                            NUMBER 13-11-00012-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

JOSE GUADALUPE CASTILLO,                                                    Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                     On appeal from the 24th District Court
                          of Jackson County, Texas.


                           MEMORANDUM OPINION
             Before Justices Rodriguez, Benavides, and Perkes
                Memorandum Opinion by Justice Benavides
       Appellant Jose Guadalupe Castillo appeals the trial court’s denial of his motion to

dismiss his indictment on the grounds that it violated his right to a speedy trial.

Because we hold that there was no violation of Castillo’s sixth amendment right to a

speedy trial, we affirm.
                                      I. BACKGROUND

       The record shows that Castillo was taken into custody in November of 2009.           He

was charged by indictment with arson of a habitation, see TEX. PENAL CODE ANN. §

28.02(a)(2) (West 2011), and the charge was enhanced with a prior felony conviction for

possession of a firearm by a prohibited person.      See id. § 46.04 (West 2011). The trial

court appointed attorney Will Denton to represent Castillo on November 24, 2009.

Nearly eight months later, Denton filed a motion to withdraw as counsel for Castillo,

citing an illness in his family and his impending retirement as grounds for the withdrawal.

The trial court granted the motion and substituted attorney Micah Hatley as counsel of

record for Castillo on August 12, 2010.      Less than a month later, on August 30, 2010,

Hatley withdrew, and the trial court appointed Bill White to represent Castillo at trial.

       Castillo waived his right to a jury trial. Prior to the bench trial, he filed a motion to

dismiss the indictment based on the thirteen-month delay between his arrest and his

date of trial.   At the hearing on the motion, the trial court heard evidence from the

prosecution that the State was “ready, willing, and able to try Mr. Castillo at any time”

during attorney Denton’s representation of Castillo.       However, the State argued that

attorney Denton repeatedly reset the case because plea negotiations were ongoing and

Denton believed he could get a more favorable result for his client if he continued

negotiating. The prosecutor argued that “the resets were signed by [Castillo] agreeing

to the resets by Mr. Denton.”




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       The trial court denied the motion to dismiss and proceeded with the bench trial.

The trial court found Castillo guilty of arson of a habitation and assessed fifty years of

imprisonment in the Texas Department of Criminal Justice—Institutional Division, with a

$5,000 fine and court costs.   Castillo appealed.

                                         II. DISCUSSION

A.     Standard of Review and Applicable Law

       We review alleged violations of the right to a speedy trial under a bifurcated

standard of review:    all legal issues are considered under a de novo standard, but we

give deference to the trial court’s factual findings.     Kelly v. State, 163 S.W.3d 722, 726

(Tex. Crim. App. 2005).

       Criminal defendants are entitled to a speedy trial under both federal and state

constitutions. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10.        The United States

Supreme Court has held that the following factors must be weighed by a reviewing court

to determine whether the defendant's constitutional right to a speedy trial has been

violated:

       (1)    the length of the delay;

       (2)    the reason for the delay;

       (3)    the defendant's assertion of his speedy trial right; and

       (4)    prejudice to the defendant from the delay.

Barker v. Wingo, 407 U.S. 514, 515 (1972). Although the constitutional speedy trial

rights of Texas and the United States are independent, Texas courts look to federal

courts in determining state constitutional rights and use the Barker test to determine

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whether a defendant has been denied his state speedy trial right.      See Harris v. State,

827 S.W.2d 949, 956 (Tex. Crim. App. 1992); State v. Flores, 951 S.W.2d 134, 137 (Tex.

App.—Corpus Christi 1997, no pet.).

       A speedy trial claim is not ripe unless a period of time has passed that is

unreasonable under the circumstances.        See Doggett v. United States, 505 U.S. 647,

651–52 (1990).      Generally speaking, a one-year delay is sufficient to trigger a

speedy-trial inquiry.   See Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003).

However, a delay caused in whole or in part by the defendant can constitute a waiver of

a speedy trial claim.   See State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999).

B.     Analysis

       Here, the record shows that Castillo’s defense strategy was the primary reason

for the thirteen-month delay from his time of arrest to the time of trial. According to the

testimony adduced at the hearing, Castillo’s first attorney, Denton, repeatedly asked for

resets as part of Castillo’s defense strategy; Denton believed that his continued plea

negotiations would be successful.    See Doggett, 505 U.S. 651–52. The testimony also

showed that Castillo agreed to the resets.    In light of this testimony, the thirteen-month

delay to trial was not unreasonable.     Further, this delay was caused in part by the

defendant. See Munoz, 991 S.W.2d at 822.          Accordingly, we hold that the trial court

did not did not err in overruling Castillo’s motion to dismiss.   See Kelly, 163 S.W.3d at

726.




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                                     III. CONCLUSION

       We affirm the trial court’s judgment.




                                                       ________________________
                                                       GINA M. BENAVIDES,
                                                       Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
28th day of June, 2012.




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