i          i      i                                                                             i        i       i




                                    MEMORANDUM OPINION

                                             No. 04-07-00731-CR

                                          Gabriel Riojas BERNAL,
                                                  Appellant

                                                        v.

                                            The STATE of Texas,
                                                  Appellee

                      From the 38th Judicial District Court, Medina County, Texas
                                    Trial Court No. 03-12-9069-CR
                               Honorable Mark Luitjen, Judge Presiding1

Opinion by:       Alma L. López, Chief Justice

Sitting:          Alma L. López, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: July 9, 2008

AFFIRMED

           Gabriel Riojas Bernal pled guilty to murder and was sentenced to life in prison. On appeal,

Bernal challenges the trial court’s denial of his motion to set aside the indictment because the State

failed to afford him a speedy trial. We affirm the trial court’s judgment.




           1
          The Honorable Mickey R. Pennington presided over the hearing on the motion to set aside the indictment and
denied the motion. The Honorable Mark Luitjen presided over the plea proceeding and signed the judgment.
                                                                                        04-07-00731-CR

                                           BACKGROUND

       Bernal was arrested for capital murder on July 29, 2003. On November 6, 2003, Bernal filed

an application for writ of habeas corpus seeking release because of delay and for lack of probable

cause. Bernal was indicted on December 19, 2003. The only issue presented at the hearing on

Bernal’s application for habeas corpus was a request for a bond reduction. The trial court granted

this request and reduced Bernal’s bond.

       On August 5, 2005, Bernal filed a second application for writ of habeas corpus requesting

that he be released on personal bond or have his bail reduced. A hearing was held on the application,

and Bernal’s bond was again reduced.

       On May 17, 2007, Bernal filed a motion requesting a continuance due to conflicts in his

attorney’s schedule. On June 5, 2007, Bernal filed a second motion for continuance again based on

the unavailability of defense counsel. On June 14, 2007, Bernal filed a motion to set aside the

indictment based on the State’s failure to afford Bernal a speedy trial. The trial court denied the

motion at a pre-trial hearing on June 20, 2007. On August 21, 2007, Bernal pled guilty to the offense

of murder and was sentenced to life in prison in accordance with a plea bargain agreement.

                                             DISCUSSION

       “In determining whether a criminal defendant has been denied his federal or state

constitutional right to a speedy trial, a court must use a balancing test in which the conduct of both

the State and the defendant are weighed.” Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App.

2003). The factors to be weighed in the balance include, but are not necessarily limited to: (1) the

length of the delay; (2) reasons for the delay; (3) the defendant’s assertion of his speedy trial right;

and (4) the prejudice to the defendant resulting from the delay. Id. at 888-89. In conducting a



                                                  -2-
                                                                                          04-07-00731-CR

speedy trial analysis, we review legal issues de novo but give deference to a trial court’s resolution

of factual issues. Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005). In addition to

deferring to the trial court’s resolution of disputed facts, we also defer to the trial court’s drawing

of reasonable inferences from the facts because the trial judge’s personal knowledge of the parties

and the sequence of events place him in a better position to draw inferences than an appellate court

without such familiarity. Id.

1.      Length of Delay

        The first factor, the length of the delay, is measured from the time the defendant is arrested

or formally accused. Shaw, 117 S.W.3d at 889. In general, delay approaching one year is sufficient

to trigger a speedy trial inquiry. Id. In this case, Bernal was arrested in July of 2003 and his pre-trial

hearing was not held until June of 2007, a delay of 48 months. This delay is sufficient to trigger a

speedy trial inquiry, and this factor weighs heavily in favor of finding a violation of Bernal’s right

to a speedy trial. See id.

2.      Reason for the Delay

        The State bears the initial burden of justifying the delay. Marquez v. State, 165 S.W.3d 741,

748 (Tex. App.—San Antonio 2005, pet. ref’d). In assessing the reasons the State offers to justify

the delay, different weights must be assigned to different reasons. Shaw, 117 S.W.3d at 889. A

deliberate attempt to delay a trial is weighed heavily against the State, while more neutral reasons,

such as negligence or overcrowded dockets, are weighed less heavily. Marquez, 165 S.W.3d at 748.

If the record is silent regarding the reason for the delay, we presume neither a deliberate attempt by

the State to prejudice the defense, nor a valid reason for the delay. Id.




                                                   -3-
                                                                                            04-07-00731-CR

        The clerk’s record in this case does not contain much information regarding the reason for

the delay until the continuances were sought in May and June of 2007. At the hearing, however, the

State explained:

        As the court knows this is a four defendant capital case. It has preceded [sic] at the
        court’s direction. And I’m sorry I don’t recall the other man’s name, but it was a
        capital murder trial here sometime back. It was concluded here in this county. There
        was a discussion about these being set after that. Mr. Bernal is the first of four. We
        have delayed this case several times since last year at defense counsel’s request or a
        lack of setting.

As previously noted, the trial court is permitted to draw inferences from the facts and to rely on his

personal knowledge of the parties and the sequence of events. Kelly, 163 S.W.3d at 726-27.

Although no testimony may be presented with regard to plea negotiations, the trial court may infer

they existed from the circumstances. Id.

        The State’s reference to discussions regarding the trial being set after another capital murder

trial permitted the trial court to infer that an agreement existed at some point to delay the trial setting.

The trial court could have inferred that such an agreement was a strategy being used in plea

negotiations. The trial court also could have considered that a capital murder charge involving four

defendants required additional time to prepare for trial. Because the ultimate responsibility for a 48

month delay must rest with the State, this factor likely weighs somewhat against the State, but not

very heavily. Marquez, 165 S.W.3d at 748-49.

3.      Assertion of the Right

        A defendant is responsible for asserting or demanding his right to a speedy trial. Marquez,

165 S.W.3d at 749. Failure to seek a speedy trial makes it difficult for a defendant to prevail on a

speedy trial claim. Shaw, 117 S.W.3d at 890. “This is so because 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


                                                    -4-
                                                                                        04-07-00731-CR

not prejudiced by not having one.” Id. “Furthermore, the longer the delay [lasts], 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. Id.

Finally, a defendant who seeks a dismissal as opposed to a speedy trial attenuates the strength of his

speedy trial claim. Id. In this case, although Bernal twice sought a reduction in bond, he never

asserted his right to a speedy trial and only sought dismissal of the indictment 48 months after his

arrest and on the eve of his trial setting. This factor weighs heavily against finding a violation of

Bernal’s right to a speedy trial. See id.

4.     Prejudice to the Defendant Resulting from the Delay

       Prejudice to the defendant is assessed in light of the interests which the speedy trial right was

intended to protect: (1) preventing oppressive incarceration; (2) minimizing the anxiety and concern

of the accused; and (3) limiting the possibility that the defense will be impaired. Shaw, 117 S.W.3d

at 890; Marquez, 165 S.W.3d at 749. The defendant has the burden to make some showing of

prejudice. Marquez, 165 S.W.3d at 749. To show his defense was impaired based on the

unavailability of defense witnesses, the defendant must show witnesses were unavailable, their

testimony would have been relevant, and he used due diligence to locate the witnesses. Id. at 750.

To show prejudice based on the dimming memories of the State’s witnesses, the defendant must

show that the lapses of memory are in some way significant to the outcome of the case. Id.

Although an excessive delay presumptively compromises the reliability of a trial in ways that neither

party can prove or even identify, this presumption is extenuated by the defendant’s acquiescence in

the delay. Shaw, 117 S.W.3d at 890.




                                                  -5-
                                                                                        04-07-00731-CR

       Although Bernal testified that the accusation against him had caused him substantial anxiety

and concern and Bernal had been incarcerated for 48 months, Bernal made no showing that his

defense would be impaired by the delay. Moreover, Bernal’s acquiescence in the delay extenuates

any presumed prejudice. See id. Therefore, although Bernal presented some evidence that the delay

caused him some anxiety, any prejudice Bernal suffered as a result of the delay was minimal, and

this factor weighs against him. See Marquez, 165 S.W.3d at 750.

5.     Balancing the Factors

       Although the excessive delay weighs heavily in favor of finding a violation, Bernal’s failure

to assert his right weighs heavily against such a finding as does his request for a dismissal as opposed

to a speedy trial. Furthermore, the record provides some evidence of a reason for the delay so this

factor does not weigh heavily in favor of a violation. Finally, although Bernal testified that he was

anxious, he presented no evidence that his defense was impaired. Therefore, balancing all of the

factors, the trial court did not err in denying Bernal’s motion.

                                            CONCLUSION

       The trial court’s judgment is affirmed.

                                                               Alma L. López, Chief Justice



DO NOT PUBLISH




                                                  -6-
