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

         ______________________________

               No. 06-08-00071-CR
         ______________________________


         JUSTIN ALLEN DOKTER, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 124th Judicial District Court
                 Gregg County, Texas
               Trial Court No. 30751-B




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

        This is an appeal of the conviction by a jury of Justin Allen Dokter for the aggravated assault

of Timothy Driscoll, which occurred during a fight in a bar. Dokter claims that he was not afforded

his right to a speedy trial.

I.      Description of Brawl

        On May 16, 2003, a dispute developed at a bar between Dokter and Driscoll; the incident

appears to have arisen primarily over a question of which person had the right to use the pool table

next. After the initial verbal confrontation, Charles Dennis Waldon, the bouncer, ordered both

Driscoll and Dokter to leave. Dokter exited the bar briefly as he had been ordered, but Driscoll

remained, playing pool. Dokter then returned and the dispute resumed, escalating to violence when

Dokter struck Driscoll, knocking him to the floor. Tim Johnson1 and Jessica Goodwin, the

bartender, testified that they believed Driscoll hit his head on the pool table as he fell to the floor.

After Driscoll fell, his friend, Matthew Wheeler, joined the fight with Dokter. While Dokter was

fighting Wheeler,2 Patrick Puckett, who was Dokter's friend, entered the fray by hitting Driscoll in




        1
        Johnson was employed at the same hospital with Driscoll, but did not know him well.
Nevertheless, after the initial verbal confrontation, Johnson had told Driscoll that "we were going
to kind of get your back if something broke out."
        2
          Sheri McCarty, Dokter's girlfriend, testified that the incident became a brawl and estimated
that at least three individuals attacked Dokter.

                                                   2
the back of the head with a pool cue.3 Driscoll may have been struck again while he was lying on

the floor.4

         Driscoll suffered severe, near-fatal brain injuries sustained during the melee, but received

almost immediate medical attention from patrons of the bar.5 According to Dr. Tom Chow, one of

the doctors who treated Driscoll, it is impossible to isolate which particular event caused Driscoll's

brain trauma. Chow further testified it was unlikely that Driscoll's brain trauma was precipitated

solely by Dokter's punch or by a blow to Driscoll's head when he struck the pool table on the way

to the floor, but that a fall "down to the ground could have been a significant contribution." After

some waffling concerning whether a blow from a pool cue could have been sufficient to generate the

trauma that was suffered, Chow testified that the "most logical and reasonable conclusion" would



        3
        McCarty testified she did not see Puckett hit anyone, but admitted to telling Puckett that he
needed to back Dokter up.
        4
        Johnson testified that after Puckett had hit Driscoll with the pool cue, both Dokter and
Puckett punched Driscoll while he was lying on the floor. John Adami testified that Dokter punched
Driscoll while Driscoll was on the floor. According to Adami, he punched Puckett after Puckett
struck Driscoll with the pool cue. Adami testified he joined the fight because of the way Puckett hit
Driscoll with the pool cue. Wheeler testified that after he punched Dokter, Dokter jumped on top
of Wheeler and started punching Wheeler.
        5
        After the fight had subsided, Driscoll had difficulty breathing and was bleeding in the brain.
Wheeler, who was a nurse, immediately began performing CPR on Driscoll with the assistance of
another bar patron who was an EMT. Before the assault, Driscoll was employed as a nurse in the
intensive care unit. As part of his employment, Driscoll supervised and trained other nurses.
Driscoll suffered permanent vision loss and still suffers from a number of cognitive problems.
Although Driscoll is currently employed as a nurse, he was unable to work for several years, is
currently working in a different department, and does not supervise and train other nurses.

                                                  3
be that all of the events, taken together, caused the brain trauma and that any head injuries which

Driscoll received after the initial brain trauma occurred would have aggravated the trauma and its

effects.

           Although Dokter was indicted for aggravated assault and aggravated assault with a deadly

weapon on July 23, 2003, the trial of this case did not begin until almost five years later. The jury

was instructed on the law of parties and the State relied upon the law of parties in its closing

argument. Dokter's primary argument in defense centered upon the theory that the first punch

(applied by Dokter) did not cause Driscoll's brain trauma and that Dokter neither encouraged,

directed, nor aided Puckett in the delivery of the other injuries which Driscoll suffered. The jury

found Dokter guilty of aggravated assault and assessed his punishment at five years' imprisonment.

Dokter's sole issue on appeal is that his right to a speedy trial was violated.

II.        Speedy Trial Guarantees

           An accused's right to a speedy trial is guaranteed by both the Sixth Amendment to the United

States Constitution and the Texas Constitution.6 Zamorano v. State, 84 S.W.3d 643, 647 nn.5 & 6

(Tex. Crim. App. 2002); see Barker v. Wingo, 407 U.S. 514, 530 (1972). When evaluating a claim

of a speedy trial violation, the reviewing court must use a balancing test, weighing the conduct of

the State against that of the defendant. Barker, 407 U.S. at 530; Shaw v. State, 117 S.W.3d 883, 888



           6
        While the Texas Constitution provides an independent speedy trial guarantee, the Texas
Court of Criminal Appeals has traditionally analyzed speedy trial claims using the same analytical
framework required under the United States Constitution. Zamorano, 84 S.W.3d at 648.

                                                    4
(Tex. Crim. App. 2003). The court must consider, under the totality of the circumstances, the

following four factors: (1) the length of the delay, (2) the State's reason for delay, (3) whether the

delay was due to lack of diligence on the part of the State, and (4) whether the delay caused harm

to the accused. Shaw, 117 S.W.3d at 888–89; see Barker, 407 U.S. at 530. These four so-called

"Barker factors" are assigned varying weights by the court according to the individual facts of the

case, placed on the appropriate sides of the proverbial scales of justice, and weighed with and against

each other to determine if, on balance, the accused's right to a speedy trial has been violated. See,

e.g., Holmes v. State, 938 S.W.2d 488, 489–91 (Tex. App.—Texarkana 1996, no pet.). The four

factors must be considered together; no single factor is necessary to establish a violation or sufficient

by itself to establish a violation of the right to a speedy trial. Barker, 407 U.S. at 533; Dragoo v.

State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003).

        Generally, a speedy trial claim will not be considered until a sufficient amount of time has

elapsed so as to present a prima facie case that the State's continued delay is unreasonable. Shaw,

117 S.W.3d at 889. "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

period of delay "is measured from the time the defendant is arrested or formally accused." Shaw,

117 S.W.3d at 889. Once the defendant makes a prima facie showing of unreasonable delay,7 the

        7
        The term "presumptively prejudicial," as used in this context of the Barker analysis, does
not involve a statistical probability of prejudice to the defendant; "it simply marks the point at which
courts deem the delay unreasonable enough to trigger the enquiry." Doggett v. United States, 505
U.S. 647, 652 n.1 (1992). This "presumptively prejudicial" threshold is a different context from the

                                                   5
reviewing court must consider the length of the delay as one factor among the remaining factors in

evaluating the accused's claim. Id. at 889. Almost five years passed between Dokter's arrest and the

trial. This lapse of time is sufficient to establish a prima facie showing of an unreasonable delay.

See State v. Owens, 778 S.W.2d 135, 136–38 (Tex. App.—Houston [1st Dist.] 1989, pet. ref'd)

(seven-month delay established prima facie showing). We now turn to our analysis of the Barker

factors, mindful that "No one factor possesses 'talismanic qualities.'" Zamorano, 84 S.W.3d at 648

(quoting Barker, 407 U.S. at 533).

       In conducting our review, we defer to the trial court's evaluation of factual issues. Kelly v.

State, 163 S.W.3d 722, 726–27 (Tex. Crim. App. 2005). Although each individual factor necessarily

involves both fact determinations and legal conclusions, the balancing of the factors is purely a legal

question which should be reviewed de novo. Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim.

App. 1997). We overrule the State's argument that error was not preserved for our review.8


presumptive prejudice discussion below. See State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim.
App. 1999) (explaining the different contexts).
       8
        We note the State argues Dokter failed to secure a ruling on his motion for new trial. At the
hearing on the motion to dismiss, the trial court refused to rule. The trial court stated:

       [I]t's premature to [rule] until we see more about whether these witnesses are out
       there. And really we need to find out what their memories are like. I'm concerned
       about a five-year gap, asking someone to remember what took place. I'm not
       prepared to grant a Motion to Dismiss on Speedy Trial at this particular moment.

Dokter requested a ruling at least three times during the trial. On the first occasion, the trial court
stated it would carry the motion with the case. On the second occasion, the trial court ruled the
motion was denied, but would be carried for a while. After the State rested, Dokter asked the trial

                                                  6
        A.      Length of Delay Weighs in Favor of Violation

        The first factor to be considered is the length of the delay. Barker, 407 U.S. at 530;

Zamorano, 84 S.W.3d at 648–49. We measure the delay from the defendant's arrest or formal

accusation.    Shaw, 117 S.W.3d at 889; Blaylock v. State, 259 S.W.3d 202, 208 (Tex.

App.—Texarkana 2008, pet. ref'd). Dokter testified that he was arrested in May 2003 and his trial

did not begin until March 10, 2008, a delay of fifty-eight months. A fifty-eight-month delay—almost

five years—is unacceptable. The length of delay weighs heavily in favor of finding that there was

a violation of the right to a speedy trial.

        B.      State's Proffered Reason Weighs in Favor of Finding Violation

        Second, we must consider the reason or reasons the State provided in an attempt to justify

the delay. Barker, 407 U.S. at 531; Zamorano, 84 S.W.3d at 648–50. Sometimes, the government's

justifications under this second prong should be given greater or lesser weight, depending on the



court to rule on the motion to dismiss, which had been "held under advisement up until this point."
The trial court ruled, "It's denied," but stated, "Reserve the right to review it as the trial goes along."
The State argues Dokter failed to obtain a ruling. The State has not provided this Court with any
authority to support its argument other than Rule 33.1 of the Texas Rules of Appellate Procedure.
To preserve error for appeal, a defendant must (1) object, (2) state the grounds with sufficient
specificity, and (3) obtain an adverse ruling either expressly or implicitly. TEX . R. APP . P. 33.1;
Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). This case is distinguishable from cases
where the trial court failed to rule, but stated it reserved the right to rule at a later point. See, e.g.,
Stone v. State, Nos. 12-06-00418-CR & 12-06-00419-CR, 2008 Tex. App. LEXIS 6738 (Tex.
App.—Tyler Sept. 10, 2008, no pets.) (mem. op., not designated for publication). In this case, the
trial court affirmatively ruled on the motion, but merely reserved the right to review sua sponte its
ruling. Because the trial court did not revisit the issue, its original definitive ruling still stands. Error
was preserved for our review.

                                                     7
relative merit of the reasons which are given. Barker, 407 U.S. at 531. "A deliberate attempt to

delay the trial in order to hamper the defense should be weighted heavily against the government."

Id. A "neutral" justification (such as an overcrowded docket or mere negligence) "should be

weighted less heavily but nevertheless should be considered since the ultimate responsibility for such

circumstances must rest with the government rather than with the defendant." Id. "Finally, a valid

reason, such as a missing witness, would serve to justify appropriate delay." Id.

       The State provided several reasons for the delay. An affidavit signed by the attorney who

represented the State for the majority of the period of delay was introduced into evidence by

agreement of the parties.9 The affidavit blamed the delay on the victim's hospitalization, difficulty

locating witnesses, plea negotiations, and a busy docket. This affidavit asserted that the victim was

undergoing treatment for approximately eighteen months and, after the victim was released from the

hospital, the State experienced difficulty in locating witnesses, particularly the bouncer at the bar.

After the State had located most of the witnesses it sought, unsuccessful plea negotiations were

conducted. The affidavit also asserts that continuances were granted to both the State and the

defense and that continuances were granted to Dokter when his attorney relocated his offices to

Dallas from Longview.10


       9
        The attorney had recently been elected district attorney in another county, and the parties
agreed to the introduction of the affidavit in lieu of testimony.
       10
        On cross-examination at the hearing on the motion to dismiss, Dokter admitted his attorney
had moved his office to Dallas at some point. Dokter did not testify when this occurred and testified
he was not aware of any impact the move had on his case. The affidavit filed by the former district

                                                  8
       Nevertheless, even with these explanations, the State's reasons failed to account for at least

a year's delay in the intervening period. The former assistant district attorney's affidavit stated that

after the victim's unrelated arrest for assault–family violence in 2006, he had "limited or no further

dealings with the case." We take judicial notice that the former prosecutor was elected district

attorney of another county and began serving in that capacity in January 2007; hence, he would not

have had connection with the case from that time forward. In addition, Dokter testified that the

defense had announced ready at the last docket call at which the case was called, an event which

occurred two or three years before the eventual trial. The docket sheet contains no entries on this

case for a period of four and a half years. The docket sheet indicates a continuance was granted on

September 12, 2003 until October 20, 2003, but is silent until January 25, 2008, when a hearing was

held on Dokter's motion to dismiss for failure to provide a speedy trial. The record does not contain

any motions or other documents concerning this case filed by either party from November 2003 until

January 2008.11 Since the affidavit was the only evidence submitted by the State to justify the delay,

the State provided no reasons for the delay from sometime in 2006 (when the prosecutor originally

assigned to the case left the office to assume other duties) until 2008.




attorney likewise fails to specify when the office was moved.
       11
         The record contains a letter from Dokter's attorney to another court concerning another case
which references a hearing in this case set for January 20, 2006. There is an unsigned notation which
provides "Reset Felony Hold to 3/27/06."

                                                   9
        We note the State argued it had a busy docket. The State's "unreasonable delay" in a

run-of-the-mill12 criminal case cannot be justified merely by suggesting that the State has a backlog

of cases or a shortage of staff. Ex parte Martin, 33 S.W.3d 843, 846–47 (Tex. App.—Austin 2000),

pet. dism'd, improvidently granted, 46 S.W.3d 932 (Tex. Crim. App. 2001). "The government must

bear responsibility for failing to provide adequate resources to law-enforcement agencies." Id. at

847. Accordingly, we cannot conclude, even after giving almost total deference to the trial court's

implied findings of fact, that the State's proffered reasons for the delay justifies the nearly five-year

delay. The second Barker factor weighs slightly in favor of a finding of a speedy trial violation.

        C.      Failure to Assert Speedy Trial Right Weighs Against Finding Violation

        The third factor is concerned with the timeliness of a defendant's assertion of his right to a

speedy trial. See Barker, 407 U.S. at 529, 531–32; Zamorano, 84 S.W.3d at 648, 651–52. The

United States Supreme Court has explicitly rejected the demand-waiver rule which requires a

defendant to demand a speedy trial or the right is waived. Barker, 407 U.S. at 529–30. However,

the Court also noted that the failure to timely seek a speedy trial makes it difficult for a defendant

to prevail. Id. at 532.

        Dokter did not assert his right to a speedy trial until he filed his motion to dismiss on

January 18, 2008. Thus, Dokter did not assert his right to a speedy trial for almost fifty-five months.

The Texas Court of Criminal Appeals has noted a defendant's failure to make a timely demand for

        12
         The State presented no evidence that this case was complex or unusually difficult to
prosecute. Cf. Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992).

                                                   10
a speedy trial indicates strongly that he did not really want one and that he was not prejudiced by not

having one. Dragoo, 96 S.W.3d at 314. The longer the delay—the more likely it is that a defendant

who really wanted a speedy trial would take some action to obtain one. Id. A defendant's lack of

a timely demand for a speedy trial indicates the defendant did not really want a speedy trial, and the

inaction weighs more heavily against a violation the longer the delay becomes. Id. Further, the

Texas Court of Criminal Appeals has held moving for "a dismissal instead of a speedy trial weakens

[a speedy trial] claim because it shows a desire to have no trial instead of a speedy trial." Zamorano,

84 S.W.3d at 651 n.40.

       We note it is uncontested that the parties were in good-faith negotiations for a plea bargain.

The former prosecutor stated in his affidavit that plea negotiations were engaged in with the defense

counsel, but did not result in a final resolution. The record, though, is rather vague concerning the

plea negotiations and their breakdown. Dokter testified that his fellow defendant, Puckett, told

Dokter that Puckett's attorney told Puckett the charges would be dismissed. This double hearsay

statement not only has serious reliability concerns, but also fails to establish that an agreement had

been reached. Nor does the record establish the period of time such negotiations were pending. The

mere fact that plea negotiations were pending during some undefined peroid does not make a

significant difference. Almost all cases involve some plea negotiation; that is just a part of the

normal trial procedure. If the record contained evidence that a plea agreement had been reached and




                                                  11
relied upon by Dokter, such evidence might ameliorate Dokter's inaction to a certain extent.13 In the

absence of such evidence, the record fails to contain any excuse for Dokter's failure to timely assert

his right to a speedy trial. The third Barker factor weighs heavily against a finding of a speedy trial

violation.

       D.      Evidence of Prejudice Is Judicial Determination

       The last factor requires this Court to determine whether there is evidence of prejudice to the

accused attributable to the State's delay. Barker, 407 U.S. at 531–32; Zamorano, 84 S.W.3d at 648,

652–54. Once a defendant makes a prima facie showing of prejudice, the State has the burden to

establish the accused suffered no serious prejudice. Munoz, 991 S.W.2d at 826; State v. Jones, 168

S.W.3d 339, 349 (Tex. App.—Dallas 2005, pet. ref'd). "Prejudice . . . should be assessed in the light

of the interests of defendants which the speedy trial right was designed to protect." Barker, 407 U.S.



       13
           We have recently found a speedy trial violation in a case concerning Dokter's co-defendant,
Puckett, who was charged similarly with Dokter because of the same assault. Puckett v. State, cause
number 06-08-00085-CR. In Puckett, however, the defendant presented evidence of three witnesses
who could not be located and introduced evidence of what those witnesses' expected testimony
would be. Id. In contrast, the record here only establishes the existence of one missing witness and
fails to contain evidence of what was expected to have been elicited from that testimony. In Puckett,
there was evidence that a plea agreement had been reached, but not formalized; Puckett's defense
counsel took the stand and testified that the former assistant district attorney who was then in charge
of the case had announced in open court that the charges against Puckett would be reduced to a
misdemeanor, testimony which was borne out by the record of the court reporter. Id. The record in
Puckett also contained evidence that identified the period of years between the State's in-court
statement that "we have a deal" and the subsequent refusal by the successor prosecutor to honor that
agreement. Id. The evidence that a plea agreement had been reached in Puckett and relied upon by
Puckett and the quantity of proof as to the evidence which was expected to be provided by missing
witnesses were major distinctions between the two cases.

                                                  12
at 532. There are three such interests: "(i) to prevent oppressive pretrial incarceration; (ii) to

minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will

be impaired." Id. The last interest is the most important "because the inability of a defendant

adequately to prepare his case skews the fairness of the entire system." Id.

       Dokter testified that he was released from jail on bond approximately six weeks after his

arrest.14 Because Dokter was not in custody for most of the delay, the first protectable interest is of

minimal importance. Since there was no evidence presented that Dokter experienced anxiety or

concern regarding the looming prosecution, we give no consideration to the second subfactor

mentioned above. Therefore, only the last (and most important) interest is of concern in this case.

       E.      Record Contains Minimal Particularized Prejudice

       A defendant has the burden to make some showing of "prejudice," although a showing of

"actual prejudice" is not required. Munoz, 991 S.W.2d at 826. In Barker, the United States Supreme

Court found that there was insufficient evidence the accused suffered any prejudice as a result of

Kentucky's five-year delay in prosecuting him, even though he was incarcerated for ten months

during that delay. Barker, 407 U.S. at 534. The Court held the minimal prejudice of "living for over

four years under a cloud of suspicion and anxiety" and spending ten months in jail was insufficient.

Id. None of the witnesses were unavailable when the case finally came to trial and the trial transcript

indicated only two minor lapses in memory among the witnesses who testified. Id. Dokter claims

       14
        Dokter testified he was arrested for driving while intoxicated in another county while out
on bond, but had not served any additional time for this case.

                                                  13
that the record in this case contains sufficient evidence of particularized prejudice because he was

unable to locate several witnesses and the witnesses who did testify had significant memory

problems.

       At the hearing on the motion to dismiss, Dokter testified that there were several material

witnesses which could not be located. Dokter testified, "A lot of the people that were actually there

that night were not local, they were in town working." Dokter and his attorney made a number of

attempts to locate those witnesses. When asked on cross-examination to name the witnesses which

Dokter could not locate, Dokter testified he did not bring the list he had prepared with him and was

unable to provide any names. On redirect, Dokter was more particular, indicating that the defense

had been unable to contact Waldon, Adami, and David Melcher.15 Although the State had provided

telephone numbers for Adami and Melcher, the State had not provided addresses, and the defense

had not been able to contact either witness. Because two of the three witnesses Dokter identified as

missing actually testified at trial, the record only contains evidence of one witness, Melcher, who

was unavailable. However, Dokter failed to provide any evidence regarding what he expected

Melcher's testimony would have been. To establish particularized prejudice based on an unavailable

witness, a defendant must present proof both of the efforts made to locate the witness and that the

witness would have benefitted his defense. See Phipps v. State, 630 S.W.2d 942, 947 (Tex. Crim.

App. [Panel Op.] 1982); Mabra v. State, 997 S.W.2d 770, 780 (Tex. App.—Amarillo 1999, pet.



       15
            Waldon and Adami testified at trial.

                                                   14
ref'd); Clarke v. State, 928 S.W.2d 709, 716 (Tex. App.—Fort Worth 1996, pet. ref'd). Dokter failed

to establish particularized prejudice at the hearing on his motion to dismiss.

       Dokter argues the record of the trial demonstrates that most of the witnesses who did testify

suffered from lapses of memory and conflicting versions of the events. The record confirms that

Wheeler carried his police statement with him to the stand. A number of the witnesses, in trying to

recall specifics of the incident, made reference to the fact that the fight occurred five years ago. The

only witnesses not clearly associated with either the victim or Dokter were the bouncer and the

bartender. Both of these witnesses admitted to having trouble remembering. Goodwin, the

bartender, admitted there were parts of the event which she would not have recalled without referring

to the statement she gave to the police at a time closer to the incident. Waldon, the bouncer, testified

that he could not remember the precipitating cause of the original dispute between Driscoll and

Dokter. When asked if he remembered a rumor about Dokter having struck his girlfriend, Waldon

testified he did not remember.

       Dokter also argues that several of the witnesses testified differently from statements they had

given previously, at a time closer to the time of the bar fight. The record confirms that at least two

witnesses' testimony differed from their prior statements to the police. Adami testified at trial that

he had struck Puckett after he saw Puckett hit Driscoll with a pool cue and that Puckett tripped over

Driscoll and fell to the ground near Driscoll. On cross-examination, Adami admitted that the

statement he provided to the police made no mention of a pool cue and that he had previously told



                                                  15
police that Puckett fell on top of Driscoll, not beside him. Detective David Cheatum testified that

Adami's statement to the police made no reference to a pool cue. Whereas Waldon testified at trial

that Dokter did not hit Driscoll while Driscoll was on the floor, Waldon had previously claimed that

Dokter hit Driscoll while Driscoll was on the floor.

       Overall, however, the trial testimony does not demonstrate that most of the witnesses had

significant memory problems. Several of the witnesses denied having any memory problems.

Wheeler, despite carrying his statement to the stand with him, testified he remembered the events

clearly. Johnson and Thomas McGonijl also testified that they remembered the events clearly.

       While there is some evidence of prejudice in this case, the evidence is rather minimal.

Witnesses often testify differently than their police statements and the use of prior police statements

to refresh memories is not out of the ordinary. The evidence in this case merely creates a suspicion

of prejudice, a suspicion which was not developed sufficiently to establish a prima facie case of

particularized prejudice.

       F.      Role of Acquiescence in Delay

       Even if there is insufficient evidence of particularized prejudice, a sufficiently lengthy delay

may create a presumption of prejudice (also sometimes called presumptive prejudice). The United

States Supreme Court has recognized that a lengthy delay can be sufficient for prejudice to be

presumed. Doggett, 505 U.S. at 655. The Court noted:

       [T]hough time can tilt the case against either side . . . one cannot generally be sure
       which of them it has prejudiced more severely. Thus, we generally have to recognize


                                                  16
       that excessive delay presumptively compromises the reliability of a trial in ways that
       neither party can prove or, for that matter, identify. While such presumptive
       prejudice cannot alone carry a Sixth Amendment claim without regard to the other
       Barker criteria, . . . it is part of the mix of relevant facts, and its importance increases
       with the length of delay.

Id. at 655–56. The Texas Court of Criminal Appeals has noted "affirmative proof of particularized

prejudice is not essential to every speedy trial claim." Dragoo, 96 S.W.3d at 315; see Orand v. State,

254 S.W.3d 560, 570 (Tex. App.—Fort Worth 2008, pet. ref'd) (finding violation of right to speedy

trial based on presumptive prejudice when trial occurred fourteen years after offense). We note that

a five-year delay, under the appropriate circumstances, may be sufficient to create a presumption of

prejudice.16

       The primary difference between this case and those cases finding presumptive prejudice lies

in the fact that Dokter acquiesced in the delay. In Doggett, the trial court found that the accused was

unaware of the pending indictment for eight and a half years. Doggett, 505 U.S. at 653. The Court

emphasized that the delay was not extenuated by the defendant's acquiescence. Id. at 656.

Presumptive prejudice is "extenuated . . . by the defendant's acquiescence" in the delay. Dragoo, 96

S.W.3d at 315 (quoting Doggett, 505 U.S. at 658). In Shaw, the Texas Court of Criminal Appeals

held the "appellant's longtime acquiescence in the delay" extenuated any presumptive prejudice.



       16
           See Zamorano, 84 S.W.3d 647 (four-year delay where defendant repeatedly asserted speedy
trial after two and a half years); Guajardo v. State, 999 S.W.2d 566, 570 (Tex. App.—Houston [14th
Dist.] 1999) (five-year delay created presumption of prejudice, but state rebutted the presumption);
State v. Flores, 951 S.W.2d 134, 144 (Tex. App.—Corpus Christi 1997, no pet.) (four-year lapse
between offense and indictment presumptively prejudicial).

                                                   17
Shaw, 117 S.W.3d at 890. Dokter's acquiescence in the delay was longer than Shaw's acquiescence.

There is no dispute that Dokter knew of the pending charges and failed to file a request for a speedy

trial until approximately fifty-five months after his arrest on those charges. Any presumptive

prejudice created by the fifty-eight-month delay was extenuated by Dokter's acquiescence in the

delay for almost fifty-five months.17 As such, we are unable to conclude prejudice should be

presumed under the facts of this case. The last Barker factor weighs against a finding of a speedy

trial violation.

        G.         Weighing of Barker Factors Is Judicial Decision

        Now that we have assigned the relative weight to each relevant factor, giving deference to

the trial court's findings of fact, we must consider the four Barker factors in the aggregate, along with

any other relevant circumstances as may be known by the reviewing court. Barker, 407 U.S. at 533;

Zamorano, 84 S.W.3d at 648, 654–55. We must balance the respective strengths of those factors

against the relative weights of the remaining factors "in light of 'the conduct of both the prosecution

and the defendant.'" Zamorano, 84 S.W.3d at 648; see also Barker, 407 U.S. at 530.

        As noted above, the almost five-year length of delay weighs heavily in favor of finding a

violation of the right to a speedy trial and the anemic reasons for the delay weigh slightly in favor

        17
          Other Texas courts have held similarly when faced with both a lengthy delay and a lengthy
acquiescence in the delay. See Dragoo, 96 S.W.3d at 316 (three-and-a-half-year delay not
presumptive prejudice because of defendant's acquiescence); Pinnock v. State, 105 S.W.3d 130, 137
(Tex. App.—Corpus Christi 2003, no pet.) (no presumptive prejudice due to fifty-month delay when
defendant did not assert right); Harlan v. State, 975 S.W.2d 387, 391 (Tex. App.—Tyler 1998, pet.
ref'd) (four-year delay not presumptive when defendant failed to timely assert right).

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of finding a violation. However, these factors are outweighed by the remaining two factors. Dokter

failed to make a timely assertion of his right to a speedy trial. Because the record contains only

extremely marginal evidence of particularized prejudice and Dokter's acquiescence in the delay

extenuated any presumptive prejudice, the last and most important factor weighs against a finding

of a speedy trial violation. The trial court did not err in finding Dokter's right to a speedy trial was

violated based on the evidence presented in this case.

III.    Conclusion

        Although there is no good excuse for the almost five-year delay in this run-of-the-mill

criminal case, the record here does not demonstrate a violation of Dokter's right to a speedy trial.

While the length of the delay and the State's explanations favor a finding that Dokter's right to a

speedy trial was violated, Dokter's failure to assert that right and the absence of evidence that the

delay occasioned prejudice to his ability to defend cause the record to fail to establish such a speedy

trial right violation.

        We affirm.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:          January 27, 2009
Date Decided:            February 13, 2009

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