           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-1313-13



                            LIONEL GONZALES, Appellant

                                             v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FOURTH COURT OF APPEALS
                            BEXAR COUNTY

        H ERVEY, J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, J OHNSON, K EASLER, C OCHRAN, and A LCALA, JJ, joined. K ELLER, P.J.,
filed a dissenting opinion.

                                      OPINION

       We granted the State’s petition to review the opinion of the court of appeals on

remand finding that Appellant’s right to a speedy trial was violated. The court of appeals

held that Appellant’s right to a speedy trial was violated because the factors laid out by

the United States Supreme Court to assess speedy-trial claims favored Appellant. It also

held that the State failed to persuasively rebut the presumption of prejudice or prove that
                                                                                    Gonzales–2

Appellant acquiesced to the “extraordinary” delay in this case. See Gonzales v. State, No.

04–11–00405–CR, 2013 WL 4500656, at *7 (Tex. App.—San Antonio Aug. 21, 2013)

(mem. op.) (not designated for publication). We will affirm the judgment of the court of

appeals.

                                   P ROCEDURAL HISTORY

       Appellant, Lionel Gonzales, was indicted on March 17, 2004 for injury to a child

and indecency with a child. An arrest warrant was issued following the indictment. The

alleged incident from which the charges stemmed was alleged to have occurred on

November 27, 2002. Appellant was not arrested on those charges until April 21,

2010—approximately six years after he was indicted and the arrest warrant was issued.

After his arrest, Appellant filed a pretrial motion to dismiss the indictment for lack of a

speedy trial, which the trial court denied. Appellant then pled no contest to the injury-to-

a-child offense1 and was placed on deferred-adjudication community supervision for five

years and fined $1,500.

       Appellant timely appealed the trial court’s denial of his speedy-trial motion, but

the court of appeals affirmed the judgment of the trial court. See Gonzales v. State, No.

04–11–00405–CR, 2012 WL 1364981 (Tex. App.—San Antonio Apr. 18, 2012) (mem.

op.) (not designated for publication). Appellant then filed a petition for discretionary

review. After granting Appellant’s petition, we reversed the judgment of the court of

       1
        The record shows that Appellant’s plea-bargain agreement applied only to the injury-to-a
child count and that the State ultimately did not pursue the indecency-with-a-child count.
                                                                                            Gonzales–3

appeals and remanded the case for the court to reanalyze Appellant’s speedy-trial claim

under the correct prejudice standard. See Gonzales v. State, No. PD-0724-12, 2013 WL

765575, at *1 (Tex. Crim. App. Feb. 27, 2013) (not designated for publication).

       On remand, the court of appeals held that all four of the factors identified by the

United States Supreme Court to be weighed in a speedy-trial analysis favored Appellant.

See Gonzales, 2013 WL 4500656, at *7. Also, in reference to our opinion on remand, the

court of appeals held that the State failed to persuasively rebut the presumption of

prejudice or prove that Appellant acquiesced to the delay. Id. Therefore, the court of

appeals reversed the trial court’s denial of Appellant’s speedy-trial motion and ordered

that the indictment be dismissed with prejudice. Id. The State filed a petition for

discretionary review with this Court asking us to review the judgment of the court of

appeals in favor of Appellant, which was granted on four grounds.2


       2
           The precise grounds upon which we granted the State’s petition for discretionary review
are,

       (1) The court of appeals did not give appropriate deference to the trial court on
       matters of historical fact;

       (2) The court of appeals failed to review the trial record for evidence of
       extenuation. Specifically, the court of appeals failed to consider the trial court’s
       express and implied findings that Appellant was avoiding law enforcement—a
       finding supported by evidence that Appellant stopped reporting for his DWI
       probation and allowed his driver’s license to expire;

       (3) The court of appeals erred in its conclusion that the State failed to rebut the
       presumption of prejudice; and

       (4) The court of appeals did not properly weigh and balance the Barker factors in
       light of the trial court’s findings of fact. Specifically, the court of appeals failed to
                                                                                     Gonzales–4

                                T HE SPEEDY-TRIAL HEARING

       A month after Appellant was arrested, he filed a motion to dismiss the indictment

claiming that the State violated his constitutional right to a speedy trial. The trial court

held a hearing on Appellant’s motion to dismiss at which two witnesses

testified—Appellant and his mother.

       Appellant testified that he did not know about the indictment until he was arrested,

that he had been living at the same address with his parents during the entire time period

between the date of the alleged incident and Appellant’s eventual arrest six years later,

and that he could not “really remember much” about the alleged incident. He did,

however, state that he remembered his parents meeting with some detectives, but he

thought that “the cops would come and talk to me if they had any issues with me. I didn’t

think they would go and talk to my parents before they would talk to me first if I allegedly

did something.” On recross-examination, the State elicited testimony from Appellant that

he had been charged with driving while intoxicated (“DWI”) and that he had not renewed

his driver’s license after it expired in 2007 because he no longer had a car. Later, the State

recalled Appellant to the stand and asked Appellant if he had an outstanding motion to

revoke his community supervision in connection with his DWI from 2003. Appellant

stated that he was made aware he had an outstanding motion to revoke while he was

being booked for his 2006 arrest. He claimed that he “didn’t remember that [he] had an


       balance the State’s negligence in executing Appellant’s arrest warrant with
       Appellant’s own conduct in avoiding law enforcement.
                                                                                    Gonzales–5

MTR . . . [,]” but he also stated, “they never came to see [him] for [the motion to revoke

community supervision] either and [he] lived at the same place. They never came. I

figured they’d come and get me if they wanted to.”

       Appellant’s mother testified that her son has always lived with her and that she did

recall someone speaking to her about the alleged incident with M.C. However, she could

not remember when the officer came to see her. She further testified that she eventually

went to the police station with her husband to speak to the officer, but that the officer

only asked them a couple of questions, which she could not answer. When asked if the

officer told her that charges would be filed against her son, she stated that the officer told

her that “he was gathering information to see if, in fact, he had a case,” but Appellant’s

parents never heard anything else from the officer or about the alleged incident. Appellant

also elicited testimony that his father is not in good health after he had a third heart attack

sometime after meeting with the officer, and that, as a result of his third heart attack, he

now suffers from memory loss and doctors had to implant a defibrillator into his chest. As

for the alleged incident involving M.C., Appellant’s mother testified that she only

“vaguely” remembered the alleged incident, and that she did not learn about the charges

against her son until he was arrested.

       On cross-examination, the State showed Appellant’s mother a notarized statement

signed in August 2003 and asked her to look at a specific portion of the statement. Then

the following exchange occurred,
                                                                                  Gonzales–6

       [WITNESS:] No. He asked me that. He told me, did you see the girl that
       had blood. He rewrote that statement two times before he got it right. And
       even then he didn’t write it right.

       [STATE:] But you signed this?

       [WITNESS:] I felt that he was tricking me.

She did, however, admit that she signed the notarized statement and agreed that reading

the report helped her to recall “some of the events that occurred that night” and that there

were some facts that she could testify to if Appellant went to trial. On redirect, however,

she testified that, other than what was in the statement the State provided to her, she had

no independent recollection of the events that night. She also gave unobjected-to

testimony that her husband told her that he did not remember the alleged incident either.

On recross-examination by the State, Appellant’s mother was asked if she was correct in

her statement on redirect that she did not see anything the night of the alleged incident

that would substantiate the charge, and the following exchange took place:

       [WITNESS:] No.

       [STATE:] But you just said you saw blood coming from the girl’s --

       [WITNESS:] I didn’t say that. He told me, did you see blood.

       [STATE:] And you said?

       [WITNESS:] I said no, she had her sweater like this.
                     (Witness indicating with the arm bent at the elbow covering
       the witness’s face)

       [STATE:] So you are saying that the officer lied?
                                                                                          Gonzales–7

       [WITNESS:] Well --

       [STATE:] And made you sign this statement that was false?

       [WITNESS:] No.

       [STATE:] So you did see some blood and you did believe the girl was
       bleeding?

       [WITNESS:] I don’t remember.

                                          *       *        *

       [STATE:] You don’t remember now?

       [WITNESS:] No.

       The State did not present any witnesses3 or evidence at the hearing and conceded

to the trial court that it could not explain why it took six years to execute the arrest

warrant for Appellant. Nonetheless, the State argued in closing that, Appellant, who had

an outstanding warrant for a DWI community-supervision violation, did not renew his

driver’s license after it expired in 2007 because “a warrant would have popped up and he

would have been arrested for [the alleged incident with M.C.] at that time as well.” The

State also asserted that “it’s pretty convenient for everybody to come forward now that

[Appellant] has been arrested for this case and say, well, we forgot everything.” Finally,

the State implied that Appellant should have known that he could have been charged and



       3
          The State argues in a footnote that it intended to call Appellant’s father to the stand, and
it cites a portion of the speedy-trial-hearing transcript to support that assertion. However, that
portion of the record reflects that the State claimed to have subpoenaed both parents on May 5,
2010, but never explained why the father was not called as a witness if he was available.
                                                                                     Gonzales–8

that it “seems preposterous” that Appellant’s parents “wouldn’t take the time out of their

day in the past six or seven years just to tell [Appellant], hey, some police officers talked

to us about that girl that was in our house[.]”

       In Appellant’s closing arguments, he reiterated that he asserted his right to a

speedy trial at his earliest opportunity and that “[i]t’s really not [Appellant’s] duty to call,

to find out, you know, if there’s a warrant on him or not.” He also pointed out that he has

resided at the same address with his parents his entire life. The State also briefly

responded to Appellant’s closing argument that the filed indictment correctly listed

Appellant’s address, and “[i]t would stand to reason that the indictment was mailed to that

address at some point after the indictment. It also would stand to reason that [Appellant]

knew that he was on [community supervision] on a DWI and had a[] [motion to revoke

community supervision] for [the DWI] at some point and just basically failed to show for

either one of them.”

       After an unspecified length of time, the trial court went back on the record and

asked the State and Appellant some clarifying questions. First, the judge wanted to know

whether the State had an explanation for the delay; the State answered that it did not.

Second, the judge asked Appellant what prejudice he was specifically alleging, and

Appellant responded that the length of delay had placed him in a position in which the

only two witnesses that could possibly testify for him could not independently remember

the alleged incident. The court then asked Appellant if he knew about an outstanding
                                                                                         Gonzales–9

warrant stemming from the motion to revoke his probation predating the indictment at

issue. Appellant eventually responded that he was aware that his community supervision

had been “withdrawn and terminated unsatisfactorily . . . .” The State also told the court

that it could have a witness that was present when the arrest warrant was executed to

testify that Appellant was also charged with evading arrest when he was arrested.

Appellant conceded that he was being charged with evading arrest, but he argued that the

evading charge was irrelevant to his speedy-trial issue. The court responded that “the

State’s argument [is] that the defendant is not being truthful when he states that he was

unaware of potential charges and that he didn’t make himself somehow or another

available for the opportunity for an arrest[.] Isn’t that the argument?” Appellant

responded yes, however, the burden is on the State “to bring this case to trial, so if [the

State] waited six years to up and get him . . . that still . . . goes back six years. [I]t’s still a

cap of six years.”

       Ultimately, the trial court denied Appellant’s motion to dismiss and subsequently

issued findings of fact and conclusions of law explaining why it did so.

                                           D ISCUSSION

       The Sixth Amendment to the United States Constitution, made applicable to the

States through the Fourteenth Amendment, guarantees a speedy trial to an accused. See

U.S. C ONST. amend VI; see Kloper v. North Carolina, 386 U.S. 213 (1967) (identifying

the right to a speedy trial as fundamental and holding that it is applicable to the states
                                                                                    Gonzales–10

through the Due Process Clause of the Fourteenth Amendment). The plain language of

the Sixth Amendment limits the applicability of the Speedy Trial Clause only to an

accused. United States v. Marion, 404 U.S. 307, 313 (1971). Thus, a person who has not

yet been formally charged cannot seek protection from the Speedy Trial Clause, and the

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

period of time.” Id. at 313, 320. 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).4

       In addressing a speedy-trial claim, the Supreme Court has laid out four factors that

a court should consider: (1) the length of delay, (2) the State’s reason for the delay, (3) the

defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant

because of the length of delay. See Barker v. Wingo, 407 U.S. 514, 530 (1972). However,

before a court engages in an analysis of each Barker factor, the accused must first make a

threshold showing that “the interval between accusation and trial has crossed the

threshold dividing ordinary from ‘presumptively prejudicial’ delay.” See Doggett, 505

U.S. at 651–52. This Court has reiterated that “presumptive prejudice” “simply marks the

point at which courts deem the delay unreasonable enough to trigger [further] enquiry.”

State v. Munoz, 991 S.W.2d 818, 821–22 (Tex. Crim. App. 1999) (quoting Doggett v.



       4
        But see United States v. Crouch, 84 F.3d 1497 (5th Cir. 1996) (stating that preindictment
delay can violate a person’s right to due process of law if the State intentionally delayed
indictment to cause the person substantial and actual prejudice to gain a tactical advantage).
                                                                                 Gonzales–11

United States, 505 U.S. 647, 652 n.1 (1992)); see Harris v. State, 827 S.W.2d 949, 956

(Tex. Crim. App. 1992) (assuming that a 13-month delay was prima facie unreasonable

under the circumstances). Thus, if the State prosecuted the accused with “customary

promptness,” the accused has failed to meet the threshold burden, but if the defendant can

make a threshold showing of presumptive prejudice, a court must then proceed to

consider each of the remaining Barker factors and weigh them. Munoz, 991 S.W.2d 818

at 821–22.

       When reviewing an application of the Barker test, a reviewing court uses the same

burden of proof allocation as in the context of a motion to suppress. See Kelly v. State,

163 S.W.3d 722, 726 (Tex. Crim. App. 2005). That is, we give almost total deference to

historical findings of fact of the trial court that the record supports and draw reasonable

inferences from those facts necessary to support the trial court’s findings, but we review

de novo whether there was sufficient presumptive prejudice to proceed to a Barker

analysis and the weighing of the Barker factors, which are legal questions. Id.; see

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Johnson v. State, 954

S.W.2d 770, 771 (Tex. Crim. App. 1997). In addition, a reviewing court should not

consider in its deliberations record evidence that was not before the trial court when it

made its ruling. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003); see

also Pierson v. State, 426 S.W.3d 763, 771 (Tex. Crim. App. 2014).

                                         A NALYSIS
                                                                                  Gonzales–12

A. Presumptive prejudice and length of delay

       To consider the length of delay, we must first calculate the delay. The length of the

delay is measured from the time the accused is arrested or formally accused. See United

States v. Marion, 404 U.S. 307, 313 (1971). 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,5 and the longer the delay, the more the defendant’s prejudice is

compounded. This is because “the presumption that pretrial delay has prejudiced the

accused intensifies over time.” Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App.

2002) (quoting Doggett, 505 U.S. at 652).

       In this case, the trial court found that there was a six-year delay between

Appellant’s formal accusation by indictment and his arrest. Thus, the trial court

concluded that there was presumptive prejudice, a full Barker analysis should be

undertaken, and the length of delay weighed in favor of Appellant. The court of appeals

agreed with the trial court that Appellant had established presumptive prejudice and that

the length of delay weighed in favor of Appellant. And it noted that the State did not

contest that the length of time from Appellant’s indictment to his arrest was sufficient to

trigger a full Barker analysis. See Gonzales, 2013 WL 4500656, at *4. After deferring to

the findings of fact by the trial court that the State delayed six years, which is supported

by the record, we conclude that the delay was more than adequate to find presumptive



       5
           Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002).
                                                                                  Gonzales–13

prejudice and trigger a full Barker analysis. See Harris, 827 S.W.2d at 956. We also note

that the length of delay extended far beyond the minimum amount of time required to

trigger a full Barker analysis, and as a result, “this factor—in and of itself—weighs

heavily against the State.” Zamorano, 84 S.W.3d at 649.

B. The reason for the State’s delay

       This factor looks to “the reason the [State] assigns to justify the delay.” See

Barker, 407 U.S. at 531. When assessing the reasons for delay, we assign different

weights to different reasons. See Zamorano, 84 S.W.3d at 649. For example,

       A deliberate attempt to delay the trial in order to hamper the defense should
       be weighted heavily against the government. A more neutral reason such as
       negligence or overcrowded courts should be weighted less heavily but
       nevertheless should be considered since the ultimate responsibility for such
       circumstances must rest with the government rather than with the
       defendant. Finally, a valid reason, such as a missing witness, should serve
       to justify appropriate delay.

Id. (footnote omitted). As indicated, the length of delay can be further subdivided into

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

See Barker, 407 U.S. at 531–32. Unjustifiable reasons for delay count towards the “length

of delay,” while justifiable reasons for delay do not. Id. 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. See, e.g., 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.”); United States v. Loud Hawk, 474 U.S. 302, 316 (delay caused by
                                                                                  Gonzales–14

interlocutory appeal “ordinarily is a valid reason that justifies delay”); Zamorano, 84

S.W.3d at 650 (stating in reference to the State’s reasons for delay that “[t]his was not a

complex case; it was a simple DWI, and yet the State had no explanation for why it could

not try the case for four years”).

       The trial court addressed the second Barker criterion in a single sentence: “[A]

six[-]year delay and lack of explanation by the State warrant the examination of the third

and fourth factors.” Presumably, the reference to a six-year delay refers to the first

factor—length of delay—and the lack of explanation on the part of the State goes to the

second factor—the State’s reason for the delay. When the court of appeals addressed this

factor on remand, it agreed with the trial court and concluded that this factor weighed

heavily in favor of Appellant. Gonzales, 2013 WL 4500656, at *4. The court of appeals

reached this conclusion for the same reason the trial court did, but it also noted that this

factor weighed against the State because Appellant’s home address was known at all

times by the State. Id.

       The State argues that the court of appeals ignored express and implicit findings of

the trial court when it concluded that there was “nothing in the record to indicate the

delay between indictment and arrest was anything but negligence on the State’s part,” and

that the court did not take into account Appellant’s actions. However, the State

misconstrues the analysis of the court of appeals, and the Supreme Court’s holdings in

Barker and its progeny, because it conflates the State’s reasons for delay with whether
                                                                                    Gonzales–15

Appellant timely asserted his right to a speedy trial.

       There can be no doubt that the State’s unexplained six-year delay constitutes

negligence that has compounded Appellant’s presumptive prejudice over time. See

Doggett, 505 U.S. at 652, 656 (reviewing the State’s justification for delay to determine

whether it exercised diligence and holding that negligence does not meet that standard).

This carries even more weight because the State concedes that it knew Appellant’s

address the entire time but completely failed to attempt to contact him. Id. at 653 (the

State’s failure to find a defendant “within minutes” when able constitutes negligence).

We also agree with the court of appeals (and thereby the trial court) that this factor

weighs heavily in Appellant’s favor.

C. The timing of Appellant’s assertion of his right to a speedy trial

       “Whether and how a defendant asserts his right is closely related to the other

[Barker] factors . . . .” Barker, 407 U.S. at 531 (noting that a defendant’s timely assertion

of his speedy-trial right affects the other Barker factors). As a result, this factor “is

entitled to strong evidentiary weight in determining whether the defendant is being

deprived of the right [to a speedy trial].” Barker, 407 U.S. at 531–32. In addition, we have

held that, although an accused is entitled to a speedy trial, a defendant has no duty to

bring himself to trial. See Zamorano, 84 S.W.3d at 651. However, neither does the State

have an obligation “to discover, investigate, and accuse a person within any particular

period of time” because “[a]ny delay between commission of the crime and indictment is
                                                                                 Gonzales–16

controlled by the applicable statute of limitations.” Marion, 404 U.S. at 313, 320.




       The trial court found that Appellant filed his speedy-trial motion about a month

after he was arrested. The trial court also found that

       [A]t no time during the six[-]year delay did defendant assert his right to a
       speedy trial. This coupled with the fact that [Appellant] let his driver’s
       license expire and attempt to evade arrest leads the court to conclude that
       the defendant had some notion of outstanding charges and used the State’s
       tardiness to his own advantage. This court is also unconvinced that
       defendant and his parents did not discuss the event that transpired in their
       own home or the conversations with police. Furthermore, defendant’s
       testimony that he thought “the cops would come and talk to [him] if they
       had any issues” indicates that the defendant was at least aware officers were
       investigating the circumstances surrounding the event and was likely aware
       officers had been in touch with his parents.

Based on these findings, the trial court concluded that Appellant failed to timely assert his

right to a speedy trial. The court of appeals reached the contrary conclusion that

Appellant’s first opportunity to assert his right to speedy trial was immediately after his

arrest. Gonzales, 2013 WL 4500656, at *5. The court reasoned that Appellant had no

notice of the pending indictment and that Appellant had “no duty to bring himself to trial;

that is the State’s duty,”6 although the court did not explain how it reached the conclusion

that Appellant had no notice of the indictment.

       The trial court’s findings are simply not sufficiently supported by the record. First,

the finding that Appellant knew about the outstanding charges cannot be supported only



       6
           Zamorano, 84 S.W.3d at 651.
                                                                                   Gonzales–17

by information regarding Appellant being booked for evading arrest, which was presented

in closing arguments by the State without personal knowledge. We have held that

statements of an attorney on the record may be considered as evidence only if the attorney

“is speaking from first-hand knowledge.” See State v. Guerrero, 400 S.W.3d 576, 585

(Tex. Crim. App. 2013). However, in this case, the prosecutor specifically stated during

closing arguments that he would need a witness to testify to the evading issue, and based

on the following excerpt, it is clear that the prosecutor had no personal knowledge of the

evading issue:

       Your Honor, there is another issue that I didn’t bring up today and I can just
       kind of tell you what it’s about, but I potentially could have witnesses come
       in here and testify about the actual arrest on the warrant that occurred in
       April. There is another case that resulted out of that, an evading case, so I
       think there were officers that actually went to go find him on that day and
       actually did find him and he evaded those officers. That is something that
       I’m just telling you about, but I mean, if you wanted to -- me to bring up
       witnesses to testify to those facts, I could potentially get those officers in
       here.

Thus, the trial court erred when it relied on the State’s representations that Appellant

evaded arrest in April 2010 when he was arrested to support that finding.

       Second, the trial court’s finding that Appellant allowed his driver’s license to

expire in 2007 because he knew about the outstanding charges in this case is simply not a

reasonable inference based on that fact alone. Third, the finding of the trial court that

Appellant failed to assert his right to a speedy trial during the six-year delay is circular

logic because it presumes the answer to the inquiry—Appellant cannot assert his right to a
                                                                                    Gonzales–18

speedy trial if he did not know about the charges.

       Moreover, even when the evidence that Appellant “was at least aware officers

were investigating the circumstances surrounding the event,” is viewed in the light most

favorable to the trial court’s ruling and, even if we defer to the trial court on that finding,

it is also insufficient to prove knowledge on the part of Appellant of the outstanding

charges in this case. Knowledge that police are merely investigating a possible crime is

insufficient to put a defendant on notice to assert his right to speedy trial. See Doggett,

505 U.S. at 653 (stating that the petitioner’s timely assertion of his right to a speedy trial

turns, in large part, on whether the petitioner knew about the outstanding charges); see

also United States v. Cardona, 302 F.3d 494, 498 (5th Cir. 2002) (concluding that when

there is no evidence that the appellant knew about the charges until his arrest, but he

timely asserted his right to a speedy trial after his arrest, the assertion-of-the-right factor

weighs in the appellant’s favor). We conclude that Appellant timely asserted his right to a

speedy trial. See Doggett, 505 U.S. at 653–54.

D. Prejudice to Appellant because of the length of delay

       To analyze prejudice, the Supreme Court in Barker identified three interests the

Speedy Trial Clause was designed to protect, including “to prevent oppressive pretrial

incarceration,” “to minimize anxiety and concern of the accused,” and “to limit the

possibility that the defense will be impaired.” Barker, 407 U.S. at 532; see Zamorano, 84

S.W.3d at 652. The last interest is the most important because the fairness of the entire
                                                                                       Gonzales–19

criminal-justice system is distorted when a defendant is unable to adequately prepare his

defense. Barker, 407 U.S. at 532. Here, because Appellant spent no time in jail before his

arrest, and if Appellant did not know about the indictment, he could have suffered little

anxiety or concern. However, this is not the end of the inquiry.

       In Doggett v. United States, 505 U.S. 647 (1992), the Supreme Court examined in

more depth the role that excessive delay and presumptive prejudice play in the

impairment of a defendant’s ability to present a defense. See id. at 655–65. In certain

instances, the length of delay may be so excessive that it “presumptively compromises the

reliability of a trial in ways that neither party can prove or identify.” Shaw v. State, 117

S.W.3d 883, 890 (Tex. Crim. App. 2003) (citing Doggett, 505 U.S. at 655). In such

instances, the defendant is absolved from the requirement to demonstrate prejudice.7

Although we have previously remanded this case and presumed the type of extraordinary

prejudice that relieves Appellant of his burden to prove that the delay prejudiced him by

impairing his ability to present a defense,8 we have not examined this presumption at




       7
        Doggett, 505 U.S. at 655–56; see also United States v. Molina–Solorio, 577 F.3d 300,
307 (5th Cir. 2009); Gonzales, 2013 WL 765575, at *1 (remanding for the court of appeals to
review the record for rebuttal or extenuation of prejudice because “the six-year delay between
indictment and arrest presumptively compromised the reliability of a trial in way that cannot be
proven or identified”).
       8
        See Gonzales, 2013 WL 765575, at *1 (“In the instant case, the six-year delay between
the appellant's indictment and his arrest ‘presumptively compromise[d] the reliability of a trial in
ways that neither party can prove or, for that matter, identify.’”).
                                                                                    Gonzales–20

length.9 We look first to guidance from the Supreme Court and then the Fifth Circuit

Court of Appeals.10

       In Doggett, the petitioner was indicted for conspiring to import and distribute

cocaine. Doggett, 505 U.S. at 648. He was arrested 8 ½ years after his indictment. Id. at

650. The Supreme Court agreed with earlier courts that the delay was solely attributable

to the State’s negligence. Id. at 653. When the Court examined the prejudice component

of the Barker test, it noted that “affirmative proof of particularized prejudice is not

essential to every speedy trial claim,” and that “negligence is not automatically tolerable

simply because the accused cannot demonstrate exactly how it has prejudiced him.” Id. at

656–57. And while conceding that “time can tilt the case against either side,” the Court

concluded that “one cannot generally be sure which [party] it has prejudiced more

severely.” Id. at 655. The Court also acknowledged that Doggett “did indeed come up



       9
        We note that other opinions from the Fifth Circuit and other jurisdictions have
addressed the issue of when prejudice should be considered “extraordinary” and presumed,
although such opinions are only persuasive authority. See, e.g., United States v. Bergfeld, 280
F.3d 486, 491 (5th Cir. 2002) (five-year delay caused by the Government’s negligence entitled
the appellant to a presumption of prejudice); United States v. Brown, 169 F.3d 344, 350 (6th Cir.
1999) (finding presumed prejudice after a five-and-one-half-year delay); United States v. Shell,
974 F.2d 1035, 1036 (9th Cir. 1992) (finding presumed prejudice after a six-year delay).
       10
          This Court has relied on opinions from the Fifth Circuit Court of Appeals in the past
with respect to speedy-trial issues despite the fact that such opinions are not binding on this
Court. See, e.g., Cantu v. State, 253 S.W.3d 273, 284 (Tex. Crim. App. 2008) (citing United
States v. Palmer, 537 F.2d 1287 (5th Cir. 1976)); Zamorano, 84 S.W.3d at 652 n.42 (citing
United States v. Gonzales, 897 F.2d 1312 (5th Cir. 1990); Spence v. State, 758 S.W.2d 597, 598
n.1 (Tex. Crim. App. 1988) (citing United States v. Giwa, 831 F.2d 538, 542 (5th Cir. 1987);
United States v. Johnson, 815 F.2d 309 (5th Cir. 1987)); Meshell v. State, 739 S.W.2d 246, 256
(Tex. Crim. App. 1987) (citing United States v. Carter, 603 F.2d 1204 (5th Cir. 1979)).
                                                                                         Gonzales–21

short” with respect to proving affirmative prejudice, although it still held in his favor and

granted relief. Id. at 658. Regarding the State’s attempt to persuasively rebut the

“extraordinary” presumptive prejudice, the Supreme Court agreed that, while the State

“ably counter[ed] Doggett’s efforts to demonstrate particularized prejudice, it has not, and

probably could not have, affirmatively proved that the delay left his ability to defend

himself unimpaired.”11 Id. at 658 n.4.

       In Cardona, the appellant was indicted on April 23, 1995, and an arrest warrant

issued the same day. Cardona, 302 F.3d at 498. Over five years later, on October 28,

2000, the appellant was arrested on the outstanding warrant. Id. The Fifth Circuit Court of

Appeals reversed and remanded because it concluded that the district court erred in its

speedy-trial analysis. Id. at 496. Specifically, the court held that the excessive delay was

due to the negligence of the State and the court reasoned that, because the prejudice


       11
          The State argues that the Supreme Court’s footnote “is more dictum than precedent and
more cryptic than helpful” and asserts that we have pronounced that footnotes should receive
minimal precedential value. See Young v. State, 826 S.W.2d 141, 144 n.5 (Tex. Crim. App.
1991). We agree that we have intimated that we are not bound by holdings expressed in the
footnotes of our own opinions. However, we make three observations.
         First, we have never held that footnotes in Supreme Court opinions are not binding, and
we have previously adopted a footnote from the United States Supreme Court’s decision in
Doggett. See Munoz, 991 S.W.2d at 821–22. Second, the Fifth Circuit Court of Appeals was
sufficiently persuaded by the importance of the footnote in Doggett to adopt it as applicable law
in this circuit. See Molina–Solorio, 577 F.3d at 307. And while we acknowledge that federal
constitutional interpretations of the Fifth Circuit Court of Appeals are not binding on this Court,
we find the analysis of the Fifth Circuit in the cases cited today persuasive. See Cooper v. State,
631 S.W.2d 508, 514 (Tex. Crim. App. 1982) (stating that the Court of Criminal Appeals is not
bound by federal constitutional interpretations of the lower circuit courts). Finally, it is not clear
how much precedential value a pronouncement delivered by this Court in a footnote should
carry, considering that we have stated that footnotes “should receive minimal precedential
value.” Young, 826 S.W.2d at 144 n.5.
                                                                                 Gonzales–22

caused by excessive delay compounds over time, a five-year delay was sufficient to

absolve the appellant of his burden to prove prejudice. Id. at 498. However, it did not

discuss the rebuttal of the presumption other than to state that the presumption of

prejudice was not extenuated nor rebutted. Id. at 499.

       In Molina–Solorio, the Fifth Circuit presumed prejudice when nearly ten years

passed between the appellant’s indictment and trial, and eight of those years were spent in

custody. Molina–Solorio, 577 F.3d at 304. The appellant argued that “the length of delay,

combined with the [State’s] negligence and his timely assertion of his rights, warrant[ed]

a finding of presumed prejudice.” The court agreed. Id. When examining the presumption

of prejudice, the court rejected the Government’s assertion that it had proven extenuation

or rebutted the presumption. Id. at 307. It explained that, because the appellant timely

asserted his right, he did not acquiesce to the delay. Id. With respect to whether the

Government persuasively rebutted the presumed prejudice, the court concluded that,

despite the Government’s arguments in rebuttal to the appellant’s attempts to demonstrate

actual prejudice, the presumption had not been rebutted under Doggett. Id. at 307. In a

footnote, the court stated that “to say that the Government has met its burden in this case

would be to rob the Doggett presumption of any efficacy.” Id. at 307 n.4. The Fifth

Circuit also noted that the Supreme Court in Barker discussed that “prejudice should be

presumed and the burden shifted to the state to prove the negative by affirmatively

demonstrating that there was no prejudice to defendant as a result of the delay,” and that
                                                                                  Gonzales–23

“[a]lthough the burden shift might require the state to prove facts inaccessible to it, e.g.,

that no evidence for the defense was lost or impaired, that is the point[.]” Id. (internal

citation omitted). The Fifth Circuit went on to cite the Supreme Court’s footnote in

Doggett explaining that the Government probably could not have affirmatively proven

that the excessive delay did not impair the appellant’s ability to defend himself. See id.

(citing Doggett, 505 U.S. at 654 n.4).

       After sifting through the confusing web of federal discussion in this area, we now

turn to the issue of presumed prejudice in this case, whether the court of appeals properly

reviewed the record on remand for acquiescence by Appellant, and whether the State

persuasively rebutted the presumed prejudice.

       In its opinion on remand, the court of appeals explained its analysis of extenuation

thusly, “We already concluded that [Appellant] did not acquiesce in the delay because, as

discussed above, he asserted his rights once he was aware of the indictment against him.”

Gonzalez, 2013 WL 4500656, at *6 (citing Molina–Solorio, 577 F.3d at 307). With

respect to whether the State persuasively rebutted the presumption of prejudice, and citing

the Supreme Court’s opinion in Doggett, the court of appeals stated that

       [w]hile we acknowledge that attempting to prove a negative is difficult, the
       State is nonetheless required to rebut or extenuate the presumption of
       prejudice. [Appellant] was not required to show he was unable to
       adequately prepare for his defense, but rather, the State was required to
       show that his defense was unimpaired despite the lengthy delay.

Id. at *7 (internal citation omitted). Based on this, and the arguments and evidence put
                                                                                  Gonzales–24

forth by the State, the court of appeals concluded that the State failed to meet its burden to

persuasively rebut the presumption of prejudice. Id.

       When a defendant has timely asserted his right to a speedy trial, it is a difficult task

for the State to prove that the defendant acquiesced in the delay. And in this case, other

than the findings of fact of the trial court already raised by the State and previously

discussed, the State points to no record evidence to show that Appellant acquiesced in a

six-year delay in being brought to trial for these charges. Therefore, after reviewing the

State’s arguments, the findings of the trial court, and the transcript of the speedy-trial

hearing, we agree with the court of appeals and hold that the State has failed to vitiate the

presumption of prejudice by proving that Appellant acquiesced to the delay. As to

whether the State persuasively rebutted the presumption, although we recognize that this

is a close decision and that this Court must engage “‘in a difficult and sensitive balancing

process’ in each individual case,”12 we again agree with the court of appeals that the State

has failed to persuasively rebut the presumption of prejudice in this case. Although we do

not take lightly the dismissal of an indictment, because of the State’s negligence in failing

to pursue Appellant with diligence for six years, we believe that the facts of this case fall

within the parameters of Doggett and Molina–Solorio. Therefore, we conclude that

Appellant’s right to a speedy trial was violated. We affirm the judgment of the court of

appeals.



       12
            See Cantu, 253 S.W.3d at 281 (quoting Barker, 407 U.S. at 533).
                                                                                  Gonzales–25

                                         C ONCLUSION

       After reviewing the findings of fact of the trial court, the speedy-trial analysis of

the court of appeals, and applying the Barker factors de novo, we reach the same

conclusion as the court of appeals that Appellant’s right to a speedy trial was violated.

Therefore, we affirm the judgment of the court of appeals, and the indictment against

Appellant is dismissed with prejudice.

                                                          Hervey, J.

Delivered: June 25, 2014

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