                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

        ______________________________

              No. 06-09-00079-CR
        ______________________________


            JUAN Z. GARCIA, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



      On Appeal from the County Court at Law
             Harrison County, Texas
            Trial Court No. 2007-0355




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                    MEMORANDUM OPINION

        On March 19, 2005, Juan Z. Garcia was arrested for driving while intoxicated (DWI). The

information for the offense was not filed until February 25, 2007. After a hearing, the trial court

denied Garcia's motion to set aside the information based on the lack of a speedy trial. Garcia pled

no contest to DWI March 10, 2009, while reserving his right to appeal. He was sentenced to 365

days in jail and a $4,000.00 fine, but was placed on community supervision for eighteen months.

His sole issue on appeal is whether his right to a speedy trial was violated due to the 709-day delay

after arrest before filing of formal DWI charges. We affirm.

I.      The Right to a Speedy Trial

        When one is arrested or charged with a crime, the Sixth Amendment to the United States

Constitution guarantees the right to a speedy trial. This right protects anxiety and concern that

accompanies a public accusation, avoidance of impairment to defense, and freedom from oppressive

pretrial incarceration. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008) (citing Barker

v. Wingo, 407 U.S. 514, 532 (1972)).

        The right to a speedy trial cannot be quantified in days or months. Barker, 407 U.S. at 523.

Thus, Texas courts "analyze federal constitutional speedy-trial claims 'on an ad hoc basis' by

weighing and then balancing the Barker v. Wingo factors." Cantu, 253 S.W.3d at 280. These factors

include: 1) the length of the delay; 2) reason for the delay; 3) assertion of the right; and 4) prejudice

to the accused. Id.; Barker, 407 U.S. at 530. "[T]he greater the State's bad faith or official



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negligence and the longer its actions delay a trial, the less a defendant must show actual prejudice

or prove diligence in asserting his right to a speedy trial." Cantu, 253 S.W.3d at 280–81. No one

factor is determinitive, and all factors must be considered together along with relevant circumstances

on a case-by-case basis. Id. at 281.

II.     Standard of Review

        "In reviewing the trial court's ruling on [Garcia's] federal constitutional speedy trial claim,

we apply a bifurcated standard of review:           an abuse of discretion standard for the factual

components, and a de novo standard for the legal components." Id. at 282 (citing Zamorano v. State,

84 S.W.3d 643, 648 (Tex. Crim. App. 2002)). Review of the Barker factors involves both legal and

factual determinations, but "[t]he balancing test as a whole . . . is a purely legal question." Id. (citing

Zamorano, 84 S.W.3d at 648 n.19). Under an abuse of discretion standard, we defer to the trial

court's resolution of facts and reasonable inferences drawn therefrom and review the evidence in a

light most favorable to the ruling. Id.

III.    Analysis of the Barker Factors

        A.      The Length of Delay

        The Barker test is triggered by a delay that is unreasonable enough to be considered

presumptively prejudicial. Id. at 281. A delay of 706 days is presumptively prejudicial. Id. (citing

Doggett v. United States, 505 U.S. 647, 651–52 n.1 (1992); Phillips v. State, 650 S.W.2d 396, 399




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(Tex. Crim. App. 1983) (noting courts generally find delays approaching one year presumptively

prejudicial)). This factor weighs against the State.

       B.      Reason for the Delay

       When analyzing this prong of the Barker test, "different weights should be assigned to

different reasons." Barker, 407 U.S. at 531. Deliberate attempts to delay trial in order to hamper

a defense is weighed heavily against the State. Id. More neutral reasons, such as negligence or

overcrowded courts are weighed less heavily. Id. A valid reason for delay "should serve to justify

appropriate delay." Id. Although the conclusory motion stated only that "[t]here are no satisfactory

reasons for the delay" and that Garcia "suffered loss of witnesses and substantial anxiety and

concern," the trial court promptly held a hearing on the motion for speedy trial wherein the State

simply stated the indictment was brought within the two-year statute of limitations. No other reason

for delay was given.

       Here, Garcia does not complain about the delay between the time of filing and the trial since

his counsel announced not ready at arraignment March 31, 2007; thereafter, Garcia failed to appear

for a required appearance February 25, 2008. Delay which is attributable in whole or in part to the

defendant may even constitute waiver of a speedy-trial claim. State v. Munoz, 991 S.W.2d 818, 822

(Tex. Crim. App. 1999) (citing Dickey v. Florida, 398 U.S. 30 (1970)). The delay between the arrest

and filing weighs against the State.




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       C.      Assertion of Right

       "The constitutional right is that of a speedy trial, not dismissal of the charges." Cantu, 253

S.W.3d at 281. Garcia never asserted his right to a speedy trial. The assertion of this right was his

responsibility. Id. at 282 (citing Barker, 407 U.S. at 527–28). Failure to make repeated requests for

a speedy trial "supports an inference that the defendant does not really want a trial, he wants only a

dismissal." Id. Again, the information in this case was filed February 26, 2007. A few days later,

Garcia, who was represented by counsel, waived arraignment, announced he was not ready for trial,

and requested that the case be passed to a future setting. On February 6, 2009, almost two years after

the waiver of arraignment, and almost four years after arrest, Garcia filed a motion to set aside the

information based on the lack of a speedy trial. Garcia entered his plea a little over one month later.

       The Texas Court of Criminal Appeals has made it clear that even though a motion for a

speedy trial cannot be filed until formal charges are brought, that right can be asserted in other ways.

"Because appellant never asked for a speedy trial—he asked only for a dismissal—it was incumbent

upon him to show that he had tried to get the case into court so that he could go to trial in a timely

manner." Id. at 284. The failure to "diligently and vigorously seek a rapid resolution is entitled to

'strong evidentiary weight.'" Id. (quoting Barker, 407 U.S. at 531–32). Based on the failure to seek

a speedy trial, and the fact that the motion was filed after Garcia's counsel sought continuance of

trial, we find this factor weighs heavily against Garcia. See Dragoo v. State, 96 S.W.3d 308, 314–15

(Tex. Crim. App. 2000) (holding this factor weighted against defendant where he failed to assert



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speedy trial right for three and a half years until just before trial, although he was represented by

counsel); see also Phipps v. State, 630 S.W.2d 942, 946 (Tex. Crim. App. [Panel Op.] 1982)

(remaining silent for four years and waiting one month before trial to assert right to speedy trial

makes it difficult to prove defendant was denied right to a speedy trial).

       D.      Prejudice

       Prejudice is assessed in the light of the three interests which the right to speedy trial was

designed to protect: 1) freedom from oppressive pretrial incarceration; 2) mitigation of the anxiety

and concern that accompanies a public accusation; and 3) avoidance of impairment to their defense.

Barker, 407 U.S. at 531. "[T]he burden is on the accused to make some showing of prejudice which

was caused by the delay of his trial." Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973).

       Garcia posted bond, and the record does not reveal he was subject to oppressive pretrial

incarceration. We next examine Garcia's level of anxiety. General anxiety is at least some evidence

of the type of anxiety considered in Barker, but is not sufficient proof of prejudice 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 285–86. Besides the general allegation of "substantial anxiety,"

in the motion, there was no evidence of anxiety presented at the hearing.

       Next, limiting the possibility of impairment of a defense is the most serious interest protected

by right to a speedy trial. Barker, 407 U.S. at 531. If witnesses disappear during a delay, or are

unable to recall events, prejudice is obvious. Id. At the hearing, Garcia claimed he was not the



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driver of the vehicle. He testified that there were two other men in the vehicle and that one of them

was the actual driver. Garcia did not know where these men were. He believed one was in Mexico

and the other was somewhere in North Carolina. He testified that these witnesses would have been

available in 2005 or 2006, but were no longer available.

       Logically, if one was accused of a crime that he or she did not commit and had two witnesses

to prove innocence, that person would likely take some action to attempt to have a speedy hearing

or at least preserve the testimony of the witnesses. Had Garcia made any effort to obtain a speedy

resolution of these charges, it would lend some credence to his claim that the State was responsible

for the loss of his exculpatory witness statements. The issue of assertion of the right and prejudice

may be linked in this manner. Here, Garcia could not verify whether the men moved before or after

the issuance of the information. Even assuming the trial court determined Garcia's testimony with

regard to these witnesses as credible, before a claim of missing witnesses will amount to "some

showing of prejudice," Garcia "must show that . . . he has exercised due diligence in his attempt to

find them and produce them at trial." Phipps, 630 S.W.2d at 947; Harris, 489 S.W.2d at 308. No

such evidence of diligence was produced during the hearing.

       Next, Garcia testified he was having a difficult time remembering the incident, and if he

would have been brought to trial earlier, his memory would be better. "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." Cantu, 253 S.W.3d



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at 282. Finally, as the sole fact-finder, the trial court, having heard the testimony of Garcia and seen

his demeanor, may have disbelieved his testimony. We conclude Garcia has failed to demonstrate

prejudice.

        E.      Balancing

        "Having addressed the four Barker factors, we must now balance them." Dragoo, 96 S.W.3d

at 316. The delay in filing the charge and the failure to explain it weighs in favor of Garcia and

against the State. But a major consideration is that Garcia never attempted to invoke his right to a

speedy trial. The filing of the motion to dismiss shows a desire to have no trial, not a speedy one.

Cantu, 253 S.W.3d at 282. The fact that Garcia contributed to the delay, "quietly acquiesced in the

delay for [almost four] years, indicating that he really did not want a speedy trial," all weighs heavily

against Garcia. Dragoo, 96 S.W.3d at 316. While Garcia testified he could not locate witnesses due

to the delay, the fact that he completely failed to assert the right to a speedy trial for four years

weakened his uncorroborated testimony of prejudice which the trial court could have disbelieved.

All of the evidence must be viewed in the light most favorable to the trial court's ultimate ruling.

We hold that the weight of the factors, when balanced together, leads us to conclude Garcia's right

to speedy trial was not violated.




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IV.   Conclusion

      We affirm the trial court's judgment.



                                                  Jack Carter
                                                  Justice

Date Submitted:      September 29, 2009
Date Decided:        October 2, 2009

Do Not Publish




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