REVERSE and REMAND and Opinion Filed October 30, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-13-01740-CR

                            THE STATE OF TEXAS, Appellant
                                        V.
                              FRED C. THOMAS, Appellee

                      On Appeal from the County Criminal Court No. 7
                                   Dallas County, Texas
                          Trial Court Cause No. MB-12-71054-H

                            MEMORANDUM OPINION
                        Before Justices O’Neill, Lang-Miers, and Brown
                                  Opinion by Justice O’Neill
       The State appeals the trial court’s order granting Fred C. Thomas’s motion to dismiss for

violation of speedy trial rights. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a) (West Supp.

2013) (State may appeal dismissal of indictment or information). We sustain the State’s two

issues, reverse the trial court’s order, and remand the cause for further proceedings consistent

with this opinion. We issue this memorandum opinion because all matters are settled in law.

See TEX. R. APP. P. 47.4.

       The Sixth Amendment to the United States Constitution guarantees a speedy trial to an

accused. See U.S. CONST. amend VI; Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App.

2014). The plain language of the Sixth Amendment limits the applicability of the Speedy Trial

Clause only to an accused. Gonzales, 435 S.W.3d at 808. This case presents the question
whether the time period before arrest or formal charge may be considered in determining

whether an accused’s right to a speedy trial has been violated. We conclude it may not.

       The offense, harassment in violation of section 42.07 of the Texas Penal Code, allegedly

took place on or about February 1, 2012. See TEX. PENAL CODE ANN. § 42.07 (West Supp.

2013). Although a warrant for appellee’s arrest was issued on August 9, 2012, appellee was not

aware that any complaint had been made against him until April 10, 2013, when four police

officers came to his home and informed him of the warrant’s existence. The following day,

appellee voluntarily turned himself in to police, and was released on bond. An information

charging appellee with the offense was filed on August 22, 2013. On August 27, 2013, the trial

court gave notice of a trial setting for October 21, 2013. On October 4, 2013, appellee filed his

motion to dismiss on speedy trial grounds and obtained a hearing date of November 15, 2013.

This setting was passed at appellee’s request.

       At the third setting, on December 13, 2013, the trial court heard appellee’s motion to

dismiss. Appellee testified that he did nothing to avoid being found between February 2012 and

April 2013. He has had the same home and office addresses for fourteen years, and both

addresses are a matter of public record. His ex-wife is the alleged victim of the harassing

telephone calls that are the basis of the charges against him. His ex-wife was aware of appellee’s

addresses, and lived at the home address during the marriage until she and appellee separated in

July 2011. The divorce, a month after the alleged offense, was contentious. He was not aware of

either his ex-wife’s complaint or the existence of the arrest warrant until April 10, 2013, when

the police officers visited his home. Due to the passage of time, appellee cannot reconstruct his

activities on the date of the alleged offense. He is a doctor of internal medicine, and is concerned

about the effect of the charges on his medical practice. Since posting bond, he has been anxious

about the pendency of the case. On cross-examination, appellee admitted that he had not been

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incarcerated at any time for the alleged offense. Two police officers also testified, but neither

were responsible for the case after February 2012, and had no further knowledge of the progress

of the case between February 2012 and the date of trial. One of the officers, a detective, testified

that the case was transferred to the family violence section because the parties were going

through divorce.

         In closing argument, appellee’s counsel contended that the trial court could presume

prejudice from the delay in bringing appellee to trial, and must apply the four-part test of Barker

v. Wingo, 407 U.S. 514 (1972), to determine if appellee’s right to a speedy trial was violated. He

argued that 18 or 20 months had elapsed since the date of the offense, and over a year had

elapsed since the arrest warrant was issued. He argued that the Barker factors all weighed in

favor of appellee: the delay was long; the State failed to explain any reason for the delay;

appellee was not at fault for any delay and acted promptly in responding to the arrest warrant,

filing his motion to dismiss, and obtaining a hearing; and appellee had been prejudiced by the

delay.

         Counsel for the State argued that appellee failed to make a threshold showing of

presumptive prejudice, so the court need not undertake the Barker analysis. She argued that the

time between issuance of the arrest warrant and actual arrest is not counted in determining the

period of delay. She argued that the “trigger” for the speedy trial analysis was appellee’s arrest

in April 2013, and only four months had elapsed between the arrest and the filing of the

information in August 2013 that charged appellee with the offense. The State was ready for trial

“on the first speedy trial motion setting in November,” for a total of seven months after arrest.

         Counsel for the State also argued that even if the other Barker factors are considered,

they should weigh in favor of the State. The case was complicated by the transfer to the family

violence section; appellee was never incarcerated; appellee’s “general anxiety” carried little

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weight; and appellee had not even attempted to review his records to determine his activities on

the date of the alleged offense, and so had not established any prejudice to his defense. In

rebuttal, appellee’s counsel argued that “[t]he case law is pretty clear that the counting starts

when the warrant is issued.”

       The trial court granted appellee’s motion to dismiss. In two issues, the State alleges the

trial court erred by granting the motion. In reviewing the trial court’s ruling, “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.” Gonzales,

435 S.W.3d at 808–09. 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. at 809.

       In Gonzales, the court explained, “[i]n addressing a speedy-trial claim, the Supreme

Court has laid out four factors that a court should consider: (1) the length of the 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.” Id. at 808 (citing Barker, 407 U.S.

at 530). A court does not engage in this analysis, however, unless the accused makes an initial

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

ordinary from ‘presumptively prejudicial’ delay.’” Id. (quoting Doggett v. United States, 505

U.S. 647, 651–52 (1992)). “Presumptive prejudice,” according to the Gonzales court, “ʻsimply

marks the point at which courts deem the delay unreasonable enough to trigger [further]

enquiry.’” Id. (quoting State v. Munoz, 991 S.W.2d 818, 821–22 (Tex. Crim. App. 1999)). The

court concluded, “[t]hus, if the State prosecuted the accused with “customary promptness,” the

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

showing of presumptive prejudice, a court must then proceed to consider each of the remaining

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Barker factors and weigh them.” Id. (citing Munoz, 991 S.W.2d at 821–22); see also State v.

Jones, 168 S.W.3d 339, 347 (Tex. App.—Dallas 2005, pet. ref’d) (unless delay is

“presumptively prejudicial,” courts need not inquire into other Barker factors).

       There is no “set time element” that triggers the Barker analysis. Cantu v. State, 253

S.W.3d 273, 281 (Tex. Crim. App. 2008). In general, delay approaching one year is sufficient to

trigger a speedy trial inquiry. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). The

length of the delay is measured from the time the defendant is arrested or formally accused. Id.

(citing United States v. Marion, 404 U.S. 307, 313 (1971)).

       Appellee argues that the issuance of the arrest warrant in August 2012 constitutes a

“formal accusation” triggering the Barker analysis. He contends that when the arrest warrant

was issued, he was “formally accused by a police officer in an affidavit that was filed in a court,

submitted to a judge, who found probable cause that Appellee committed an offense, and issued

an arrest warrant,” long before his actual arrest. He distinguishes cases cited by the State,

arguing that all but Santallan v. State, 922 S.W.2d 306 (Tex. App.—Fort Worth 1996, pet. ref’d),

are consistent with the argument that the term “formal accusation” is broad and may include an

arrest warrant as well as an indictment or information. See Santallan, 922 S.W.2d at 307 (where

no pre-arrest indictment, time period ran from actual arrest, not issuance of arrest warrant four

years prior); see also Davis v. State, 630 S.W.2d 532, 537–38 (Tex. App.—Amarillo 1982, no

pet.) (“less formal” accusation or charge, such as filing of complaint or issuance of arrest

warrant, will not suffice to trigger speedy trial protections).

       We disagree with appellee’s argument. In Marion, the Supreme Court held that the Sixth

Amendment right to a speedy trial does not apply to pre-arrest delay:

               Invocation of the speedy trial provision thus need not await
               indictment, information, or other formal charge. But we decline to
               extend that reach of the amendment to the period prior to arrest.
               Until this event occurs, a citizen suffers no restraints on his liberty
                                                 –5–
                     and is not the subject of public accusation: his situation does not
                     compare with that of a defendant who has been arrested and held to
                     answer. Passage of time, whether before or after arrest, may
                     impair memories, cause evidence to be lost, deprive the defendant
                     of witnesses, and otherwise interfere with his ability to defend
                     himself. But this possibility of prejudice at trial is not itself
                     sufficient reason to wrench the Sixth Amendment from its proper
                     context. Possible prejudice is inherent in any delay, however short;
                     it may also weaken the Government’s case.

404 U.S. at 321–22 (internal footnotes omitted).

          In United States v. Lovasco, the Court reaffirmed that “as far as the Speedy Trial Clause

of the Sixth Amendment is concerned, such [preindictment] delay is wholly irrelevant, since our

analysis of the language, history, and purposes of the Clause persuaded us that only ‘a formal

indictment or information or else the actual restraints imposed by arrest and holding to answer a

criminal charge . . . engage the particular protections’ of that provision.” 431 U.S. 783, 788–89

(1977) (quoting Marion, 404 U.S. at 320); see also United States v. MacDonald, 456 U.S. 1, 6–7

(1982) (citing Marion and Lovasco for the proposition that delay prior to arrest or indictment

does not give rise to a Sixth Amendment speedy trial claim).

          Considering only post-arrest delay, see Marion, 404 U.S. at 321–22, appellee was

arrested in April 2013. The information was filed four months later, in August 2013, and the

State was ready for the hearing on appellee’s motion to dismiss in November, for a total of seven

months between appellee’s arrest and trial. 1 Appellee’s motion to dismiss was premised on an

alleged delay of “well over a year,” but included pre-arrest delay in this calculation. Because

pre-arrest delay does not implicate the right to a speedy trial, appellee did not make an initial

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

ordinary from ‘presumptively prejudicial’ delay.’”                             Gonzales, 435 S.W.3d at 808 (quoting


     1
     Appellee does not include the month delay between the November and December 2013 settings in his calculation of the delay, because the
November hearing was passed at his request.



                                                                  –6–
Doggett, 505 U.S. at 651–52). Without “presumptively prejudicial” delay to trigger a Sixth

Amendment analysis, there was no need to consider the other Barker factors. See Jones, 168

S.W.3d at 347 (citing Barker, 407 U.S. at 530). The trial court erred by concluding that

appellee’s “constitutional speedy trial rights have been violated to his detriment.” We sustain the

State’s issues.

        We reverse the trial court’s order granting appellee’s motion and remand this cause to the

trial court for further proceedings consistent with this opinion.




                                                      /Michael J. O’Neill/
                                                      MICHAEL J. O’NEILL
                                                      JUSTICE



Publish
TEX. R. APP. P. 47


131740F.P05




                                                –7–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

THE STATE OF TEXAS, Appellant                       On Appeal from the County Criminal Court
                                                    No. 7, Dallas County, Texas
No. 05-13-01740-CR         V.                       Trial Court Cause No. MB-12-71054-H.
                                                    Opinion delivered by Justice O’Neill,
FRED C. THOMAS, Appellee                            Justices Lang-Miers and Brown
                                                    participating.

     Based on the Court’s opinion of this date, the trial court’s order granting appellee Fred C.
Thomas’s motion to dismiss for violation of speedy trial rights is REVERSED and the cause
REMANDED for further proceedings consistent with this opinion.


Judgment entered this 30th day of October, 2014.




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