Affirmed and Memorandum Opinion filed December 31, 2019.




                                      In The

                    Fourteenth Court of Appeals

                               NO. 14-18-00619-CR

                        DAVID STILES, JR., Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 424th District Court
                           Burnet County, Texas
                        Trial Court Cause No. 46487

                          MEMORANDUM OPINION

      A jury found appellant, David Stiles, Jr., guilty of sexual assault. In a single
issue, appellant contends his Sixth Amendment right to a speedy trial was violated.
We affirm.
                          I.    RIGHT TO A SPEEDY TRIAL

      In his sole issue, appellant contends that a delay of more than four years and
five months between his arrest and trial violated his Sixth Amendment right to a
speedy trial.

      A. Legal Principles

      “The Sixth Amendment to the United States Constitution, made applicable
through the Fourteenth Amendment, guarantees a speedy trial to an accused.”
Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014). A court should
consider the four Barker factors in addressing a speedy-trial claim: (1) the length of
delay, (2) the State’s reason for delay, (3) the defendant’s assertion of his right to a
speedy trial, and (4) prejudice to the defendant because of the length of the delay.
See Barker v. Wingo, 407 U.S. 514, 530 (1972); see also Balderas v. State, 517
S.W.3d 756, 767 (Tex. Crim. App. 2016). To trigger a full Barker analysis, a
defendant must first make a threshold showing that the interval between accusation
and trial is “presumptively prejudicial.” Balderas, 517 S.W.3d at 767. Generally,
courts deem delays approaching one year as unreasonable enough to trigger further
inquiry. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).

      We give almost total deference to the trial court’s historical fact findings that
are supported by the record and draw reasonable inferences from those facts
necessary to support the trial court’s findings. Balderas, 517 S.W.3d at 767–68.
When a defendant loses a speedy trial claim in the trial court, we presume that the
trial judge resolved any disputed fact issues in the State’s favor, and we defer to the
implied findings of fact that the record supports. Cantu v. State, 253 S.W.3d 273,
282 (Tex. Crim. App. 2008). We will not consider any record evidence that was not
before the trial court when it made its ruling. Balderas, 517 S.W.3d at 768. Review


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of the Barker factors involves both fact determinations and legal conclusions, but,
the balancing test is a purely legal question that we review de novo. Id.

      B. Background

      Appellant was charged with a sexual assault that occurred in October 2011.
Appellant filed a motion to set aside the indictment for violating his constitutional
right to a speedy trial on May 7, 2018. Trial was set for, and occurred on, May 21,
2018. Prior to trial, the trial court conducted a hearing on appellant’s motion.

      The case investigator from the Burnet County Sheriff’s Department testified
regarding the investigation, timeline, and reason for the delay in bringing the case to
trial. On October 22, 2011, the complainant reported that she had been sexually
assaulted by appellant. The sexual assault occurred while complainant,
complainant’s boyfriend, appellant, appellant’s father, appellant’s two brothers, and
a few other individuals were visiting a lake house in Burnet County for the weekend.
Shortly after the assault was reported, the investigator interviewed the complainant
and her boyfriend, and attempted to contact appellant and his father. The investigator
managed to speak briefly with both appellant and appellant’s father. Neither
appellant nor his father returned any of the investigator’s numerous phone calls or
messages. The investigator testified that she was aware that appellant worked for the
family business, located approximately seventy miles south of Burnet County. She
did not go to appellant’s location to attempt to take his statement or otherwise
interview him.

      Appellant was arrested for the sexual assault in December 2013. Ten months
later, in October 2014, the investigator obtained a search warrant to obtain
appellant’s DNA sample. The investigator testified that the delay between the arrest
and the search warrant was because she was waiting for appellant to let her know
that he had retained an attorney. Through counsel, appellant agreed to meet with the
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investigator to allow the search warrant to be executed. A few days after executing
the search warrant, the investigator submitted appellant’s DNA swab to the lab for
analysis. Two years later, in November 2016, the lab transmitted the results to the
investigator. In April 2017, nearly five months after the lab issued its analysis and
more than three years after his arrest, appellant was indicted for the sexual assault.

      At the hearing, appellant’s father testified regarding who was present at the
lake house when the sexual assault occurred and whether those individuals were
present to provide testimony at trial. He indicated that one person who had been
present at the lake house was unable to be located. He admitted that he believed that
all the other individuals that had been at the lake house were present to testify.
Appellant’s father testified that he would have been able to give a more detailed
explanation and recollection of events had he been questioned sooner and that he
expected the other witnesses would have the same issue.

      The docket sheet indicates that an arraignment hearing was set for May 2017
and that appellant waived his right to that hearing by motion. Between June and
December 2017, there were four status hearings which were all reset by agreement.
Trial was scheduled for March 5, 2018, but due to the unavailability of a State’s
witness, the trial setting was continued until May 21, 2018. Appellant filed a motion
to set aside the indictment for failure to afford his constitutional right to a speedy
trial on May 7, 2018.

      After having “considered the motion and weighed the Barker factors” the trial
court denied the motion and proceeded to trial on the same day. The trial court did
not issue any order, fact findings, or legal conclusions.




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      C. Analysis

          1. Length of Delay

      “In determining whether a speedy trial has been denied, the length of delay is
measured from the time the defendant was accused.” McCarty v. State, 498 S.W.2d
212, 214 (Tex. Crim. App. 1973). The State concedes that the length of delay in this
case triggers further inquiry and analysis of the Barker factors. See Balderas, 517
S.W.3d at 767. The delay of four years and five months between arrest and trial
stretched far beyond the minimum needed to trigger the inquiry. See Dragoo, 96
S.W.3d at 314. As a result, this factor weighs heavily in favor of finding a violation
of the speedy trial right. See id.

          2. Reason for Delay

       The State has the burden to justify the delay. Cantu, 253 S.W.3d at 280. “A
more neutral reason such as negligence or overcrowded courts should be weighted
less heavily but nevertheless should be considered since the ultimate responsibility
must rest with the government rather than with the defendant.” Barker, 407 U.S. at
531. A valid reason, such as a missing witness or good faith plea negotiations,
should serve to justify appropriate delay. See id.; State v. Munoz, 991 S.W.2d 818,
824 (Tex. Crim. App. 1999). When the State fails to establish a reason for the delay,
we may presume neither a deliberate attempt to prejudice the defense nor a valid
reason for the delay. Dragoo, 96 S.W.3d at 314; State v. Wei, 447 S.W.3d 549, 544
(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). The State argues that the
evidence shows that the State was not willfully delaying trial, but instead was merely




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negligent in preparing and taking the case to trial. As a result, the State argues this
factor should not weigh heavily against it.

      One of the largest delays in moving this case to trial was the two-year period
during which the lab analysis on the DNA samples was pending. The investigator
testified that without the lab analysis, there was no physical evidence linking
appellant to the sexual assault and the case would otherwise be solely based on the
complainant’s testimony against appellant. While this circumstance might be an
adequate justification for some of the delay, it does not take into account the delay
between the arrest and obtaining a search warrant, and from indictment to trial.
Some of the delay—a period of eight months between indictment and trial—was due
to agreed resets. The State also moved for a continuance in March 2018, due to
witness unavailability. Thus, while there was a significant delay, the portion to
which appellant agreed, as well as a continuance due to witness unavailability is
considered justified. See Barker, 407 U.S. at 531; Munoz, 991 S.W.2d at 824. The
State did not offer any other reason to justify the other delays. Absent a reason for
the delay, a court may presume neither a deliberate attempt on the part of the State
to prejudice the defense, nor a valid reason for the delay. See Dragoo, 96 S.W.3d at
314. This factor weighs against the State, but not heavily. See id.

           3. Assertion of the Right

      Although a motion for a speedy trial cannot be filed until formal charges are
made, the right to one can be asserted in other ways. Cantu, 253 S.W.3d at 283.
“Invocation of the speedy trial provision . . . need not await indictment, information,
or other formal charge.” United States v. Marion, 404 U.S. 307, 321 (1971); see also
Dillingham v. United States, 423 U.S. 64, 65 (1975) (per curiam). Where a defendant
does not ask for a speedy trial, and instead only asks for dismissal, it is incumbent
upon the defendant to show some attempt to get the case into court so that trial could

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occur in a speedy manner. Cantu, 253 S.W.3d at 284. An accused who has been
arrested but not formally charged has a choice:

      [H]e can wait until he is charged, then file a motion for a speedy trial,
      and, if this request is not honored, he can then file a motion to dismiss
      because he diligently sought what he was entitled to—a speedy trial.
      Or, he can wait until he is charged and simply file a motion to dismiss
      if he can show that he diligently tried to move the case into court before
      formal charges were filed.
Id. at 284–85. In Cantu, the defendant never sought or requested a speedy trial, only
an outright dismissal and tried to prove that he acted on the desire for a speedy
resolution before he was charged. Id. at 285. Here, like in Cantu, there was no
showing or evidence that appellant ever sought or requested a speedy trial.
Appellant sought an outright dismissal without attempting to show that he acted on
the desire for a speedy resolution. Instead of asserting his right to a speedy trial after
being indicted, appellant agreed to resets of the trial for eight months. Nothing in the
record reveals that appellant asserted his right to a speedy trial prior to his motion to
dismiss filed just before trial. See Barker, 407 U.S. at 532 (emphasizing that a
defendant’s failure to assert his right to a speedy trial “will make it more difficult for
a defendant to prove that he was denied a speedy trial”); Munoz, 991 S.W.2d at 826
(concluding inaction dispositive of the “assertion of the right” Barker factor where
nothing moved for or filed prior to defendant’s motion to dismiss the indictment
expressly reflected an assertion of defendant’s speedy trial right).

      Appellant argues that he timely asserted his right to a speedy trial through
motion, citing Phillips v. State in support. 650 S.W.2d 396 (Tex. Crim. App. 1983).
In Phillips, the defendant was unaware that he had been indicted for over a year. Id.
at 400. Once the defendant was notified of the indictment, the defendant then delayed
asserting his right to a speedy trial for another four months and filed his motion to
dismiss only seven days prior to trial. Id. at 401. Instead of requesting a speedy trial,

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the defendant sought dismissal. Id. However, the record did not reflect when the
defendant had retained counsel, what investigation counsel undertook of the matter,
and the length of time the investigation took. Id. The record also revealed that a co-
defendant had died in the interim, which the defendant asserted caused him
prejudice. Id.

      In this case, unlike in Phillips, appellant cannot assert that he did not know of
the allegations asserted against him. The case investigator testified that she had
called appellant and his father at least fourteen times to discuss the allegations.
Appellant retained counsel in December 2013, shortly after his arrest. Even
assuming a lengthy investigation by counsel, there is nothing in the record to reflect
that appellant attempted to get his case to trial in a speedy manner before seeking
dismissal. Between appellant’s arrest and trial setting, a period of more than four
years, there is no indication that appellant took any action to assert his right to a
speedy trial despite being represented by counsel during that entire period. Instead,
after indictment, appellant agreed to multiple resets that further delayed trial. Trial
occurred within two weeks of appellant filing his speedy trial motion. There is also
no assertion that a key fact witness died or was otherwise unavailable due to the
lapse of time between arrest and trial. The longer the delay is, the more heavily the
defendant’s inaction weighs against him. See Dragoo, 96 S.W.3d at 314.

      The absence of any evidence to show that appellant attempted to get his case
to trial in a speedy fashion and that his first motion sought dismissal weighs heavily
against his claim that he truly sought a speedy trial. See Cantu, 253 S.W.3d at 284
(“[F]ailure to diligently and vigorously seek a rapid resolution is entitled to strong
evidentiary weight.” (quotation omitted)); Dragoo 96 S.W.3d at 315 (“In view of




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the lengthy delay here, in which [the defendant] quietly acquiesced, this factor
weighs heavily against finding a violation of the speedy trial right.”).

          4. Prejudice

      “When a court analyzes the prejudice to the defendant, it must do so in light
of the defendant’s interests that 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.”
Cantu, 253 S.W.2d at 285. Of these, the last is the most serious because the
defendant’s inability to prepare his case skews the fairness of the entire system. Id.
“[E]xcessive delay presumptively compromises the reliability of a trial in ways that
neither party can prove or, for that matter, identify.” Doggett v. United States, 505
U.S. 647, 655 (1992). “On the other hand, this ‘presumption of prejudice’ is
‘extenuated . . . by the defendant’s acquiescence’ in the delay.” Dragoo, 96 S.W.3d
at 315 (omission in original) (quoting Doggett, 505 U.S. at 658).

      Though the delay is considered presumptively prejudicial to the defense,
appellant failed to demonstrate any prejudice. See id. at 315–16 (“prejudice” factor
weighed against violation of defendant’s speedy trial right even though three-and-a-
half-year delay was “patently excessive” and “presumptively prejudicial” because
defendant acquiesced in the delay and failed to demonstrate prejudice). Namely,
there was only one person of six total witnesses that was not available to testify at
trial. Appellant made no argument that the missing witness was a material fact
witness or that the missing witness could offer testimony that was in any way
different from those of the witnesses that would testify during trial. Appellant’s
father testified at the hearing that his memory would have been better had the trial
occurred closer to the incident. Appellant did not testify regarding the effect that the
pending charges had on him or the conditions that he had to meet for his bond.

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Appellant agreed to multiple resets that delayed trial.        The first assertion of
appellant’s speedy trial right was not made until two-weeks before the May 2018
trial setting. Because appellant acquiesced in the delay and failed to demonstrate
prejudice, this factor weighs against a speedy trial violation. See id.; Cantu, 253
S.W.3d at 285 (defendant’s testimony regarding ulcer and weekly check-ins with
bondsman considered evidence of “some degree of personal anxiety” but not one of
the “major evils protected against by the speedy trial guarantee”).

          5. Balancing the Barker Factors

      When balanced together, the weight of the four factors falls against
concluding that a violation of appellant’s right to a speedy trial occurred. See Barker,
407 U.S. at 534 (where defendant was not seriously prejudiced by five-year delay
between arrest and trial and defendant did not want speedy trial, defendant’s Sixth
Amendment right to a speedy trial not violated); Phipps v. State, 630 S.W.2d 942,
946 (Tex. Crim. App. 1982) (where defendant demonstrated no prejudice by four-
year delay between arrest and trial and defendant waited until one month before trial
to assert his right to a speedy trial, defendant’s Sixth Amendment right to a speedy
trial not violated); Dragoo, 96 S.W.3d at 316 (where defendant quietly acquiesced
in delay from three-and-a-half-years, showed no prejudice, and failed to assert




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speedy trial right until just prior to trial by requesting dismissal, defendant’s Sixth
Amendment right to a speedy trial not violated).

         We overrule appellant’s sole issue.

                                II.   CONCLUSION

         Having overruled appellant’s sole issue, we affirm the judgment of the trial
court.


                                        /s/    Ken Wise
                                               Justice


Panel consists of Chief Justice Frost and Justices Wise and Hassan.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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