AFFIRM; and Opinion Filed January 22, 2014.




                                         S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-13-00876-CR

                                JON PAUL GOFF, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 291st Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-0918879-U

                             MEMORANDUM OPINION
                           Before Justices O’Neill, Myers, and Brown
                                   Opinion by Justice O’Neill
       Appellant Jon Paul Goff was charged with possession with intent to deliver

methamphetamine. He filed a pretrial motion to dismiss for lack of a speedy trial, which the trial

court denied.   Appellant pleaded guilty to the charges, and the trial court sentenced him to

eighteen years’ in prison. On appeal, he argues the trial court erred by denying his motion to

dismiss for lack of a speedy trial, and the trial court did not have jurisdiction to hear his case.

We affirm.

                                          Background

       Appellant was indicted in Dallas County on October 14, 2009. Appellant was out on

bond until it was held insufficient and a warrant was activated.       Appellant was arrested on

unrelated charges in Tarrant County on October 4, 2011. According to appellant, the State knew

he was in Tarrant County because he filed a motion to reduce bail for the Dallas County offense
on May 14, 2012, stating he was in incarcerated in Tarrant County. On July 16, 2012, appellant

filed an application for a bench warrant to be brought to Dallas County. A bench warrant issued

on July 27, 2012. The record does not explain why the bench warrant was not executed.

       On August 1, 2012, appellant filed his first motion for speedy trial, or alternatively,

motion to dismiss for want of prosecution. A second bench warrant issued on August 15, 2012,

and appellant was returned to Dallas County.

       Appellant’s case was set for appearance on August 28, 2012. Without explanation or

complaint, his case was passed over nine times between September 2012 and March 2013.

Appellant filed motions to dismiss based on lack of a speedy trial on February 12, 2013 and

March 28, 2013. After three more settings, the case went to trial on May 28, 2013. However,

after voir dire appellant pleaded guilty to the charge. The trial court sentenced him to eighteen

years’ imprisonment. This appeal followed.

                                    Right to a Speedy Trial

       In his first issue, appellant argues the trial court erred by denying his motion to dismiss

for want of a speedy trial. The State responds that after a proper balancing of the Barker factors,

the trial court did not err in denying his motion. See Barker v. Wingo, 407 U.S. 514 (1972).

       We review the trial court’s ruling on a speedy trial claim under a bifurcated standard of

review, which involves an abuse of discretion standard to the trial court’s factual findings and a

de novo standard to the trial court’s legal conclusions. Cantu v. State, 253 S.W.3d 273, 282

(Tex. Crim. App. 2008).

       The Sixth Amendment to the United States Constitution and article one, section ten of the

Texas Constitution guarantees an accused the right to a speedy trial. U.S. CONST. amend. VI;

TEX. CONST. art. 1, § 10. Whether raised under the federal or state constitution, we analyze

speedy trial claims on an ad hoc basis by weighing and then balancing four factors: (1) the length

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of the delay; (2) the reason for the delay; (3) assertion of the right; and (4) prejudice to the

accused. Barker, 407 U.S. at 530. No single factor is necessary or sufficient to establish a

violation. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). Rather, courts must

“engage in a difficult and sensitive balancing process” that takes into account the parties’ overall

conduct.   Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002).                 Review of the

individual factors necessarily involves fact determinations and legal conclusions, but the

balancing test as a whole is a purely legal question. Cantu, 253 S.W.3d at 282.

       While the State has the burden of justifying the length of the delay, the defendant has the

burden of proving the assertion of the right and showing prejudice. Id. at 280. However, the

defendant’s burden of proving a speedy trial violation varies inversely with the State’s degree of

culpability and the length of the delay. Id. “Thus, 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.

       The first factor we consider is the length of the delay, which is the triggering mechanism

for analyzing the remaining three Barker factors.         Barker, 407 U.S. at 530.         Courts have

generally concluded that a post-accusation delay of about one year is presumptively prejudicial

for purposes of the length-of-delay factor. See Doggett v. U.S., 505 U.S. 647, 652 n.1 (1992);

Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). Here, appellant was arrested in

October 2009. He filed his motion for a speedy trial on August 1, 2012. The State concedes this

length of delay requires us to analyze the remaining Barker factors.

       Once it is determined that a presumptively prejudicial delay has occurred, the State bears

the burden of justifying the delay. Cantu, 253 S.W.3d at 280–81. When assigning weight to the

reasons for the delay given by the State, different reasons deserve different weight. Barker, 407

U.S. at 531. Intentional prosecutorial delays are weighed heavily against the State, while more

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“neutral” reasons, such as negligence or overcrowded dockets, are weighed less heavily against

it. Zamorano, 84 S.W.3d at 649. However, delay which is attributable in whole or in part to the

defendant can weigh against the defendant and may even constitute a waiver of a speedy trial

claim. Barker, 407 U.S. at 529; Murphy v. State, 280 S.W.3d 445, 453 (Tex. App.—Fort Worth

2009, pet. ref’d) (noting defendant was responsible for the delay when defendant requested and

further agreed to numerous continuances). “In the absence of an assigned 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.” Dragoo, 96 S.W.3d at 314.

       The record shows that only one month elapsed between appellant’s first application for a

bench warrant until he was returned to Dallas County, and less than a month elapsed from the

time he filed a motion for speedy trial and received a first trial setting. Appellant’s case was

passed over nine times between September 2012 and March 2013. After three more settings, the

case went to trial on May 28, 2013. None of the numerous passes appear to be objected to by

either the State or appellant; therefore, we should not presume either a valid reason or a

deliberate attempt by the State to prejudice the defense. See Dragoo, 96 S.W.3d at 314; Starks v.

State, 266 S.W.3d 605, 611 (Tex. App.—El Paso 2008, no pet.). Thus, this factor does not

weigh in favor of either party.

       As to the third factor–assertion of his right to a speedy trial–the record weighs against

appellant. A defendant’s failure to make a timely demand for a speedy trial indicates strongly

that he did not really want one and that he was not prejudiced by not having one. Shaw, 117

S.W.3d at 889. Furthermore, the longer the delay becomes, the more likely it is that a defendant

who really wanted a speedy trial would take some action to obtain one. Id. Thus, a defendant’s

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




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       Appellant’s first request for a speedy trial was on August 1, 2012 after he was indicted on

October 14, 2009.     As such, appellant’s inaction for almost three years strongly indicates

appellant did not really want a speedy trial. Moreover, once appellant was returned to Dallas

County, he was offered a plea bargain on September 6, 2012. His case then continued to be reset

without further action on his part until February 2013.

       On February 12, 2013, appellant filed a motion to dismiss. He filed a second motion to

dismiss on March 28, 2013.         Contemporaneously requesting a speedy trial and dismissal

weakens a defendant’s case for a speedy trial violation. Cantu, 253 S.W.3d at 283. Requesting

dismissal of the charges, rather than requesting a prompt trial setting, indicates a “desire to have

no trial instead of a speedy one.” Id. Therefore, appellant’s motion to dismiss the charges

against him reflects he wanted no trial, rather than a speedy trial. Accordingly, this factor

weighs against appellant.

       Finally, we consider possible prejudice against appellant.      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. Id. at 285. 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.”

Id. (citing Dragoo, 96 S.W.3d at 315).          Further, it is well-established that a defendant

incarcerated on another charge is entitled to the same speedy trial rights as a defendant on bail.

See Chapman v. Evans, 744 S.W.2d 133, 137 (Tex. Crim. App. 1988) (orig. proceeding). Such a

defendant may (1) lose the possibility that he might receive a sentence at least partially

concurrent with the one he is presently serving; (2) have the duration of the present

imprisonment increased and conditions under which he must serve his sentence greatly

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worsened; and (3) suffer from the same anxiety and depression of the defendant at large under a

pending charge. Id.; see also Smith v. Hooey, 393 U.S. 374, 378 (1969).

        In his motion, appellant argued the delay prejudiced him because he was sentenced to a

term of imprisonment in Tarrant County, and the State’s failure to resolve his case prior to

incarceration negatively impacted the possibility of concurrent sentencing. Further, he argued

his claim involved a confidential informant, and the ability to locate the confidential informant,

as well as other witnesses, was hindered by the passage of time.

        To make a showing of some prejudice due to missing witnesses, a defendant is required

to show the witnesses were unavailable, their testimony might be material and relevant to the

case, and that he has exercised due diligence in attempting to locate the witnesses and produce

them for trial. Gupta v. State, No. 05-12-00861-CR, 2013 WL 4041548, at *7 (Tex. App.—

Dallas Aug. 9, 2013, no pet.) (not designated for publication); Prihoda v. State, 352 S.W.3d 796,

805 (Tex. App.—San Antonio 2011, pet. ref’d) (holding that statement by defense that it “has

lost two key witnesses and have been substantially prejudiced” was not enough to show

prejudice in delay of trial).   Here, the record shows nothing more than defense counsel’s

statement that “Any witnesses have long gone or [are] difficult to locate.” Appellant did not

provide the names of any witnesses, state that the witnesses are unavailable, explain any attempts

he made to locate the witnesses, or describe the relevance of the witnesses’ testimony. Thus, we

cannot conclude appellant has shown the passage of time has prejudiced his ability to prepare his

case.

        As to his claim regarding concurrent sentencing, the record indicates the State provided

two opportunities for appellant to plead to the charge–once on May 23, 2011 and a second time

on September 6, 2012. Furthermore, once appellant was returned to Dallas County, rather than

proceed to trial, he seemingly agreed to resettings. Thus, any presumption of prejudice regarding

                                               –6
concurrent sentencing is diminished by appellant’s acquiescence to the various delays prior to his

trial. See Dragoo, 96 S.W.3d at 316 (presumption of prejudice is extenuated by defendant’s

longtime acquiescence in the delay).

         Finally, appellant argues he was prejudiced because a detainer was placed on him, which

caused him to be denied parole in Tarrant County. However, again his argument overlooks the

fact he was returned to Dallas County within one month of his request, and he did not complain

about any subsequent delays or resetting of his case until months later. Accordingly, appellant

failed to demonstrate prejudice, and this factor weighs against finding a violation of his speedy

trial right.

         Having addressed the four Barker factors, we must now balance them. Weighing in favor

of finding a violation of appellant’s speedy trial right is the excessive delay. The reason for the

delay is neutral, as the record clearly indicates the case was repeatedly reset but the reasons for

the resettings are unclear. Therefore, we may presume neither a deliberate attempt on the part of

the State to prejudice the defense nor a valid reason for the delay. Weighing against finding a

violation of the right is appellant’s failure to demonstrate prejudice, his acquiescence to the

eleven-month delay after his return to Dallas County, and his requests to dismiss the charges

against him. We hold that the weight of the four factors, balanced together, is against finding a

violation of appellant’s right to a speedy trial. Appellant’s first issue is overruled.

                                     Trial Court’s Jurisdiction

         In his second issue, appellant argues the 291st District Court of Dallas County, Texas did

not obtain jurisdiction over the indictment because the indictment was returned from Criminal

District Court Number Seven of Dallas County, Texas, and no transfer order appears in the

record. Courts have held that when a record does not contain a transfer order, the error is one of

procedure and not jurisdiction. See Lemasurier v. State, 91 S.W.3d 897, 899 (Tex. App.—Fort

                                                 –7
Worth 2002, pet. ref’d); Bridwell v. State, No. 05-07-00258-CR, 2008 WL 467271, at *2 (Tex.

App.—Dallas Feb. 23, 2008, no pet.) (not designated for publication). The absence of a transfer

order in the record does not render the actions of the transferee court void. Lamasurier, 91

S.W.3d at 899; Bridwell, 2008 WL 467271, at *2. Rather, it merely makes the transferee court’s

action subject to a timely plea to the jurisdiction. Lamasurier, 91 S.W.3d at 899. If a defendant

fails to file a timely plea to the jurisdiction, he waives any right to complain that a transfer order

does not appear in the record. Mills v. State, 742 S.W.2d 832, 835 (Tex. App.—Dallas 1987, no

writ); Bridwell, 2008 WL 467271, at *2.

       Appellant did not file a plea to the jurisdiction. Moreover, appellant admits the case law

is well-settled against him and appears to ask us to revisit the issue because the cases “simply

cite to their antecedents without any Constitutional or statutory authority for the proposition that

a jurisdictional defect can be cured by procedural default.” We decline his invitation to revisit

the issue. Id. at *3 (declining invitation to reconsider transfer order issue for the same reasons).

We overrule appellant’s second issue.

                                            Conclusion

       Having overruled appellant’s issues, the judgment of the trial court is affirmed.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O’NEILL
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47

130876F.U05



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                                       S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JON PAUL GOFF, Appellant                            On Appeal from the 291st Judicial District
                                                    Court, Dallas County, Texas
No. 05-13-00876-CR        V.                        Trial Court Cause No. F-0918879-U.
                                                    Opinion delivered by Justice O’Neill.
THE STATE OF TEXAS, Appellee                        Justices Myers and Brown participating.

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


Judgment entered this 22nd day of January, 2014.




                                                   /Michael J. O'Neill/
                                                   MICHAEL J. O'NEILL
                                                   JUSTICE




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