Opinion of October 2, 2014, Withdrawn; Affirmed and Substitute Opinion
filed November 6, 2014.




                                      In The

                      Fourteenth Court of Appeals

                              NO. 14-14-00054-CR

                       THE STATE OF TEXAS, Appellant
                                        V.

                              BRIAN WEI, Appellee

                On Appeal from County Criminal Court at Law No. 2
                              Harris County, Texas
                          Trial Court Cause No. 1571823

                      SUBSTITUTE OPINION


       The opinion of October 2, 2014, is withdrawn and this opinion is substituted
in its place.

       Appellee was charged by information with driving while intoxicated in
January 2009. In June 2013, appellee filed a motion to dismiss for violation of his
right to a speedy trial. The trial court granted the motion and the State brought this
appeal. We affirm.

                                             BACKGROUND

       On the evening of January 2, 2009, appellee struck another vehicle from
behind while driving. First responders found appellee pinned under his vehicle.
Appellee was transported to the hospital where his left arm was amputated at the
elbow. An analysis of blood taken from him at the hospital showed a blood-alcohol
content of .171. Appellee was discharged from the hospital on January 10, 2009.

       On January 6, 2009, the State filed charges against appellee for driving
while intoxicated.1 The arrest warrant was never served. In April 2013, appellee
learned there was an outstanding warrant for his arrest. Appellee turned himself in
and posted bond on April 30, 2013.

       Subsequently, on June 18, 2013, appellee filed a motion on the grounds the
51-month delay between the date charges were filed and the date of his arrest
violated his right to a speedy trial. See U.S. CONST. amend. VI; Tex. Const. art. I,
§ 10; and Tex. Code Crim. Proc. art. 1.05. Following a hearing, the trial court
granted appellee’s motion.

                                               DISCUSSION

       We first note that Texas courts employ the same standard to enforce the state
constitutional right to a speedy trial as federal courts use to enforce the Sixth
Amendment right to a speedy trial. See Harris v. State, 827 S.W.2d 949, 956 (Tex.
Crim. App. 1992). Appellee makes no argument that his rights under state law
differ from those under federal law.

       1
           A person is intoxicated if their blood alcohol content is more than 0.08. Tex. Pen. Code
§ 49.01.

                                                 2
      I.     Pertinent Law

      The right to a speedy trial attaches once a person is either arrested or
charged. Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008), citing
United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).
A speedy trial claim is analyzed on a case-by-case basis by balancing the following
factors: (1) length of delay; (2) the reason for the delay; (3) the defendant’s
assertion of his right; and (4) the prejudice inflicted on the defendant by the delay.
Id. citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101
(1972). See also Henson v. State, 407 S.W.3d 764, 767 (Tex. Crim. App. 2013).
No single Barker factor is either necessary or sufficient to establish a violation of
the right to a speedy trial. Cantu, 253 S.W.3d at 281. Rather, the Barker factors
must be considered together, along with any other relevant circumstances. Id.

      If the delay from the date of accusation until trial is unreasonable enough to
be presumptively prejudicial, the first factor is satisfied and analysis of the
remaining three factors is triggered. Id. at 281, citing Doggett v. United States, 505
U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); and Zamorano v.
State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). The State must satisfy its
burden of justifying the length of the delay while the defendant must meet his
burden of proving the assertion of the right and showing prejudice. Cantu, 253
S.W.3d at 280. The State’s reason for the delay serves to determine how heavily
the length of the delay should weigh against the State. Zamorano, 84 S.W.3d at
649. The defendant’s burden of proof varies inversely to the State’s degree of
culpability for the delay. Cantu, 253 S.W.3d at 280. In other words, “the greater
the State’s bad faith or official negligence and the longer its actions delay a trial,
the less a defendant must show actual prejudice or prove diligence in asserting his
right to a speedy trial.” Id. at 280–81.

                                           3
       We apply a bifurcated standard of review to a trial court’s ruling on a speedy
trial claim. Id. at 282. The factual components are reviewed for an abuse of
discretion, while the legal components are reviewed de novo. Id. Review of the
individual Barker factors necessarily involves factual determinations and legal
conclusions, but the balancing test as a whole is “a purely legal question.” Id. With
regard to the trial court’s determination of factual issues, we view all the evidence
in the light most favorable to the trial court’s ruling. Id.

   A. Length of the Delay
       A total of 51 months elapsed from the filing of charges against appellee and
his arrest.2 The State concedes that the delay was sufficiently lengthy to trigger an
analysis of the other factors. We agree. See Zamorano, 84 S.W.3d at 649 (delay of
58 months in a plain-vanilla DWI case was sufficiently lengthy to trigger analysis
of the other Barker factors). In this case, the delay was 43 months longer than the
minimum usually found to be presumptively unreasonable. See Harris v. State, 827
S.W.2d 949, 956 (Tex. Crim. App. 1992) (recognizing that courts generally hold
that any delay of eight months or longer is presumptively unreasonable and
triggers speedy trial analysis). “Because the length of the delay stretched well
beyond the bare minimum needed to trigger judicial examination of the claim, this
factor—in and of itself—weighs heavily against the State.” Zamorano, 84 S.W.3d
at 649.

   B. Reason for the Delay
       The burden of justifying the delay falls on the State. Cantu, 253 S.W.3d at
280. The particular reason for the delay will determine how heavily this factor

       2
          Because the eight-month delay from appellee’s arrest until the hearing was a result of
seven resets, six of which were requested by appellee and the State’s sole reset was only for eight
days, we do not disagree with the trial court’s determination not to include that time period in its
analysis.

                                                 4
should weigh against the State. Zamorano, 84 S.W.3d at 649. While intentional or
deliberate prosecutorial delay will weigh heavily against the State, neutral reasons,
such as negligence or overcrowded courts, will be less heavily weighed.
Id. (citing Barker, 407 U.S. at 531, 92 S.Ct. 2182). A valid delay should not weigh
against the State at all. See State v. Munoz, 991 S.W.2d 818, 822 (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 that the reason is
valid. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). The reason for
the delay is a fact-specific inquiry and may not be readily apparent from the trial
record. Henson, 407 S.W.3d at 769.

      As set forth above, the relevant time period for the delay is from January
2009 until April 2013. The record reflects that it was undisputed that during the
relevant time period appellee continued to live at the address listed on the
complaint. The State concedes that there was no evidence that law enforcement
ever attempted to serve the warrant in this case. The State admits there was no
evidence of a specific reason for the 51-month delay in this case. The
uncontradicted testimony of Sergeant Elofson at the hearing demonstrates the
delay was caused by negligence. Because the reason for the delay was not valid,
this factor does weigh against the State, albeit not heavily because the delay was
not intentional or deliberate. See Dragoo, 96 S.W.3d at 314.

   C. Assertion of the Right
      The record reflects appellee sought dismissal for violation of his right to a
speedy trial less than two months after he learned of the charges and was arrested.
Citing Cantu, 253 S.W.3d at 283, the State argues appellee’s claim is weakened
because he sought dismissal rather than a speedy trial.



                                         5
      The court in Cantu was considering a 16-month delay from the date of arrest
until the defendant was charged. The court found the trial court’s conclusion that
this factor weighed against the defendant was supported by the record showing the
defendant did not establish “that he had tried to get the case into court so that he
could go to trial in a timely manner.” Id. at 284. In this case however, appellee was
not arrested at the outset and did not know, as Cantu did, that his right to a speedy
trial was being violated. Because charges were filed but no attempt was ever made
to arrest appellee, he was unaware of the need to “get the case into court.” In a case
such as this, where it is undisputed appellee had no knowledge charges were
pending for over four years, we disagree the filing of a motion to dismiss weighs
against him. We conclude appellee’s assertion of his right to a speedy trial is a
factor that weighs in his favor.

   D. Prejudice
      We assess prejudice in light of the interests that the speedy trial right was
designed to protect: preventing oppressive pretrial incarceration, minimizing
anxiety and concern of the accused, and limiting the possibility that the defense
will be impaired. Zamorano, 84 S.W.3d at 652. Of these types of prejudice, the last
is the most serious because the inability of a defendant adequately to prepare his
case skews the fairness of the entire system. Cantu, 253 S.W.3d at 283 (citing
Dragoo, 96 S.W.3d at 315). The 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; State v. Smith, 76 S.W.3d 541, 551 (Tex. App.–Houston [14th
Dist.] 2002, pet. ref’d). When the defendant makes a prima facie showing of
prejudice, the burden shifts to the State to show that the defendant suffered “no
serious prejudice beyond that which ensued from the ordinary and inevitable
delay.” Munoz, 991 S.W.2d at 826; Smith, 76 S.W.3d at 551. A defendant who has
made a prima facie showing of prejudice will be entitled to relief unless the
                                          6
presumption of prejudice is (1) persuasively rebutted by the State, or (2)
extenuated by the defendant’s acquiescence in the delay. Doggett v. United States,
505 U.S. 647, 658, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

      Appellee concedes there was no pretrial incarceration and he did not suffer
anxiety or concern because he was unaware of the charges. In his motion, appellee
argued a presumption of prejudice was warranted by the lengthy delay. In its brief,
the State recognizes that a lengthy delay may be presumptively harmful. However,
the State seeks a holding from this court that unless the delay was longer than six
years, a presumption of harm is insufficient to require dismissal in cases where the
delay is caused by the State’s negligence.

      Recently, the Texas Court of Criminal Appeals considered whether a
defendant’s right to a speedy trial was violated after a six-year delay caused by the
State’s negligence in failing to pursue the defendant. Gonzales v. State, 435
S.W.3d 801, 810 (Tex. Crim. App. 2014).          In that case, as in this one, the
defendant spent no time in jail before his arrest and was unaware an indictment had
been presented. After finding the first three Barker factors all weighed in favor of
the defendant, the court considered the fourth factor — prejudice.

      The court reiterated that “the length of delay may be so excessive that it
‘presumptively compromises the reliability of a trial in ways that neither party can
prove or identify.’” Id. at 812 (quoting Shaw v. State, 117 S.W.3d 883, 890 (Tex.
Crim. App. 2003) (citing Doggett, 505 U.S. at 655). “In such instances, the
defendant is absolved from the requirement to demonstrate prejudice.” Id.

      In Gonzales, the court discusses three cases in which a lengthy delay was
caused by the State’s negligence. Id. at 812–14 (citing Doggett, 505 U.S. at 653
(over eight years); United States v. Cardona, 302 F.3d 494, 498 (5th Cir. 2002)
(five years); and United States v. Molina-Solario, 577 F.3d 300, 304 (5th Cir.
                                         7
2009) (ten years)). In all three cases, prejudice was presumed based upon the
State’s failure to affirmatively prove the delay left the defendant’s ability to defend
himself unimpaired. Id. (citing Doggett, 505 U.S. at 658; Cardona, 302 F.3d at
498; and Molina-Solario, 577 F.3d at 307). In none of these cases was prejudice
presumed because the length of the delay reached a “magic number.”3 The delay in
this case was only nine months less than that of Cardona and extended more than
six times beyond the minimum amount of time required to trigger a full Barker
analysis. These cases, like Gonzalez, turned upon whether the State rebutted or
extenuated the presumption of prejudice.

       Nevertheless, the State implies it bore no burden to rebut because appellee
made no allegation of harm in his motion nor put on evidence of actual harm at the
hearing. We disagree.

       The State cites a prior opinion from this court, Guajardo v. State, 999
S.W.2d 566 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d), in which we
affirmed the trial court’s denial of a motion to dismiss for violation of the right to
speedy trial after a delay of less than five years. The State recognizes the reasoning
in Guajardo was disapproved of in an unpublished decision by the Texas Court of
Criminal Appeals in Gonzales v. State, PD-0724-12, 2013 WL 765575 (Tex. Crim.
App. Feb. 27, 2013) but claims it still supports its position that appellant needed to
show actual harm to prevail on a speedy trial claim.4 The Gonzales court of appeals
decision relied upon our Guajardo decision:


       3
          Even though the delay in Gonzales was six years, the court did not suggest that the
length of the delay must be six years to give rise to the presumption of prejudice. We therefore
decline the State’s request to hold that a presumption of prejudice only arises after a delay of six
years or more.
       4
       We discuss the unpublished Gonzales opinion only to explain why we reject the State’s
argument.

                                                 8
      The first three Barker factors weigh in favor of Gonzales.
      Furthermore, the nearly six-year delay gives rise to a presumption that
      the delay was prejudicial. However, Gonzales has failed to make a
      prima facie showing that his defense was impaired as a result of the
      delay. See Russell, 90 S.W.3d at 874; Guajardo, 999 S.W.2d at 571.
      We conclude that the lack of prejudice to Gonzales from the delay
      outweighs the first three Barker factors. See Russell, 90 S.W.3d at
      874[5] (finding no speedy trial violation when first three factors
      weighed in appellant’s favor and presumptive prejudice was rebutted
      by failure to demonstrate any prejudice); Guajardo, 999 S.W.2d at
      571 (same). Accordingly, we hold that Gonzales did not establish that
      his right to a speedy trial was violated, and we overrule this issue.
Gonzales v. State, 04-11-00405-CR, 2012 WL 1364981 (Tex. App.—San Antonio
Apr. 18, 2012, pet. granted (Sept. 26, 2012)), rev’d, PD-0724-12, 2013 WL
765575 (Tex. Crim. App. Feb. 27, 2013). But thehe Texas Court of Criminal
Appeals reversed, expressly finding that “the Court of Appeals improperly placed
the burden on the appellant to demonstrate that he was prejudiced by the excessive
delay between his indictment and trial.” Gonzales, 2013 WL 765575, at *1. Thus,
the court remanded to the lower court “for consideration of appellant’s claim under
the correct standard for determining prejudice.” Id.

      On remand, the court of appeals reviewed the record to “determine whether
the State rebutted the presumptive prejudice caused by the six-year delay.”
Gonzales v. State, 04-11-00405-CR, 2013 WL 4500656 (Tex. App.—San Antonio
Aug. 21, 2013, pet. granted (Dec. 18, 2013)), aff’d, 435 S.W.3d 801 (Tex. Crim.
App. 2014). After finding the State had not rebutted the presumptive prejudice, the
court of appeals held the trial court erred in denying Gonzales’s motion to dismiss
for lack of a speedy trial. The Texas Court of Criminal Appeals affirmed that
decision stating “that the State has failed to persuasively rebut the presumption of
prejudice in this case.” Gonzales, 435 S.W.3d at 815. In Gonzales, the court

      5
          Russell v. State, 90 S.W.3d 865, 873 (Tex. App.—San Antonio 2002, pet. ref’d).

                                               9
rejected the placement of the burden on a defendant to demonstrate actual harm
arising from the delay to prevail on a speedy trial claim. We therefore must
conclude that the burden of proof we established in Guajardo conflicts with
Gonzales and is therefore no longer good law.

      Absent a showing that appellee acquiesced in the delay, it was the State’s
burden to rebut the presumption of prejudice because appellee was “absolved from
the requirement to demonstrate prejudice.” Id. at 812. As discussed above, the
record shows that appellee did not acquiesce in the 51-month delay. Accordingly,
we conclude the State failed to vitiate the presumption of prejudice by proving that
appellee acquiesced to the delay.

      The State further argues it is “highly improbable that the appellee’s ability to
mount a defense was impaired” and that the State’s evidence “is unlikely to have
deteriorated in a way that will harm the appellee.” The State fails to cite to any
evidence in the record supporting its suppositions. The court in Gonzales
recognized the burden shifted to the State might be difficult to meet but it is a
necessary one. Id. at 814. See Doggett, 505 U.S. at 654 n. 4 (recognizing the
Government “has not, and probably could not have, affirmatively proved that the
delay left [the defendant’s] ability to defend himself unimpaired.”). Because the
State failed to affirmatively prove that the excessive delay did not impair
appellee’s ability to defend himself, the presumption of prejudice was not rebutted.
The dismissal of an indictment is not to be taken lightly but because the State
neglected to make any effort to pursue appellee for over four years we find the
facts of this case fall within the parameters of Doggett and Gonzalez. Thus the
fourth factor also weighs in favor of appellee.




                                         10
      II. Balancing the Barker Factors

      Having addressed the four Barker factors, we now balance them. Weighing
in favor of finding a violation of appellee’s speedy trial right is the excessive delay.
The reason for the delay, the State’s negligence, also weighs in favor of appellee.
Less than two months after his arrest, appellee asserted his right to a speedy trial
had been violated. This factor therefore also weighs in his favor. Because appellee
did not acquiesce to the delay and the State failed to affirmatively prove his ability
to defend himself was not impaired by the delay, prejudice is presumed. Thus the
final factor also weighs in appellee’s favor. We hold the weight of the four factors,
balanced together, is in favor of finding a violation of appellee’s right to as speedy
trial. Accordingly, we conclude the trial court did not err in granting appellee’s
motion to dismiss the indictment based on a speedy trial violation. The State’s sole
issue is overruled and the trial court’s order is affirmed.




                                        /s/     Sharon McCally
                                                Justice



Panel consists of Justices McCally, Brown, and Wise.
Publish — Tex. R. App. P. 47.2(b).




                                           11
