                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00151-CR

                                       Brijido Andres MUNOZ,
                                               Appellant

                                                 v.

                                        The STATE of Texas,
                                              Appellee

                     From the 290th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009-CR-1044B
                             Honorable Melisa Skinner, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 28, 2012

AFFIRMED

           Brijido Andres Munoz was indicted for capital murder. A jury found Munoz guilty of the

lesser included offense of aggravated robbery, and Munoz was sentenced to confinement for

thirty years. Munoz appeals, arguing he was denied his Sixth Amendment right to a speedy trial.

We affirm the judgment.

           On a night in October 2008, Manuel Barrera was killed when three men were attempting

to rob Barrera and his mother-in-law. Munoz was arrested for the crime on November 5, 2008,

and he was indicted for capital murder in February 2009. When his case was called for trial in
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February 2012, Munoz moved to dismiss the indictment, asserting his right to a speedy trial had

been violated. The trial court denied the motion. In his sole point on appeal, Munoz argues the

trial court’s ruling was error.

        We review a trial court’s ruling on a motion to dismiss for want of a speedy trial in light

of the arguments, information, and evidence that was available to the trial court at the time it

ruled. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). We must uphold the trial

court’s ruling if it is supported by the record and is correct under the applicable law. Id. In

determining whether a defendant has been denied his constitutional right to a speedy trial, we use

a balancing test in which the conduct of both the State and the defendant are weighed. Barker v.

Wingo, 407 U.S. 514, 530 (1972); Shaw, 117 S.W.3d at 888. The factors to be considered include

the length of the delay, the reason for the delay, the defendant’s assertion of his speedy trial

right, and the prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530; Shaw,

117 S.W.3d at 888-89. No single factor is necessary or sufficient to establish a violation of the

defendant’s right to a speedy trial. Barker, 407 U.S. at 533; Shaw 117 S.W.3d at 889.

Length of Delay

        A delay approaching one year is sufficient to trigger a speedy trial inquiry. Shaw, 117

S.W.3d at 889. Because the delay of more than three years between Munoz’s arrest and his trial

was far more than the minimum needed to trigger the inquiry, this factor “weighs heavily in

favor of finding a violation of appellant’s right to a speedy trial.” Id.

Reasons for delay

        Under Barker we assign different weights to different reasons for the delay. Barker, 407

U.S. at 531. We weigh a deliberate attempt to delay the trial heavily against the government. Id.;

State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999). We weigh a “more neutral reason

such as negligence or overcrowded courts” less heavily against the State. Barker, 407 U.S. at
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531; Munoz, 991 S.W.2d at 822. “A valid reason for the delay should not be weighed against the

government at all.” Munoz, 991 S.W.2d at 822. And delay attributable in whole or in part to the

defendant may constitute a waiver of a speedy trial claim. Barker, 407 U.S. at 528–30; Munoz,

991 S.W.2d at 822.

       The State has the burden of justifying the delay. Shaw, 117 S.W.3d at 889S90. However,

in the absence of an assigned reason for the delay, we may not presume either a deliberate

attempt by the State to prejudice the defense or a valid reason for the delay. Dragoo v. State, 96

S.W.3d 308, 314 (Tex. Crim. App. 2003). Moreover, in reviewing the trial court’s ruling, we

may only consider the arguments appellant made to the trial court in support of his motion to

dismiss. Id. at 313.

       There was a delay of 39 months in this case – from Munoz’s November 2008 arrest until

his February 2012 trial. However, both in the trial court and in his appellate brief, Munoz

complains only about the nine month delay from the date of the first trial setting in May 2011

until his February 2012 trial, arguing that entire delay was due to the State’s “spurious”

interlocutory appeal.

       The record of a January 11, 2011, scheduling conference indicates the case had recently

been transferred from one trial court to another. The parties advised the second court there had

not been any previous trial setting and the record does not contain any express explanation for

the delay from November 2008 to January 2011. We note, however, that in December 2010,

defense counsel requested and the court approved payment for additional time beyond that

authorized by the plan to pay court-appointed attorneys. The motion asserted the time was

needed to “properly plan, prepare, and investigate the case.” Also in December 2010, the trial

court granted the defense’s motions for appointment of mitigation and psychological experts to

assist counsel in preparation of the case. This suggests the defense was not prepared to try the
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case before then. Nevertheless, because Munoz does not complain about this period of delay and

the State did not attempt to justify the delay, we do not attribute the delay from November 2008

to January 2011 against either party.

       The record of the January 2011 hearing establishes that the first date the court had

available to try a capital case was April 29, 2011, and the prosecutor stated he would be ready

that date. However, defense counsel had scheduling conflicts that precluded a trial setting before

May 31, 2012. Munoz’s attorney objected to that setting because he wanted one of his co-

defendants to be tried first. The court overruled the objection and set the case for a May 31, 2012

trial. The three month delay because of the court’s docket is weighed slightly against the State,

and the one month delay because of defense conflicts is weighed slightly against Munoz. See

Munoz, 991 S.W.2d at 822.

       Munoz’s principal complaint concerns the delay occasioned by the State’s appeal of a

pretrial order signed by the trial court. The trial court held hearings on pretrial motions in April

and May 2011. The court orally denied the defense’s motion to suppress at a hearing on April 7.

The court continued hearing pretrial motions on May 24, and took the defense’s motions in

limine under advisement. On May 25, 2011, the trial court signed an order stating that the

defendant’s motion to suppress was granted as to some of his statements. The State filed a notice

of appeal pursuant to article 44.01 of the Texas Code of Criminal Procedure, certifying that the

evidence suppressed was of substantial importance to the case. See TEX. CODE CRIM. PROC. ANN.

art. 44.01(a)(5) (West Supp. 2012). The State also asserted its right to a stay of the proceedings

pending the disposition of the appeal. See id. art. 44.01(e). The attorneys appeared in the trial

court on May 31, after the notice of appeal had been filed. The trial court stated it was staying

the proceedings, but advised the parties it had signed the order granting the motion to suppress in

error. The trial judge also added the following handwritten annotation at the bottom of the order
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granting the motion to suppress: “Suppression Order signed in error – Denied on the record

4/7/11. Vacated Motion in Limine should have been signed on date above.”

       On July 25, after the appellate record had been filed, but before any briefing in the

appeal, the State’s appellate counsel filed a motion to abate the appeal and restore jurisdiction to

the trial court for the purpose of signing an order that actually reflected the trial court’s rulings.

Before the appeal could be abated, the trial judge filed a written response to the State’s motion.

This court ruled that the trial court’s written response to the motion to abate was an unambiguous

denial of the motion to suppress, and on August 31, 2011, we issued an order dismissing the

appeal for want of jurisdiction and lifted the stay. This court’s mandate issued November 11,

2011, and trial was held February 2, 2012.

       Munoz does not challenge the State’s right to take an interlocutory appeal from an order

granting a motion to suppress, nor its argument that the evidence the trial court’s May 25 order

purported to suppress was of substantial importance to the State’s case. Rather, he contends the

appeal was “outrageous” and “spurious” because the trial court made it clear to the parties that it

intended to deny the motion to suppress. We decline to charge the three month delay occasioned

by the appeal against the State. The trial court’s written order suppressed evidence, and its

handwritten clarification on May 31, after the notice of appeal was filed, was ambiguous at best

and arguably did not withdraw or vacate the appealed order. Nothing in the record suggests the

State acted with intent to delay the trial. The State was exercising its statutory right to appeal an

adverse pretrial evidentiary ruling that it considered important to proving its case. We conclude

the State justified the three-month delay caused by the appeal.

       The record is silent as to why no party sought early issuance of the mandate from this

court or why the case was not set for trial until four months after the mandate issued. Because the

six-month delay from August 31, 2011 until trial is unexplained, we weigh this part of the delay
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slightly against the State. However, we find no evidence of any deliberate attempt by the State to

delay or to prejudice the defense.

Munoz’s assertion of his right

         A defendant’s failure to seek a speedy trial makes it difficult for him to prevail on a claim

that his right to a speedy trial was violated. Barker, 407 U.S. at 532; Shaw, 117 S.W.3d at 890. A

defendant’s failure to timely demand a speedy trial “indicates strongly that he did not really want

one and that he was not prejudiced by not having one.” Shaw, 117 S.W.3d at 890. “[T]he longer

the delay becomes, the more likely it is that a defendant who really wanted a speedy trial would

take some action to obtain one. Thus, a defendant’s inaction weighs more heavily against a

violation the longer the delay becomes.” Id. (citations omitted). Also relevant to the inquiry is

whether the defendant actually asked for a prompt trial. Although a motion to dismiss gives

notice to the State of a speedy trial claim, asking for a dismissal instead of a prompt trial

attenuates the strength of the claim. Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App.

1983); Marquez v. State, 165 S.W.3d 741, 749 (Tex. App.— San Antonio 2005, pet. ref’d).

         The first complaint about delay that appears in the record is in a motion Munoz filed

November 1, 2011, three years after his arrest. Munoz sought release on personal bond or

reduction of his bail because of the delay in bringing him to trial. However, the motion did not

ask for a prompt trial and was not presented to the court until February 21, 2012. When the case

was called for trial on February 21, Munoz moved to dismiss the indictment because he had been

denied a speedy trial. 1 Munoz failed to assert his rights for over three years, until the day trial

started, although he was represented by counsel at all times. Munoz’s acquiescence to the
1
  Munoz contends that he asserted his right to a speedy trial by announcing ready for trial on May 31, 2011. When
the case was called in February 2012, the trial judge stated it was her recollection that the defense had been ready
that date. However, the reporter’s record of the May 31, 2011 proceeding reflects that when the parties appeared
before the court, the State had already filed its notice of appeal. The trial court stated it was staying the proceedings
and the case was not called for trial. The court did not ask for announcements, none were made, and Munoz did not
assert a right to a speedy trial on the record.

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lengthy delay “weighs very heavily against” finding a violation of the speedy trial right. See

Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 315.

Prejudice to the defendant resulting from the delay

       A defendant claiming his right to a speedy trial has been violated has the burden to make

some showing of prejudice. Munoz, 991 S.W.2d at 826. Munoz did not assert he had been

prejudiced in any way when he presented his motion to dismiss the indictment to the trial court.

On appeal, he contends he was presumptively prejudiced by his lengthy pretrial incarceration.

Munoz made no allegation or showing that he suffered excessive anxiety or concern because of

the delay. Nor does he allege that his ability to defend himself was compromised in any way by

the delay. See Shaw, 117 S.W.3d at 890-91 (discussing interests protected by right to speedy

trial). We conclude Munoz’s showing of prejudice was minimal and any presumed prejudice is

“extenuated by appellant’s longtime acquiescence in the delay.” See Shaw, 117 S.W.3d at 890.

Conclusion

       The length of the delay and the States’ failure to justify parts of it weigh against the State.

However, Munoz’s failure to demonstrate any prejudice, and his long acquiescence in the delay

weigh strongly against a finding that his right to a speedy trial was violated. We conclude the

trial court’s ruling denying Munoz’s motion to dismiss the indictment is supported by the record

and the law. Accordingly, we affirm the trial court’s judgment.

                                                  Steven C. Hilbig, Justice

DO NOT PUBLISH




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