismissal instead of a speedy trial generally weakens a speedy


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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 doesn’t seek a speedy trial before seeking

dismissal, she should provide cogent reasons for this failure. Id.

      Here, about thirteen months passed between appellee’s September 2017

indictment and her October 2018 initial trial setting. The record doesn’t show any

efforts by appellee to obtain a speedy trial during that time. Nor does it show any

reason for her failure except her testimony that she didn’t know she could ask for a

trial. The trial court found that appellee agreed to numerous resettings of the pretrial

announcements, and she moved to continue the initial trial setting. That continuance

motion led to a further three-month delay.

      We conclude that appellee’s failure to seek a speedy trial during the thirteen

months between her indictment and first trial setting means that the third factor

weighs against her. See Shaw, 117 S.W.3d at 890. Given that there were three

unsuccessful attempts to try the case in January, February, and April 2019, and the

case was then reset for July, appellee’s failure to actively seek a trial during that time

period is excusable. But her June 2019 request for dismissal without ever having

sought a speedy trial further weakens her speedy trial claim. See Cantu, 253 S.W.3d

at 283.

      Based on all these circumstances, we conclude that the third factor weighs

against appellee.



                                          –10–
D.    Appellee’s weak prejudice showing weighs against her.
      The defendant has the burden of proving prejudice from the delay. Id. at 280.

The defendant’s burden of showing prejudice diminishes in proportion to the State’s

culpability for the delay. Id. at 281–81. Here, the State’s culpability is slight, so

appellee’s burden to show prejudice is only slightly reduced.

      The prejudice factor focuses on three interests: (i) preventing oppressive

pretrial incarceration, (ii) minimizing the defendant’s anxiety and concern, and (iii)

limiting the possibility that the defense will be impaired. Munoz, 991 S.W.2d at 826.

The last interest is the most serious. Id.

      Appellee admitted she spent only one night in jail, so oppressive pretrial

incarceration is not an issue here. Similarly, appellee adduced no evidence that the

delay impaired her defense, which is the most serious subfactor.

      As for anxiety, “evidence of generalized anxiety, though relevant, is not

sufficient proof of prejudice under the Barker test, especially when it is no greater

anxiety or concern beyond the level normally associated with a criminal charge or

investigation.” Cantu, 253 S.W.3d at 286 (footnote omitted).

      Here, appellee said that she suffered from anxiety even before her arrest, had

to adjust her medications after her arrest, and suffered some marital problems. But

without substantiating details, we conclude that her conclusory testimony didn’t

show anxiety beyond that normally associated with being criminally prosecuted.



                                         –11–
Additionally, appellee didn’t distinguish any anxiety problems that were caused

specifically by the delay from those caused by the case more generally.

      Appellee also said that she had experienced financial hardship because her

lawyer charged her additional money every time the case was called for trial. But

again, she did not elaborate on this conclusory testimony, so it is not strong evidence

of prejudice.

      In sum, appellee’s prejudice showing was weak, which weighs strongly

against her speedy trial claim.

E.    Conclusion

      Although the delay was long enough to trigger a speedy trial analysis and the

reasons for the delay weigh slightly against the State, the other factors weigh against

appellee. Nothing in the record shows that appellee wanted a speedy trial; she

wanted only a dismissal. And she showed no “substantial personal or defense

prejudice resulting from the State’s delay.” Cantu, 253 S.W.3d at 286. Accordingly,

we conclude that the trial court erred by granting appellee’s motion. See Dragoo,

96 S.W.3d at 316 (rejecting speedy trial claim where factors weighed similarly).




                                        –12–
                                 IV. CONCLUSION

      We sustain the State’s issue, reverse the trial court’s order granting appellee’s

motion to set aside indictment, and remand the case for further proceedings

consistent with this opinion.




                                           /Bill Whitehill/
                                           BILL WHITEHILL
                                           JUSTICE

Do Not Publish
Tex. R. App. P. 47.2(b)
190809F.U05




                                        –13–
                                  S
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                 JUDGMENT

THE STATE OF TEXAS, Appellant                On Appeal from the County Court at
                                             Law No. 2, Kaufman County, Texas
No. 05-19-00809-CR          V.               Trial Court Cause No. 17-80129-
                                             CC2-F.
ANGELA MARIE MILLS, Appellee                 Opinion delivered by Justice
                                             Whitehill. Justices Myers and
                                             Pedersen, III participating.

      Based on the Court’s opinion of this date, the trial court’s order granting
appellee Angela Marie Mills’s motion to set aside the indictment is REVERSED
and the case is REMANDED for further proceedings consistent with the opinion.


Judgment entered this April 7, 2020




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