AFFIRM; and Opinion Filed July 23, 2015.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-00516-CR

                    JASMINE EAQUENDALYN-DYS REED, Appellant
                                      V.
                          THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 5
                                   Collin County, Texas
                           Trial Court Cause No. 005-82888-07

                               MEMORANDUM OPINION
                             Before Justices Lang, Brown, and Whitehill
                                     Opinion by Justice Brown
       Appellant appeals an order adjudicating her guilt for misdemeanor assault. In a single

issue, appellant asserts the State violated her Sixth Amendment right to a speedy trial. For the

following reasons, we affirm appellant’s conviction.

       In 2007, Appellant pleaded guilty to misdemeanor assault, and was placed on deferred

adjudication probation for one year. The State later filed a motion to adjudicate appellant’s guilt

alleging she had violated several conditions of her probation. Appellant pleaded true to the

State’s allegations, but the trial court nevertheless continued her on probation for a period of one

year. Shortly thereafter, based on appellant’s agreement, the trial court again extended the

period of her supervision.

       In early 2010, the State filed its second motion to proceed with an adjudication of guilt

alleging appellant had again violated several conditions of her probation, including testing
positive for marijuana, failing to report to her probation officer, and failing to pay various costs

and fees. At the time it filed its motion, ten months still remained on appellant’s probation. A

warrant issued for appellant’s arrest on February 3, 2010, but it was not executed until November

25, 2013.

       Appellant filed a motion to dismiss asserting the State had violated her right to a “speedy

revocation hearing” as guaranteed by the Sixth Amendment to the United States Constitution. At

the hearing on appellant’s motion to dismiss, the State did not present evidence of the reasons for

its delay in prosecuting the motion. To meet her burden to show prejudice, appellant relied on

the testimony of her probation officer, Billy White.

       White was the probation officer that reported the violations the State alleged in its second

motion to adjudicate. White explained that the probation department keeps records of a person’s

probation, chronologically noting everything. He admitted that such records can contain errors

and that there have “probably” been times he has been able fix errors based on his memory of

what actually occurred. He acknowledged he would not be able to do so after three years and

eight months.     White nevertheless explained the reason the probation department keeps

chronological records and he writes everything down is because he sometimes cannot remember

what “happened yesterday.”

       Appellant also elicited testimony from White that her first probation officer when she

was initially placed on probation for the offense had passed away after the State filed its second

motion to adjudicate. White also testified that, to his knowledge, the State would not have

preserved the specimens collected for appellant’s drug tests for more than one year.

       After hearing the evidence, the trial court denied appellant’s motion to dismiss. The trial

court subsequently found appellant had violated five of the eleven conditions of her probation,

adjudicated appellant guilty, and sentenced her to forty-five days in jail.

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       On appeal, relying on the Sixth Amendment to the United States Constitution, appellant

asserts she was denied her right to a speedy revocation hearing. According to the State, the Sixth

Amendment protects only the right to a speedy “trial,” and does not apply to probation

revocation proceedings. See, e.g., United States v. House, 501 F.3d 928, 930 (8th Cir. 2007);

United States v. Tippens, 39 F.3d 88, 89 (5th Cir. 1994). Although the United States Supreme

Court has yet to address the issue, the Texas Court of Criminal Appeals has definitively held the

Sixth Amendment is applicable to revocation hearings. Carney v. State, 573 S.W.2d 24, 26 (Tex.

Crim. App. 1978) (en banc); Fariss v. Tipps, 463 S.W.2d 176, 178 (Tex. 1971) (original

proceeding). We have no authority to disregard or overrule this binding precedent.

        In determining whether a defendants’ right to a speedy revocation hearing was violated

we consider the four factors as outlined in Barker v. Wingo: (1) the length of the delay, (2) the

State’s reasons for the delay, (3) the defendant’s assertion of the right, and (4) the prejudice to

the defendant resulting from the delay. See Barker v. Wingo, 407 U.S. 514, 531 (1972); Cantu v.

State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). No single factor is necessary or sufficient

to show a violation of the right to a speedy trial, although the length of the delay is the

“triggering mechanism” for analysis of the other factors. See Barker, 407 U.S. at 530, 533.

       In the context of a probation violation, the length of the delay is measured from the date

the State files its motion to revoke. Martinez v. State, 531 S.W.2d 343, 345 (Tex. Crim. App.

1976). If the delay is “presumptively prejudicial,” the State then bears the burden of justifying

the delay and the defendant has the burden of proving the assertion of the right and prejudice.

Doggett v. United States, 505 U.S. 647, 657–58 (1992); Cantu, 253 S.W.3d at 280. In evaluating

a speedy trial claim, we balance the State’s conduct against the defendant’s and consider the four

factors together, along with any other relevant circumstances. Barker, 407 U.S. at 530, 533.




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       In reviewing the trial court’s ruling on appellant’s speedy-trial claims, we apply a

bifurcated standard of review, an abuse of discretion for the factual components and a de novo

standard for the legal components. Cantu, 253 S.W.3d at 282. In applying this standard, we

defer to the trial court’s resolution of disputed facts that are supported by the evidence. Id. The

balancing test as a whole is then a purely legal question, which we review de novo. Id.

       Here, appellant’s revocation hearing was conducted over four years after the State filed

its motion to proceed with an adjudication of guilt. This is sufficient to trigger analysis of the

other Barker factors. See State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999).

       We therefore turn to the reasons offered to justify the delay. When assigning weight to

the State’s reasons, different reasons deserve different weights.      Barker, 407 U.S. at 531.

Deliberate attempts to delay a proceeding to hamper the defense weigh heavily against the State.

Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002). On the other hand, more

neutral reasons, such as negligence, weigh less heavily against the State. Id. Here, the State did

not present evidence showing the reasons for the delay. Appellant contends the delay was

caused by “prosecutorial negligence.” The factor weighs against the State, but not as heavily as

deliberate delay.

       The third factor is appellant’s assertion of her right to a speedy revocation hearing. See

Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). This factor is entitled to strong

evidentiary weight. Cantu, 253 S.W.3d at 283. 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. Id. If a defendant fails to first seek a speedy trial before seeking dismissal of the

charges, she should provide cogent reasons for this failure. Id.

       Appellant did not assert her right to a speedy revocation hearing for over four years after

the State filed its motion to adjudicate. To explain this failure, appellant claims she was not

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aware the State had filed the motion to adjudicate until she was arrested three years and eight

months later. Although appellant presented evidence of the State’s delay in arresting her, she did

not present any evidence showing she did not otherwise have notice the State had filed the

motion to adjudicate. Indeed, at the hearing, appellant did not claim she was unaware of the

motion, but instead argued that she did not know if the State had “abandoned its intention to

adjudicate.”

       Moreover, at the time the State filed the motion, appellant was on probation for these

charges and was aware the charges would only be dismissed if she complied with the conditions

of her probation. These circumstances are not akin to a person charged with a new offense that

might have no reason to know criminal charges have been filed. At a minimum, appellant

certainly should have known a motion to revoke had been filed and, had she reported to her

probation officer, she would have known. Cf. Burgett v. State, 865 S.W.2d 594, 598 (Tex.

App.—Fort Worth 1993, pet. ref’d) (appellant’s failure to show he reported to his probation

officer suggested he knew of charges). Under these circumstances, appellant’s failure to provide

“cogent reasons” for her failure to request a speedy revocation hearing for over four years

strongly indicates she did not want a speedy hearing.        This factor weighs heavily against

appellant.

       Finally, we consider whether appellant showed prejudice resulting from the delay. We

assess this factor in light of the interests the speedy trial right was designed to protect: (1) to

prevent oppressive pretrial incarceration; (2) to minimize the accused’s anxiety and concern; and

(3) to limit the possibility that the accused’s defense will be impaired. Barker, 407 U.S. at 532.

The most serious form of prejudice is the last because “the inability of a defendant adequately to

prepare his case skews the fairness of the entire system.” Id. Affirmative proof of particularized

prejudice is not essential to every speedy trial claim, because “excessive delay presumptively

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compromises the reliability of a trial in ways that neither party can prove or, for that matter,

identify.” Doggett, 505 U.S. at 655. In such instances, the defendant is absolved from the

requirement to demonstrate prejudice. Gonzales v. State, 435 S.W.3d 801, 812 (Tex. Crim. App.

2014)

          Here, appellant concedes she presented no evidence she suffered either pretrial

incarceration or any anxiety or concern as a result of the delay. She however asserts her defense

was impaired by the delay. First, she relies on White’s admission that the delay would make it

impossible for him identify possible errors that might be in appellant’s probation file. But he did

not claim he would have been able to do so even if the motion had been timely prosecuted.

Additionally, appellant did not present any evidence that White had a faulty memory with

respect to any particular facts or circumstances relevant to her case. We conclude appellant

failed to show any generalized lack of memory White may have had was the result of the

complained-of delay or impaired her ability to defend herself.

          Appellant also asserts her defense was impaired because the State had destroyed the

specimen that it relied on to allege she had failed a drug test. This alleged prejudice relates to

only one of eleven probation violations. The State later specifically abandoned this allegation,

and the trial court did not rely upon it in adjudicating appellant’s guilt. Appellant nevertheless

claims that we cannot consider these subsequent events “retroactively.” We review a trial

court’s ruling on a motion to dismiss based on the arguments, information, and evidence

available to the trial court at the time it ruled. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim.

App. 2003).           But we cannot agree it follows that we must disregard subsequent events which

definitively negate appellant’s showing of prejudice. 1 In any event, at the time the trial court

ruled on appellant’s motion to dismiss, it was certainly aware the State was only required to

   1
       Of course, this issue would not arise in a traditional Barker v. Wingo case because the analogous subsequent event would be an acquittal.



                                                                      –6–
prove one probation violation to support its motion. Jones v. State, 571 S.W.2d 191, 193-94

(Tex. Crim. App. 1978) (proof of one ground for revocation will support revocation of

probation); Lee v. State, 952 S.W.2d 894, 900 (Tex. App.—Dallas 1997, no pet.). 2

           Finally, appellant asserts her defense was impaired because her first probation officer had

passed away during the delay. Although this witness was not her probation officer at the time of

any of the alleged violations, she asserts the absence of the witness prevented her from

challenging whether that probation officer had given her “notice” of the conditions of her

probation. Appellant fails to explain how the testimony of a probation officer would show she

was, or was not, given notice of the conditions of her probation. Moreover, when the trial court

extended appellant’s probation the first time she judicially confessed that she was aware of and

understood the conditions of her probation.

           Finally, appellant suggests we should “presume” prejudice from the length of the delay

because it was so excessive that it compromised the reliability of the proceeding in ways she

could neither prove nor identify. See Doggett, 505 U.S. at 655; Dragoo, 96 S.W.3d at 315. In

this case, given the nature of the allegations – that appellant committed probation violations – we

cannot agree it would have been particularly difficult for appellant to identify some manner in

which she was prejudiced by the delay. We further conclude any “presumption of prejudice” is

extenuated by appellant’s acquiescence in the delay. Dragoo, 96 S.W.3d at 315. Reviewing the

record, we conclude any showing of prejudice as a result of the delay was marginal and was

extenuated by appellant’s own conduct. We conclude this factor weighs against appellant.

           Balancing the Barker factors, including the State’s failure to justify the delay, as well has

appellant’s acquiescence to the delay and failure to show prejudice resulting from such delay, we

     2
        We also note appellant did not request any lesser relief by, for example, asking the trial court to strike the State’s allegation concerning the
failed drug test.




                                                                         –7–
cannot conclude her right to a speedy revocation hearing was violated. We resolve the sole issue

against appellant and affirm her conviction.




                                                     /Ada Brown/
                                                     ADA BROWN
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

140516F.U05




                                               –8–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JASMINE EAQUENDALYN-DYS REED,                         On Appeal from the County Court at Law
Appellant                                             No. 5, Collin County, Texas
                                                      Trial Court Cause No. 005-82888-07.
No. 05-14-00516-CR         V.                         Opinion delivered by Justice Brown. Justices
                                                      Lang and Whitehill participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 23rd day of July, 2015.




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