                              Fourth Court of Appeals
                                    San Antonio, Texas
                                            OPINION
                                       No. 04-17-00568-CR

                                       The STATE of Texas,
                                            Appellant

                                                 v.

                                          Martin LOPEZ,
                                             Appellee

                     From the County Court at Law No. 7, Bexar County, Texas
                                     Trial Court No. 549327
                             Honorable Genie Wright, Judge Presiding

                             OPINION ON DENIAL OF REHEARING
Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: October 24, 2018

AFFIRMED

           The State’s motion for rehearing is denied. However, we withdraw our August 15, 2018

opinion and and judgment and substitute those issued today. The State appeals the trial court’s

order dismissing a misdemeanor assault charge against Martin Lopez on speedy trial grounds. As

the parties acknowledge, the facts of this case are relatively uncommon in speedy trial cases.

Lopez, who suffers from mental health disorders, was arrested for “putting his teeth [on his elderly

mother’s face] while trying to bite her.” Lopez was placed in county jail, and he could not make
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bail. The State took nearly three months to decide whether a felony or misdemeanor assault charge

would be more appropriate, determining ultimately to file a misdemeanor charge. A visiting judge

thereafter denied Lopez’s request for bail and set trial for twelve days later. Despite Lopez’s trial

counsel raising the issue of his incompetence to stand trial at the pretrial hearing, Lopez was not

evaluated. At trial, the State and Lopez’s trial counsel expressed concerns about Lopez’s

competency. Based on the length of Lopez’s pretrial incarceration and inevitable future delays for

competency proceedings, Lopez requested that the trial court dismiss the case on speedy trial

grounds. The trial court agreed and dismissed the misdemeanor assault charge. Considering the

factors set out by the Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514 (1972),

we conclude the trial court did not err and, accordingly, affirm the trial court’s order.

                                           BACKGROUND

       On April 18, 2017, Lopez allegedly “put[] his teeth [on his elderly mother’s face] while

trying to bite her.” Lopez was arrested that day, and he was unable to make bail. The State opened

a felony case against Lopez, but Lopez was never indicted.

       While Lopez was in jail, Lopez’s appointed trial counsel received a July 2, 2017 notice

under article 17.151. See TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1 (West 2015). The notice

stated Lopez had been in custody for seventy-five days awaiting an indictment. It further stated:

       Pursuant to Article 17.151 section 1 of the Texas Code of Criminal Procedure, a
       defendant who is detained in jail pending trial of accusation against them must be
       released either on personal bond or by reducing the amount of bail required, if the
       State is not ready for trial of the criminal action for which they are being detained
       within 90 days from the commencement of their detention if they are accused of a
       felony.

On July 12, 2017, five days before the ninety-day deadline, the State filed a misdemeanor assault

charge against Lopez and sought to keep him incarcerated in county jail.




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        At the July 27, 2017 pretrial hearing before a visiting judge, Lopez raised the issue of his

competency to stand trial and requested a personal recognizance bond. The visiting judge denied

Lopez’s request. Although the visiting judge ordered Lopez’s mental competence to be evaluated

over the weekend, no evaluation was conducted. The trial date was set for twelve days later on

August 8, 2017.

        On August 8, 2017, the trial court called the case and began by asking Lopez questions,

with the permission of his trial counsel. Lopez testified he has mental issues, but had no present

desire to harm himself or others. Lopez testified he wanted the case dismissed because he had been

in jail for four months. Lopez’s trial counsel orally moved for a speedy trial, requesting that the

case be dismissed.

        The State responded it had a right to notice on the speedy trial motion, and that it was ready

to proceed to trial. However, the State raised “concerns about [Lopez]’s mental health and

competency to proceed to trial, possibly.” The trial court then stated:

        All right. This is what I’m going to put on the record. This man has no place to live.
        Because of a prior suicide watch, Haven for Hope will not take him. He has been
        in jail. There is some serious questions about whether or not anybody can proceed
        with this case. There are serious questions about whether his mother will even
        testify against him. She is currently in possession of a protective order -- which
        means you have to stay away from her. So I feel like the victim in this case has been
        protected, and she’s quite involved in the case from what I’ve learned from the
        attorney, and she’s quite vocal about what she wants to accomplish.

The State did not object to the trial court taking notice of these matters.

        The proceeding went off the record, and Lopez’s trial counsel filed a written Motion for

Speedy Trial. Back on the record, the State again asserted its right to notice on the motion. The

trial court overruled the State’s objection, noting the case was set for trial on that date and that the

State had announced ready to proceed. The trial court admitted into evidence the article 17.151




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notice that, together with Lopez’s testimony, showed Lopez had spent 112 consecutive days in

county jail as of the August 8, 2017 trial date.

       The trial court asked the State to explain the delay in the case up to that point. The following

exchange occurred:

       [THE STATE]: Your Honor, I don’t believe they found no assault took place. They
       dismissed it and refiled it as a misdemeanor because I think they believed it was a
       more appropriate charge than the felony.

       [TRIAL COUNSEL]: I believe, Your Honor, they could say an assault took place,
       but there was no bodily injury, which was required for the felony.

       [THE STATE]: There was bodily injury in the case.

       THE COURT: Well, here are our choices: The man has spent what would be the
       equivalent of almost a year in jail if you’re giving him two for one. He is not
       competent. We can’t try the case.

       [TRIAL COUNSEL]: Your Honor, even if we sent him for a competency hearing,
       that would be another month and he would be in jail for a full year.

       THE COURT: And he would come back as being incompetent to stand trial.

       [TRIAL COUNSEL]: Correct.

       THE COURT: So I’m going to grant your Motion for a Speedy Trial, and I’m going
       on the record saying, State, you’re right. This is something that we need to take care
       of in court and the Court has no means to take care of it. We can’t try him. It’s just
       not right to leave him in jail, and we really don’t have any timely services to offer
       him.

Lopez’s trial counsel further stated that both he and the State agreed there was an issue as to

Lopez’s competency to stand trial or to enter a plea.

       The trial court stated it had no choice but to grant Lopez’s Motion for Speedy Trial and to

dismiss the case. The trial court and trial counsel explained to Lopez he could not see or contact

his mother because she had a protective order. They also explained to Lopez that he was expected

to seek mental health counseling immediately. Before the end of the hearing, the State argued the

trial court could not dismiss the case because article 46B.005 of the Texas Code of Criminal
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Procedure required the court to order a competency evaluation. Apparently disagreeing with the

State, the trial court signed an order granting Lopez’s Motion for Speedy Trial and dismissing the

misdemeanor assault charge. The State timely filed a notice of appeal.

                      THE STATE’S SOLE ISSUE & ARGUMENTS ON APPEAL

       The State presents a single issue on appeal, “Did the trial court err by failing to order a

competency evaluation and, instead, dismissing the information against [Lopez] less than four

months after he was arrested?” The State argues that once the trial court believed Lopez might be

incompetent to enter a plea or stand trial, the trial court had no discretion but to refer Lopez for a

competency evaluation. See TEX. CODE CRIM. PROC. ANN. art. 46B.005(a) (West 2018). The State

further argues the trial court lacked a basis to dismiss the case either under the Sixth Amendment

or under Chapter 46B of the Texas Code of Criminal Procedure.

       The State does not raise an issue or argue that the trial court erred by granting Lopez’s

Motion for Speedy Trial based on the State not being provided with sufficient notice. The State

also does not raise an issue or argue that the trial court improperly took judicial notice of any of

the facts that the trial court noted for the record. In its reply brief, the State argues we may not

consider any matters at the pretrial hearing before the visiting judge because Lopez “has not

supplemented this Court with a record to support [his] claims” about the hearing. We disagree for

two reasons. First, on August 8, 2017, the parties agreed that certain matters were raised at the

pretrial hearing before the visiting judge. Thus, the record before us reflects some of the matters

raised at the pretrial hearing. Second, because this is a State’s appeal, the State has the burden to

present a sufficient record demonstrating its entitlement to the relief it seeks. See State v. Weiss, 8

S.W.3d 342, 344 (Tex. App.—Beaumont 1999, no pet.); State v. Thomas, 938 S.W.2d 540, 542

(Tex. App.—Dallas 1997, no pet.); see also Newman v. State, 331 S.W.3d 447, 450 (Tex. Crim.

App. 2011) (explaining an appellant must “present a record demonstrating that the trial court’s
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decision should be overturned.”). We therefore turn to address the State’s sole issue in light of the

record presented by the State.

                MANDATORY COMPETENCY EVALUATION UNDER CHAPTER 46B

       The State argues the trial court erred under chapter 46B of the Texas Code of Criminal

Procedure by not allowing the prosecution to proceed and ordering a competency evaluation. We

review a trial court’s implied decision not to order a competency evaluation for an abuse of

discretion and consider the totality of the surrounding facts. See Gray v. State, 257 S.W.3d 825,

827 (Tex. App.—Texarkana 2008, pet. ref’d). Article 46B.005 of the Texas Code of Criminal

Procedure provides, “If after an informal inquiry the court determines that evidence exists to

support a finding of incompetency, the court shall order an examination . . . to determine whether

the defendant is incompetent to stand trial in a criminal case.” TEX. CRIM. PROC. CODE ANN.

§ 46B.005(a). Generally, article 46B.005(a)’s provision for ordering a competency examination

imposes a mandatory duty on the trial court. See id.; TEX. GOV’T CODE ANN. § 311.016(2) (West

2013) (“‘Shall’ imposes a duty.”). But we must consider the totality of the surrounding facts. See

Gray, 257 S.W.3d at 827.

       Here, Lopez argued his prosecution violated his constitutional right to a speedy trial. We

may not construe chapter 46B, a state statute, in conflict with the constitution of the United States

or of the State of Texas. See U.S. CONST. art. VI, cl. 2; see also TEX. GOV’T CODE ANN.

§ 311.021(1); State v. Cortez, 543 S.W.3d 198, 206 (Tex. Crim. App. 2018) (“We have a duty to

narrowly construe statutes to avoid a constitutional violation.”). We conclude a defendant must

not be forced to undergo a competency evaluation in furtherance of his prosecution if his

prosecution violates his constitutional rights. See TEX. GOV’T CODE ANN. § 311.021(1); Cortez,

543 S.W.3d at 206.



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       “If a violation of the speedy trial right is established, the only possible remedy is dismissal

of the prosecution.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003) (citing Strunk

v. United States, 412 U.S. 434, 440 (1973)). Thus, whether the trial court erred under article

46B.005(a) by not ordering a competency evaluation turns on whether the trial court erred by

granting Lopez’s motion to dismiss based on his constitutional right to a speedy trial. If the trial

court erred, and if a remand were necessary for further proceedings, we agree with the State that

any further proceedings would require a competency evaluation. But we must determine, as an

initial matter, whether the trial court erred by dismissing the misdemeanor assault charge on speedy

trial grounds.

                                   RIGHT TO A SPEEDY TRIAL

       The Sixth Amendment to the U.S. Constitution guarantees the accused in a criminal

prosecution the right to a speedy trial. Hopper v. State, 520 S.W.3d 915, 923 (Tex. Crim. App.

2017) (citing U.S. CONST. amend. 6; Vermont v. Brillon, 556 U.S. 81, 89 (2009)); see Klopfer v.

North Carolina, 386 U.S. 213, 222-23 (1967) (holding Sixth Amendment speedy trial right applies

to states via the Fourteenth Amendment). The Texas Constitution similarly guarantees the accused

a speedy trial in a criminal prosecution. TEX. CONST. art. 1, § 10. Although it is unclear whether

Lopez asserted his right to a speedy trial under the U.S. Constitution, the Texas Constitution, or

both, we apply the same test. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). When

evaluating a speedy trial claim under Barker v. Wingo, courts generally must “consider the length

of delay, the reasons for delay, to what extent the defendant has asserted his right, and any

prejudice suffered by the defendant.” Hopper, 520 S.W.3d at 923 (citing Barker, 407 U.S. at 530-

32); see Harris, 827 S.W.2d at 956. “The length of the delay is to some extent a triggering

mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for

inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530. The conduct of
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both the State and the defense must be weighed in balancing the Barker factors, and no single

factor is an essential or sufficient condition to the finding of a speedy trial violation. See id. at 530,

533. “No one factor possesses ‘talismanic qualities,’ thus courts must ‘engage in a difficult and

sensitive balancing process’ in each individual case.” Zamorano v. State, 84 S.W.3d 643, 648 (Tex.

Crim. App. 2002) (quoting Barker, 407 U.S. at 533).

        We apply a bifurcated standard of review. Id. “When reviewing the trial court’s application

of the Barker test, we give almost total deference to the trial court’s historical findings of fact that

the record supports, and we draw reasonable inferences from those facts necessary to support the

trial court’s findings.” Balderas v. State, 517 S.W.3d 756, 767-68 (Tex. Crim. App. 2016). “An

appellate court reviewing a trial court’s ruling on a motion to dismiss for want of a speedy trial

must do so 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). However, we

do not consider “evidence that was not before the trial court when it made its ruling.” Balderas,

517 S.W.3d at 768.

        “Review of the individual Barker factors necessarily involves fact determinations and legal

conclusions, but the balancing test as a whole is a purely legal question that we review de novo.”

Id. (citing Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997)). Because Lopez

prevailed on his speedy trial claim, “we presume the trial court resolved any disputed fact issues

in [his] favor.” State v. Ritter, 531 S.W.3d 366, 371 (Tex. App.—Texarkana 2017, no pet.) (citing

State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)). When, as here, the State did not

request, and the trial court did not make, findings of fact and conclusions of law, we will imply all

findings necessary to support the trial court’s ruling if those findings are supported by the record.

Id.



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A. The Length of the Delay

          The first factor we must consider is the length of the delay. Barker, 407 U.S. at 530;

Hopper, 520 S.W.3d at 924; Wisser v. State, 350 S.W.3d 161, 165 (Tex. App.—San Antonio 2011,

no pet.). This first factor involves “a double inquiry: A court must consider whether the delay is

sufficiently long to even trigger a further analysis under the Barker factors, and if it is, then the

court must consider to what extent it stretches beyond this triggering length.” Hopper, 520 S.W.3d

at 924 (citing Doggett v. United States, 505 U.S. 647, 651-52 (1992)). The length of delay is

measured from the time the defendant is arrested or formally accused, whichever is first. Dragoo,

96 S.W.3d at 313 (citing United States v. Marion, 404 U.S. 307, 313 (1971)).

          1. Whether the length of the delay was presumptively prejudicial

          “[C]ourts have usually tried to settle upon some time period after which . . . it makes sense

to inquire further into why the defendant has not been tried more promptly.” 5 WAYNE R. LAFAVE,

ET AL.,   CRIMINAL PROCEDURE, § 18.2(b), p. 130 (4th ed. 2015). The Court of Criminal Appeals

has noted that other courts generally hold a delay of eight months to a year, or longer, is

presumptively prejudicial and triggers a speedy trial analysis. See, e.g., Shaw, 117 S.W.3d at 889;

Harris, 827 S.W.2d at 956. And, in felony sexual assault cases and cases in which defendants are

released on bond, the Court of Criminal Appeals has recognized that a delay of four months is not

sufficient while a seventeen-month delay is. Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim.

App. [Panel Op.] 1983) (holding delay of seventeen months in prosecution for rape was

presumptively prejudicial); Pete v. State, 501 S.W.2d 683, 687 (Tex. Crim. App. 1973) (holding

no presumptive prejudice when defendant, charged with rape and incarcerated on burglary

conviction, was tried four months after indictment). However, “there are some cases which do not

fit this mold.” LAFAVE, supra, at § 18.2(b), p. 130.



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       There is “no constitutional basis for holding that the speedy trial right can be quantified

into a specified number of days or months.” Barker, 407 U.S. at 523. And “[t]here is no set time

element that triggers the analysis.” Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008).

“Barker’s formulation necessarily compels courts to approach speedy trial cases on an ad hoc

basis.” Brillon, 556 U.S. at 91 (internal quotation omitted). The right to a speedy trial is necessarily

relative, and whether the length of a delay is presumptively prejudicial and triggers an inquiry into

the other Barker factors “is necessarily dependent upon the peculiar circumstances of the case.”

Barker, 407 U.S. at 522, 530-31.

       In this context, “prejudice” or “prejudicial” refers to (1) oppressive pretrial incarceration;

(2) anxiety or concern related to the pending criminal charges; and (3) impairment of the accused’s

defense. Shaw, 117 S.W.3d at 890 (citing Barker, 407 U.S. at 532). Circumstances of a case that

can affect whether the delay is presumptively prejudicial therefore may include the nature of the

charged offense, and whether the defendant can make bail or must await trial while confined in

jail. See Barker, 407 U.S. at 520 (noting, “If an accused cannot make bail, he is generally

confined . . . in a local jail.”). “[T]he delay that can be tolerated for an ordinary street crime is

considerably less than for a serious, complex conspiracy charge.” Id. at 531. The State is entitled

to a reasonable period to prepare its case. Cf. Shaw, 117 S.W.3d at 889-90 (noting, in aggravated

sexual assault case, a three-month period between indictment and trial was a reasonable time for

State to prepare its case). But “unreasonable delay in run-of-the-mill criminal cases cannot be

justified by simply asserting that the public resources provided by the States’ criminal justice

system are limited and that each case must await its turn.” Barker, 407 U.S. at 538 (White, J.,

concurring).

       The State cites an unpublished case from the El Paso court of appeals involving a four-

month delay. State v. Wester, No. 08-16-00105-CR, 2017 WL 4277584 (Tex. App.—El Paso Sept.
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27, 2017, no pet.) (mem. op., not designated for publication). The court of appeals noted courts

must consider the “substance of the case” and the seriousness and complexity of the offense. Id. at

*3. Wester, the defendant, was released on bond the day after he was arrested, but he was

subsequently arrested on new, federal charges. Id. at *1. The court of appeals, relying on felony

sexual assault cases, held a four-month delay did not trigger a full Barker analysis when the

defendant was charged with first-degree-felony drug possession. Id. at *1, 3.

        The State also cites State v. Owens, which involved a seven-month delay. 778 S.W.2d 135,

136 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d). In Owens, the delay was 223 days from the

date of the defendant’s arrest to the date of his indictment for two counts of burglary of a habitation.

Id. Notably, the defendant was incarcerated in county jail during that time. Id. Two days after the

indictment, the defendant filed an application for writ of habeas corpus, raised his right to a speedy

trial, and requested dismissal of the charges. Id. The trial court granted the defendant relief, and in

considering the State’s appeal, the court of appeals affirmed. Id. Addressing Barker’s length-of-

delay factor, the court of appeals relied on Barker, noting, “A delay that can be tolerated for an

‘ordinary street crime’ is considerably less than the time for a serious, complex conspiracy charge.”

Id. at 137 (citing Barker, 407 U.S. at 530). The court then held burglary of a habitation is an

“ordinary street crime,” and proceeded to analyze the remaining Barker factors. Id. at 137-38.

Although the State asks us not to follow Owens for several reasons, those reasons do not relate to

the Owens court’s emphasis on Barker’s principle that we must consider the nature and complexity

of the offense.

        At least one court has held that under Barker, a three-and-half-month delay can trigger an

analysis of the remaining Barker factors, depending upon the specific facts of the case. State v.

Reaves, 376 So. 2d 136, 138 (La. 1979) (noting the court “assiduously follow[s] the Barker v.

Wingo analysis in evaluating Louisiana speedy trial claims”). In Reaves, the defendant was arrested
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and charged with misdemeanor possession of marijuana, and he was released on bail. Id. at 137.

The court reset the trial multiple times over the course of several months because the State was

unable to secure its witnesses’ attendance. Id. The court explained that although the case had been

pending for only three and a half months:

       the mere length of the delay does not determine the speedy trial issue. Since this
       case involves a simple misdemeanor offense, possession of a single marijuana
       cigarette, the constitution tolerates relatively brief delays. Accordingly, we must
       examine the peculiar circumstances of the case to find if the length of the delay and
       the closely related factor, the reason for the delay, provoke a speedy trial inquiry.

Id. at 138 (internal citations omitted). The Reaves court proceeded to analyze the remaining Barker

factors and affirmed the trial court’s dismissal of the defendant’s misdemeanor drug possession

charge on speedy trial grounds. Id. at 138-39.

       The State argues Wester is good law, Owens is bad law, and that we should follow the

former. But Wester and Owens, as well as Reaves, read in light of Barker’s principles, as reiterated

by the Court of Criminal Appeals, can be reconciled based on their different facts. Under Barker,

we may not quantify the exact length of the time that will, in all cases, trigger or not trigger an

analysis of the remaining Barker factors. Barker, 407 U.S. at 523; Cantu, 253 S.W.3d at 281. The

above-discussed authorities are all consistent with the principle that we must consider the delay in

light of the substance, seriousness, and complexity of the offense, as well as whether the defendant

has been incarcerated in jail awaiting trial. See Wester, 2017 WL 4277584, at *1-3; Owens, 778

S.W.2d at 136-38; Reaves, 376 So. 2d at 138-39; see also Doggett, 505 U.S. at 652 n.1 (noting

whether a specific delay is presumptively prejudicial “depend[s] on the nature of the charges,” and

citing LAFAVE, supra, § 18.2); Barker, 407 U.S. at 531 (noting delay should be viewed in light of

seriousness and complexity of the charges).

       With these principles in mind, we turn to the facts of this case. As of the August 8, 2017

trial date, Lopez had been accused by virtue of his arrest for 112 consecutive days. See Dragoo,
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96 S.W.3d at 313 (providing delay measured from time of arrest). Although the State announced

at the August 8, 2017 hearing it was ready to proceed to trial, the parties agreed there was

uncertainty as to whether Lopez was competent to stand trial. See TEX. CODE CRIM. PROC. ANN.

art. 46B.003(a) (providing an incompetent defendant may not be tried). Had Lopez not asserted

his constitutional right to a speedy trial, the trial court would have had no discretion but to delay

trial and order a competency evaluation. See id. art. 46.005(a). The trial court, as a factfinder, was

entitled to infer there necessarily would be additional delays before the case could proceed to trial

on Lopez’s guilt. Thus, the record supports an implied finding that the delay did not consist of only

112 days, but necessarily longer because not dismissing the charge would have required an

evaluation of Lopez’s competency to stand trial and possibly subsequent competency proceedings

before the trial court could have proceeded with a trial on the misdemeanor assault charge. See id.

arts. 46B.004(d), 46B.005(a), (b).

       It is undisputed Lopez was incarcerated for 112 days because he could not make bail. The

trial court considered the time Lopez had been incarcerated, as well as the likelihood of additional

delays due to the question of Lopez’s competency, in light of the nature of the charged offense and

the maximum punishment available. Lopez was charged with a Class A misdemeanor, the

maximum punishment for which is a $4,000 fine and confinement in jail for a term not to exceed

one year. See TEX. PENAL CODE ANN. §§ 12.21, 22.01(a)(3), (c)(1) (West 2011 & Supp. 2018).

Ordinarily, a defendant who is detained in jail pending trial of an accusation against him must be

released on personal bond if the state is not ready for trial within “30 days from the commencement

of his detention if he is accused of a misdemeanor punishable by a sentence of imprisonment in

jail for more than 180 days.” TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1(2). As the trial court

noted, Lopez had “spent what would be the equivalent of almost a year in jail if you’re giving him

two for one.” The trial court was also presented with the prospect that Lopez would be determined
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incompetent to stand trial and further confined. See TEX. CODE CRIM. PROC. ANN. art. 46B.0095(a)

(West 2018) (providing a defendant incompetent to stand trial may be institutionalized for a period

of time up to “the maximum term provided by law for the offense”).

       Furthermore, the facts alleged in support of the information and complaint were that Lopez

“put[] his teeth [on his elderly mother’s face] while trying to bite her” “when [he] knew and should

reasonably have believed that [she] would regard the contact as offensive and provocative.” Unlike

the cases upon which the State primarily relies, this case does not involve a complex factual

scenario, a felony offense, or a defendant who has been released on bail pending trial. This case,

like Reaves, involves a defendant charged with a relatively straightforward misdemeanor offense.

See 376 So. 2d at 138. The facts here present a stronger case than Reaves for concluding the delay

was presumptively prejudicial because the Reaves defendant was released on bail and his claim to

prejudice was missing six days of work to be present for multiple trial settings. Id. at 139. Lopez,

on the other hand, could not make bail and had spent 112 days incarcerated on a misdemeanor

offense.

       Consistent with Barker and our sister courts, we consider the length of delay and the

amount of time Lopez spent in the county jail in light of the substance, seriousness, and complexity

of the offense. After all, a primary purpose of the right to a speedy trial is to prevent undue and

oppressive pretrial incarceration. Marion, 404 U.S. at 320. “The time spent in jail awaiting trial

has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and

it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time

spent in jail is simply dead time.” Barker, 407 U.S. at 532-33. We conclude that, based on the

specific facts presented by this case, the delay in this case was presumptively prejudicial and

sufficient to trigger an analysis of the remaining Barker factors.



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       2. The extent to which the delay stretches beyond the triggering length.

       The second inquiry under the length-of-delay factor is the length of the total delay,

including the delay beyond the triggering length. See Hopper, 520 S.W.3d at 924. As of August 8,

2017, Lopez had been incarcerated for 112 days on a misdemeanor offense. As we previously

noted, the trial court was entitled to infer additional delays would be necessary if the trial court

denied Lopez’s Motion for Speedy Trial. Lopez’s trial counsel argued the delay for a competency

hearing would be approximately one month and Lopez could be confined for up to a year; the State

did not disagree or argue otherwise. See Shaw, 117 S.W.3d at 889 (requiring us to consider the

arguments and information available to the trial court). Considering the 112-day length of Lopez’s

pretrial incarceration, the simplicity of the offense, the maximum sentence for the charged offense,

a reasonable time for the State to prepare this case, and an additional delay would be necessitated

by the unresolved question of Lopez’s competency to stand trial, we conclude the length of the

delay in this case weighs slightly against the State.

B. The Reasons for Delay

       The next factor we must consider is the reasons for the delay. See Hopper, 520 S.W.3d at

924. “The burden of justifying the delay is on the State.” Voda v. State, 545 S.W.3d 734, 742 (Tex.

App.—Houston [14th Dist.] 2018, no pet.) (citing Cantu, 253 S.W.3d at 280). “In evaluating the

State’s reason for the delay, we assign different weights for different reasons. Valid reasons for

delay do not weigh against the State, whereas bad-faith delays weigh heavily against the State.”

Id. (internal citations omitted). “A more neutral reason, such as negligence, will weigh less heavily

against the State.” Id. “In the absence of an assigned reason for the delay by the State, we may

presume neither a deliberate attempt to prejudice the defense nor a valid reason for the delay.” Id.

(citing Dragoo, 96 S.W.3d at 314).



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         The record shows there are two 1 delays in this case we must consider. The first delay—the

112-day period from Lopez’s arrest to the August 8, 2017 trial date—was caused primarily by the

State’s decision to pursue a felony assault charge initially, and then to refile the case against Lopez

as a misdemeanor. The parties disputed in the trial court whether there was any evidence showing

Lopez’s mother suffered a bodily injury that would support charging a felony. The State explained

the State refiled the case as a misdemeanor because the State likely “believed it was a more

appropriate charge than the felony.” The trial court was not bound to accept the State’s explanation.

And the trial court was entitled to infer the State should have filed the misdemeanor charge from

the outset either because the misdemeanor charge was more appropriate or because the State had

no evidence to prosecute the case as a felony. Based on the reason the State assigned for the delay,

the trial court could have impliedly found the State was at least negligent by initially filing the case

as a felony when the case should or must have been filed as a misdemeanor from the outset.

         In its motion for rehearing, the State argues the trial court was not entitled to rely on the

representations of the State’s counsel unless “counsel’s representations are based on matters which

trial counsel has first-hand knowledge.” First, the record does not establish that the State’s counsel

lacked first-hand knowledge about the reason for the delay in this case. Cf. Gonzales v. State, 435

S.W.3d 801, 811 (Tex. Crim. App. 2014) (rejecting appellant’s reliance on State’s argument when



1
  We note the record supports a possible third delay if Lopez were determined competent to stand trial. The trial court
recited for the record, with no objection from the State, facts suggesting Lopez’s mother was not willing to testify
against Lopez and was simply using the criminal prosecution to keep Lopez in jail. The State did not complain on
appeal that the trial court improperly took judicial notice of these matters until its motion for rehearing on appeal. See
TEX. R. APP. 38.1(i); Riles v. State, 452 S.W.3d 333, 336 (Tex. Crim. App. 2015) (affirming court of appeals that held
“new issues may not be raised through a motion for rehearing”); see also Lighteard v. State, No. 04-09-00021-CR,
2010 WL 1997723, at *2 (Tex. App.—San Antonio May 19, 2010, no pet.) (mem. op., not designated for publication)
(“A trial court may take judicial notice when requested by a party or sua sponte.”). Thus, even if Lopez were
determined to be competent, the trial court clearly questioned whether there would ever be a trial in this case. The trial
court noted Lopez’s mother had been “very vocal” about her intent, which suggests the State likely knew about
Lopez’s mother’s intent in pressing charges against Lopez. These facts could support an inference that the State’s
delay was in bad faith, in which case this delay would weigh heavily against the State. See Cantu, 253 S.W.3d at 280-
81.

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it was “clear that the prosecutor had no personal knowledge of the . . . issue”). Second, the State’s

argument attempts to improperly shift the burden to Lopez to explain the State’s reason for the

delay; if the State is now suggesting that it had no reason for the delay, then this factor would

weigh more heavily against the State. See Voda, 545 S.W.3d at 742 (“The burden of justifying the

delay is on the State.”). Third, even without what the State is now suggesting was a

misrepresentation to the trial court about the State’s reason for delay, it was undisputed that the

State did not pursue a felony charge after Lopez had been incarcerated nearly three months, the

State filed a misdemeanor charge of a lesser-included-offense based on the same incident, and it

continued to keep Lopez incarcerated. The trial court was entitled to make reasonable inferences

from the State’s conduct. Thus, the reason for the first delay of 112 days weighs against the State.

See Hooper, 520 S.W.3d at 924.

       The second delay we must consider is the future delay necessitated by the unresolved

question as to Lopez’s competency to stand trial. “Courts have recognized several other situations

which fall within the ‘valid reason’ category, such as incompetency of the defendant.” LAFAVE,

supra, § 18.2(c), at 136 (citing United States v. Geelan, 520 F.2d 585 (9th Cir. 1975); U. S. ex rel.

Little v. Twomey, 477 F.2d 767 (7th Cir. 1973)); see Hull v. State, 699 S.W.2d 220, 222 (Tex.

Crim. App. 1985) (“[T]he eight month delay due to appellant’s incompetency to stand trial does

not infringe on his right to speedy trial.”) (citing Grayless v. State, 567 S.W.2d 216 (Tex. Crim.

App. [Panel Op.] 1978)). However, holding a defendant longer than reasonably necessary, as

determined by the “gravity of the offense,” presents different circumstances. Little, 477 F.2d at

770 (citing Jackson v. Indiana, 406 U.S. 715, 738 (1972)). Moreover, the State has a duty to

promptly try a defendant and “may not justify a delay merely by citing the defendant’s

incompetence.” Geelan, 520 F.2d at 588.



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        On August 8, 2017, the parties informed the trial court that the issue of Lopez’s competence

had been raised and discussed at the pretrial hearing before the visiting judge. The trial court was

informed the visiting judge had ordered Lopez to be evaluated, but Lopez was not evaluated. The

trial court could have reasonably inferred from the parties’ representations that the visiting judge

had a serious question as to Lopez’s competence to stand trial. However, the record does not reflect

why the competency evaluation did not occur. See TEX. CODE CRIM. PROC. ANN. art. 46B.021

(providing the process for ordering a competency evaluation). We therefore cannot say the record

supports an inference that the State was necessarily responsible for the inevitable future delay. See

Voda, 545 S.W.3d at 742; Dragoo, 96 S.W.3d at 314. Overall, we conclude the second factor, the

reasons for the delays, weighs slightly against the State.

C. Assertion of the Right

        We next consider the extent that Lopez asserted his right to a speedy trial. Barker, 407 U.S.

at 530; Hopper, 520 S.W.3d at 924; Wisser, 350 S.W.3d at 165. Lopez had the burden as to this

factor. Cantu, 253 S.W.3d at 280. Generally, the assertion-of-the-right factor concerns whether a

defendant asserted his right to a speedy trial in the trial court as opposed to the first time on appeal.

See Dragoo, 96 S.W.3d at 314; Phillips, 650 S.W.2d at 400-01 (citing Barker, 407 U.S. at 531-

532). “Of course, the defendant has no duty to bring himself to trial; that is the State’s duty.”

Zamorano, 84 S.W.3d at 651. “This does not mean that the defendant has no responsibility to

assert his right to a speedy trial.” Id. “[T]he defendant’s assertion of his speedy trial right 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.” Cantu, 253 S.W.3d at 283. “If

a defendant fails to first seek a speedy trial before seeking dismissal of the charges, he should
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provide cogent reasons for this failure. Repeated requests for a speedy trial weigh heavily in favor

of the defendant, while the failure to make such requests supports an inference that the defendant

does not really want a trial, he wants only a dismissal.” Id.

        “This is not to say, however, that asking only for dismissal will result in a ‘waiver,’ while

seeking a speedy trial and, in the alternative, a dismissal, would preserve the claim.” Phillips, 650

S.W.2d at 401. “In some cases, defense counsel may legitimately feel that a long delay has caused

a client so much prejudice that dismissal is warranted, even if the State is belatedly ready to move

promptly.” Id. “Each case must turn on its own facts, and the particular relief a defendant seeks is

but one fact to consider.” Id. We also consider whether there is anything “to suggest that appellant

deliberately failed to move for a speedy trial because of tactical reasons.” See id. (citing Barker,

407 U.S. at 534-36); accord Cantu, 253 S.W.3d at 283.

        The State argues Lopez “did not assert his right to a speedy trial; instead, he asked for the

case to be dismissed.” Because dismissal is the only possible remedy for a violation of the right to

a speedy trial, the assertion of the right to a speedy trial and a request for a dismissal are not

mutually exclusive. See Dragoo, 96 S.W.3d at 313. The record establishes Lopez asserted his right

to a speedy trial in the trial court on August 8, 2017, first by orally asserting his right and then by

filing a written Motion for Speedy Trial. Lopez’s assertion of his speedy trial right in the trial court

“is entitled to strong evidentiary weight in determining whether the defendant is being deprived of

the right.” See Zamorano, 84 S.W.3d at 651.

        Lopez first asserted his right to a speedy trial by requesting a dismissal on the date of trial.

Although such an assertion of his speedy trial right ordinarily weakens a speedy trial claim, the

record supports an implied finding of historical fact that trial counsel legitimately felt the delay

had caused so much prejudice that dismissal is warranted, even though the State announced ready

to proceed to trial. See Phillips, 650 S.W.2d at 401. Lopez was incarcerated on or about April 17,
                                                 - 19 -
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2017; he was charged with misdemeanor assault on July 11, 2017, and Lopez remained in jail; at

the pretrial hearing, the issue of Lopez’s competency was raised before a visiting judge, but no

competency evaluation was conducted; the trial date was set for August 18, 2017; and Lopez first

raised his right to a speedy trial on August 18, 2017. The record supports an implied finding of

historical fact that Lopez did not deliberately fail to request a speedy trial for tactical reasons.

        The State argues a dismissal for denial of a right to a speedy trial is premature when the

defendant fails to exhaust less drastic remedies, such as a pretrial writ of habeas corpus or a motion

to reduce his bond under article 17.151. See TEX. CODE CRIM. PROC. ANN. art. 17.151. We agree

that we must consider whether a defendant who is granted bail ever attempts to secure his release

on bail. Grayless, 567 S.W.2d at 222. The record in this case shows Lopez was initially unable to

make bail while the case was filed as a felony case. And after the State filed the misdemeanor case,

at the pretrial hearing before the visiting judge, Lopez pursued less drastic relief of being released

from jail on a personal recognizance bond and having his competency evaluated before the trial

date. The trial court denied the request for release, but then set the trial for only twelve days later.

Under these circumstances, we cannot say Lopez’s decision not to pursue habeas relief for a

violation of article 17.151 significantly undermines his assertion of his right to a speedy trial.

Considering Lopez’s assertion of his right to a speedy trial in the trial court, we conclude this factor

weighs slightly against the State.

D. Prejudice

        We next consider prejudice. Barker, 407 U.S. at 530; Hopper, 520 S.W.3d at 924; Wisser,

350 S.W.3d at 165. We assess this factor “in light of the interests the right to a speedy trial was

designed to protect: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and

concern of the accused, and (3) limiting the possibility that the defense will be impaired.” Hopper,

520 S.W.3d at 924. “Affirmative proof of particularized prejudice is not essential to every speedy
                                                 - 20 -
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trial claim because excessive delay presumptively compromises the reliability of a trial in ways

that neither party can prove or, for that matter, identify . . . and its importance increases with the

length of delay.” Id. (internal quotation marks omitted). “Extensive pretrial incarceration as a result

of the pending charges, of course, clearly shows prejudice.” GEORGE E. DIX & JOHN M.

SCHMOLESKY, TEXAS PRACTICE SERIES: CRIMINAL PRACTICE AND PROCEDURE § 28.18, at 685 (3d.

ed. 2011).

       Lopez was incarcerated for a total of 112 days before trial on a misdemeanor charge for

which the maximum sentence included jail time of up to 365 days. The trial court considered the

total time Lopez spent in jail as it relates to the maximum sentence he could have received for the

offense. As the State acknowledges, any time spent in county jail is unpleasant, to say the least.

See Barker, 407 U.S. at 532-33 (“The time spent in jail awaiting trial has a detrimental impact on

the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most

jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead

time.”). Lopez also testified he suffered from mental health issues; specifically, that he was with

diagnosed anxiety, depression, and bipolar disorder. Edwards v. State, 867 S.W.2d 90, 96 (Tex.

App.—Corpus Christi 1993, no pet.) (considering the state of the defendant’s mental health). The

State and Lopez’s trial counsel also raised concerns about Lopez’s competence to stand trial,

suggesting Lopez lacked a rational understanding of the proceedings or the present ability to

communicate with his counsel. See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a). Thus, the record

supports an implied finding of historical fact that Lopez’s pretrial incarceration was particularly

oppressive considering the nature and seriousness of the offense. See Hopper, 520 S.W.3d at 924.

But because there is no evidence of the other prejudice components, particularly the most serious

component of impairment of the defense, we conclude this factor weighs only slightly against the

State. See Barker, 407 U.S. at 532.
                                                 - 21 -
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E. Balancing the Factors

       We agree with the State’s characterization of this appeal, “This is a hard case.” The facts

of this case are uncommon for speedy trial cases, and most of the Barker factors weigh only slightly

against the State. As we have explained, the State took nearly three months to determine, from the

very simple facts of this case, whether it would be more appropriate to charge Lopez with felony

assault or misdemeanor assault. During those three months, Lopez—who suffers from anxiety,

depression, and bipolar disorder and who might ultimately be incompetent to stand trial—

languished in the county jail, unable to make bail, without being tried. After the State determined

it would be “more appropriate” to charge Lopez with misdemeanor assault, the State sought to

keep Lopez in the county jail. A visiting judge then denied Lopez’s request to be released from

jail. Although the visiting judge ordered a competency evaluation, Lopez was never evaluated

before trial. As a result, Lopez was in jail for a total of 112 days on a misdemeanor charge for

which the maximum punishment is confinement for 365 days. On August 8, 2017, proceeding to

trial was not an option, despite the State’s ready announcement. But for Lopez’s Motion for Speedy

Trial, the trial court’s only option was to further delay this case for competency proceedings.

Having engaged in the “difficult and sensitive” process of balancing the Barker factors, we

conclude the factors sufficiently weigh against the State and in favor of upholding the trial court’s

implied determination that the delay violated Lopez’s right to a speedy trial. See Zamorano, 84

S.W.3d at 648 (citing Barker, 407 U.S. at 533).

                                           CONCLUSION

       The record supports the trial court’s implied determination that the delay in this case

violated—or that continuing the proceedings would violate—Lopez’s constitutional right to a

speedy trial. We cannot construe chapter 46B of the Texas Code of Criminal Procedure, a state

statute mandating a competency evaluation under some circumstances, as requiring Lopez’s
                                                - 22 -
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continued prosecution in violation of his constitutional rights. We therefore hold the trial court did

not err “by failing to order a competency evaluation and, instead, dismissing the information

against [Lopez] less than four months after he was arrested.” Accordingly, the trial court’s order

is affirmed.

                                                   Luz Elena D. Chapa, Justice

PUBLISH




                                                - 23 -
