                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00021-CR

                                       Burton John NEESVIG,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the County Court at Law No. 7, Bexar County, Texas
                                      Trial Court No. 355176
                              Honorable Genie Wright, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: March 6, 2013

AFFIRMED

           The sole issue raised by Burton John Neesvig on appeal is that the trial court erred in

denying his motion to dismiss for lack of a speedy trial. We overrule this issue and affirm the

trial court’s judgment.

                                     BARKER V. WINGO FACTORS

           Courts must balance four factors when analyzing a speedy trial claim. Barker v. Wingo,

407 U.S. 514, 530 (1972); Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). These

factors are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion
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of the right; and (4) prejudice to the defendant. Barker, 407 U.S. at 530; Cantu, 253 S.W.3d at

280. No single factor is necessary or sufficient to establish a violation of the right to a speedy

trial; “[r]ather, they are related factors and must be considered together.” Barker, 407 U.S. at

533. In conducting this balancing test, we weigh “the conduct of both the prosecution and the

defendant.” Id. at 530.

       “While the State has the burden of justifying the length of delay, the defendant has the

burden of proving the assertion of the right and showing prejudice.” Cantu, 253 S.W.3d at 280.

“The defendant’s burden of proof on the latter two factors ‘varies inversely’ with the State’s

degree of culpability for the delay.” Id. “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.” Id. at 280–81.

                                      STANDARD OF REVIEW

       In an appeal of a trial court’s ruling on a speedy trial claim, we apply an abuse of

discretion standard in reviewing the trial court’s resolution of factual issues; however, we apply a

de novo standard in reviewing legal conclusions. Cantu, 253 S.W.3d at 282. A review of the

four Barker v. Wingo factors necessarily involves factual determinations and legal conclusions,

but the balancing of the four factors as a whole is a purely legal question. Id.

       Under the abuse of discretion standard applicable to factual issues, we defer not only to a

trial court’s resolution of disputed facts, but also to the trial court’s right to draw reasonable

inferences from those facts. Id. “In assessing the evidence at a speedy-trial hearing, the trial

judge may completely disregard a witness’s testimony, based on credibility and demeanor

evaluations, even if that testimony is uncontroverted.” Id. “The trial judge may disbelieve any

evidence so long as there is a reasonable and articulable basis for doing so[,] [a]nd all of the

evidence must be viewed in the light most favorable to the [trial court’s] ultimate ruling.” Id.
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Because Neesvig lost in the trial court on his speedy-trial claim, “we presume that the trial judge

resolved any disputed fact issues in the State’s favor, and we defer to the implied findings of fact

that the record supports.” Id.

                 APPLICATION AND BALANCING OF BARKER V. WINGO FACTORS

       A.      Length of Delay

       The length of delay is the “triggering mechanism” for an analysis of the remaining three

factors and is measured from the date the defendant is arrested or formally accused. Cantu, 253

S.W.3d at 281. The balancing test is “triggered by a delay that is unreasonable enough to be

‘presumptively prejudicial.’” Id. “There is no set time element that triggers the analysis, but . . .

a delay of four months is not sufficient while a seventeen-month delay is.” Id.

       Neesvig was initially arrested on September 27, 2008, and his trial commenced on

November 7, 2011. This over three year delay is sufficient to trigger a speedy trial analysis. See

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

       B.      Reason for the Delay

       Once it is determined that a presumptively prejudicial delay has occurred, the State bears

the burden of justifying the delay. Cantu, 253 S.W.3d at 280. Intentional prosecutorial delay is

weighed heavily against the State, while more “neutral” reasons, such as negligence or

overcrowded dockets, are weighed less heavily against it. Zamorano v. State, 84 S.W.3d 643,

649 (Tex. Crim. App. 2002) (quoting Barker, 407 U.S. at 531). “In the absence of an assigned

reason for the delay, a court may presume neither a deliberate attempt on the part of the State to

prejudice the defense nor a valid reason for the delay.” Dragoo v. State, 96 S.W.3d 308, 314

(Tex. Crim. App. 2003).

       Because Neesvig was charged with six other offenses, including two felony offenses, he

delayed requesting a trial setting. At the hearing on Neesvig’s motion, defense counsel testified
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that they were working on the other cases, and the instant case was the last one. Defense counsel

testified that an agreement was reached on one of the other offenses, a DWI, in March of 2010.

The instant case was first set on the jury call docket on July 31, 2010, which was almost two

years after Neesvig was initially arrested on September 27, 2008.

        Although delay caused by good faith plea negotiations is a valid reason for the delay and

is not weighed against the prosecution, delay caused by extended plea negotiations can be

attributed to the defendant. See State v. Munoz, 991 S.W.2d 818, 824–25 & n.6 (Tex. Crim.

App. 1999). In this case, the negotiations were extended not due to the facts of the instant case,

but due to the negotiations relating to the other six offenses. From the testimony, the trial court

could infer that defense counsel did not focus on the negotiations involving the instant case until

after the DWI offense was resolved in March of 2010. Therefore, the almost two-year delay

from the date of Neesvig’s arrest and the first trial setting weighs against him. See id.

        The State announced not ready for two trial settings in July and August of 2010. The

State then dismissed the case in November of 2010 because of a missing witness. 1 A missing

witness is considered a valid reason that justifies an appropriate delay. Baker, 407 U.S. at 531.

        The State then waited three months to re-file the case. From the testimony presented, it

appears that the State was made aware of the witness’s availability in December; accordingly, we

weigh the State’s delay in refiling the case against the State.

        After the case was re-filed in February of 2011, an arraignment hearing was set on March

30, 2011. The record contains no evidence to explain the delay from the March setting to the

next setting in May of 2011; however, in May of 2011, a motion to withdraw filed by Neesvig’s

1
 Although Neesvig speculates in his brief that the State’s dismissal and re-filing of the charges could have been in
bad faith, nothing in the record supports this speculation. Moreover, the State is generally free to reindict a
defendant after a dismissal so long as jeopardy did not attach prior to the dismissal. See Proctor v. State, 841
S.W.2d 1, 3-4 (Tex. Crim. App. 1992).


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retained counsel was granted, and he was appointed counsel to represent him. The case was then

set for trial on November 7, 2011. Accordingly, it would appear that a portion of the nine-month

delay between the date the case was re-filed and the date of trial is attributable to Neesvig;

however, the record does not reflect a reason for the entire nine-month delay before the case

proceeded to trial on November 7, 2011. Since the reason for this nine-month delay does not

appear on the record, the delay from at least May of 2011 to November of 2011 weighs against

the State; however, it is not weighed heavily against it. See Dragoo, 96 S.W.3d 314.

       In summary, of the approximate three-year delay, approximately two years of the delay

weighs against Neesvig, and approximately one year weighs against the State, but the majority of

the one-year delay does not weigh heavily against the State. Therefore, this factor weighs

against Neesvig.

       C.      Assertion of the Right

       Although it is the State’s duty to bring the defendant to trial, “a defendant does have the

responsibility to assert his right to a speedy trial.” Cantu, 253 S.W.3d at 282. “Whether and

how a defendant asserts this right is closely related to the other three factors because the strength

of his efforts will be shaped by them.” Id. at 282–83. “The more serious the deprivation, the

more likely a defendant is to complain.” Id. at 283. “Therefore, the defendant’s assertion of his

speedy-trial right (or his failure to assert it) is entitled to strong evidentiary weight in

determining whether the defendant is being deprived of the right.” Id. “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. “If a defendant fails to first seek a speedy trial before

seeking dismissal of the charges, he should provide cogent reasons for this failure.”             Id.

“Repeated requests for a speedy trial weigh heavily in favor of the defendant, while the failure to



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make such requests supports an inference that the defendant does not really want a trial, he wants

only a dismissal.” Id.

        Neesvig argues that his request for a trial setting before the charge was dismissed was an

assertion of his right to a speedy trial. Given the on-going negotiations regarding the other

charges that were pending against Neesvig, however, the trial court could have found that the

request for a trial setting was simply an indication that Neesvig was finally prepared to proceed

to trial on the charge. The record does not contain any motion filed by Neesvig seeking a speedy

trial. Instead, almost three years after his initial arrest, he filed a motion to dismiss four days

before the trial was to commence and nine months after the charge was re-filed. This factor

weighs heavily against Neesvig. See Prihoda v. State, 352 S.W.3d 796, 805 (Tex. App.—San

Antonio 2011, pet. ref’d) (filing of motion to dismiss three years after arrest and on the day trial

was to commence weighed heavily against defendant); Dokter v. State, 281 S.W.3d 152, 159

(Tex. App.—Texarkana 2009, no pet.) (plea negotiations do not excuse defendant’s failure to

timely assert his right to a speedy trial).

        D.      Prejudice

        The fourth factor in the balancing test examines “whether and to what extent the delay

has prejudiced the defendant.” Cantu, 253 S.W.3d at 285. “When a court analyzes the prejudice

to the defendant, it must do so in light of the defendant’s interests that the speedy-trial right was

designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to minimize the

accused’s anxiety and concern, and (3) to limit the possibility that the accused’s defense will be

impaired.” Id. The last type of prejudice is the most serious because a defendant’s inability to

adequately prepare his case “skews the fairness” of the system. Id.

        Neesvig argues that he was prejudiced because he was financially unable to retain the

same attorney after the State dismissed the charge. The record establishes, however, that part of
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Neesvig’s financial difficulty resulted from posting bond for the other charges he was facing

when the attorney was originally retained. See Gonzalez v. State, 117 S.W.3d 831, 837 (Tex.

Crim. App. 2003) (noting right to counsel of choice is not absolute because defendant has no

right to an attorney he cannot afford). Moreover, Neesvig’s desire to have a retained attorney of

his choosing does not demonstrate that he was prejudiced by having an appointed attorney, and

no evidence was presented to show Neesvig’s defense was impaired by the delay.

       At the hearing, Neesvig’s attorney alluded to Neesvig’s onerous pretrial incarceration;

however, that incarceration stemmed from seven pending offenses, including two felonies, not

just the present offense. When the charges were re-filed and Neesvig was re-arrested, the record

shows that Neesvig immediately posted bond. Neesvig also contends that he suffered anxiety

and concern when the charges were re-filed.            “[E]vidence 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. Finally, the presumption of prejudice based on excessive delay was

extenuated by Neesvig’s longtime acquiescence in the delay.           Dragoo, 96 S.W.3d at 315.

Accordingly, this factor weighs against Neesvig.

       E.      Balancing the Four Factors

       Although the approximate three-year delay in this case triggered a speedy trial analysis,

two years of the delay is attributable to Neesvig. Moreover, Neesvig did not assert his right to a

speedy trial until four days before the trial commenced and then sought a dismissal. Finally, the

presumption of prejudice was extenuated by Neesvig’s longtime acquiescence in the delay, and

the record contains no other evidence Neesvig’s defense was prejudiced by the delay. Having

reviewed the four factors, we conclude the trial court did not err in denying Neesvig’s motion to

dismiss.
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                                       CONCLUSION

     The trial court’s judgment is affirmed.

                                                Catherine Stone, Chief Justice


DO NOT PUBLISH




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