                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION

                               Nos. 04-18-00478-CR & 04-18-00479-CR

                                         The STATE of Texas,
                                              Appellant

                                                   v.

                                         Miguel MELENDEZ,
                                               Appellee

                     From the 451st Judicial District Court, Kendall County, Texas
                                    Trial Court Nos. 6467 & 6468
                               Honorable Bill Palmer, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: August 14, 2019

AFFIRMED

           The State appeals the trial court’s orders dismissing two indictments charging Miguel

Melendez with burglary of a habitation. The record supports the trial court’s conclusion that

Melendez’s right to a speedy trial was violated. We therefore affirm the trial court’s orders.

                                             BACKGROUND

           Because these appeals concern the timeline of facts and trial court proceedings, we set out

the timeline of events in these cases:
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      On November 24, 2014, Melendez allegedly went to a residence, entered without
       the effective consent of the owners, and committed or attempted to commit
       aggravated assault with “a wooden rod.”

      On December 2, 2014, Melendez was arrested and released on a $75,000 bond.

      In February 2016, a material defense witness, who was one of the residents at the
       house on the night of the alleged burglary, died.

      On October 10, 2017, almost three years after Melendez was arrested, a grand jury
       charged Melendez in two indictments with burglary of a habitation. Both
       indictments alleged the same incident, but each alleged a different owner of the
       residence.

      On November 22, 2017, Melendez surrendered to authorities pursuant to a capias,
       and he posted an additional $30,000 bond.

      In December 2017 and January 2018, status hearings in the cases were reset, once
       without explanation and once because counsel was “called to federal court.”

      On January 24, 2018, Melendez filed motions to dismiss on speedy trial grounds
       and a motion to quash the indictments on double jeopardy grounds.

      The status hearings were reset three more times. Melendez’s attorney signed each
       of these notices, and the State’s attorney did not. The record does not indicate
       whether the hearings were reset upon either party’s request.

      On June 7, 2018, the parties were notified a pretrial hearing was set for June 21,
       2018.

      On June 21, 2018, the State filed motions for leave to amend the indictments, and
       the trial court heard Melendez’s motions, granted Melendez’s speedy trial motions,
       and signed orders dismissing the indictments.

The State timely appealed both orders of dismissal. This court consolidated the appeals for briefing

and disposition. The State’s two issues are that the trial court erred by dismissing the indictments

against Melendez on speedy trial and due process grounds.

                                 THE RIGHT TO A SPEEDY TRIAL

       A person accused of a criminal offense has the right to a speedy trial. Hopper v. State, 520

S.W.3d 915, 923 (Tex. Crim. App. 2017). When the right to a speedy trial “has been deprived,” a

dismissal of the charging instrument is the “only possible remedy.” Barker v. Wingo, 407 U.S.


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514, 522 (1972). To determine whether the accused has been deprived of his right to a speedy trial,

courts apply four factors set out in Barker: “(1) the length of delay, (2) the reasons for delay, (3)

the defendant’s assertion of the right, and (4) prejudice to the defendant.” Hopper, 520 S.W.3d at

918. “No one factor possesses ‘talismanic qualities,’ thus courts must ‘engage in a difficult and

sensitive balancing process’ in each individual case.” Zamorano v. State, 84 S.W.3d 643, 648 (Tex.

Crim. App. 2002) (quoting Barker, 407 U.S. at 533).

       In reviewing a dismissal on speedy trial grounds, we apply a bifurcated standard of review.

Id. “When reviewing the trial court’s application of the Barker test, we give almost total deference

to the trial court’s historical findings of fact that the record supports, and we draw reasonable

inferences from those facts necessary to support the trial court’s findings.” Balderas v. State, 517

S.W.3d 756, 767–68 (Tex. Crim. App. 2016). “An appellate court reviewing a trial court’s ruling

on a motion to dismiss for want of a speedy trial must do so in light of the arguments, information,

and evidence that was available to the trial court at the time it ruled.” Shaw v. State, 117 S.W.3d

883, 889 (Tex. Crim. App. 2003).

       “Review of the individual Barker factors necessarily involves fact determinations and legal

conclusions, but the balancing test as a whole is a purely legal question that we review de novo.”

Balderas, 517 S.W.3d at 768. Because Melendez prevailed on his speedy trial claim, “we presume

the trial court resolved any disputed fact issues in his favor.” See State v. Ritter, 531 S.W.3d 366,

371 (Tex. App.—Texarkana 2017, no pet.) (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex.

Crim. App. 1999)). When, as here, the State did not request, and the trial court did not make,

findings of fact and conclusions of law, we will imply all findings necessary to support the trial

court’s ruling if those findings are supported by the record. Id.




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A. Length of the Delay

       The first factor we consider is whether the length of the delay is presumptively prejudicial

to trigger an analysis of the remaining factors. Barker, 407 U.S. at 530; Hopper, 520 S.W.3d at

924. The length of delay is measured from the time the defendant is arrested or formally accused,

whichever is first, until the trial or the defendant asserts his right to a speedy trial. Zamarripa v.

State, 573 S.W.3d 514 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

       The length of the time from the day Melendez was arrested, December 2, 2014, until he

asserted his right to a speedy trial at the June 21, 2018 pretrial hearing, was forty-two months and

nineteen days. In its brief, “the State admits that the delay is presumptively improper and that

further speedy-trial analysis is necessary.” See Doggett v. United States, 505 U.S. 647, 652 n.1

(1992) (noting a one-year delay is presumptively prejudicial); Shaw, 117 S.W.3d at 888–89 (same).

That being said, we proceed to analyzing the remaining three Barker factors.

B. Reasons for Delay

       “The burden of justifying the delay is on the State.” Voda v. State, 545 S.W.3d 734, 742

(Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing Cantu v. State, 253 S.W.3d 273, 280 (Tex.

Crim. App. 2008)). “In evaluating the State’s reason for the delay, we assign different weights for

different reasons. Valid reasons for delay do not weigh against the State, whereas bad-faith delays

weigh heavily against the State.” Id. (internal citations omitted). “A more neutral reason, such as

negligence, will weigh less heavily against the State.” Id. A deliberate attempt to delay the trial in

order to hamper the defense should be weighed heavily against the government. Zamorano, 84

S.W.3d at 649. Neutral reasons, such as negligence or overcrowded courts, weigh against the State,

although less heavily, because the responsibility for such circumstances rests with the government,

not the defendant. Barker, 407 U.S. at 531. Although such reasons are “neutral,” they are

nevertheless “unacceptable reasons for delaying a criminal prosecution.” Doggett, 505 U.S. at 657.


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       At the hearing on Melendez’s speedy trial motions, the State provided three reasons for the

delay. First, the State explained there was a delay with the police department in investigating and

preparing a proper offense report. The prosecutor represented to the trial court:

           I can tell the Court as an officer of the Court that it appears to me that this [case]
       was initially submitted to what at the time was the 216th District Attorney’s office
       in about May of 2016. It appears to me that it was reviewed and sent back because
       they did not like the way that it had been charged by the police department and
       were asking for additional evidence.

Second, the State explained, “[A]s the Court is well aware, in January of 2017, the 451st Court

and District Attorney’s office were created. And we inherited approximately six banker’s boxes

worth of cases.” The State denied the delay was in bad faith. Third, the State argued Melendez had

acquiesced to resetting the hearings.

       The State provided no explanation for the delay from the date of Melendez’s arrest,

December 2, 2014, to May 2016, when the case was “initially submitted to . . . 216th District

Attorney’s office.” The State therefore did not satisfy its burden to justify this presumptively

prejudicial year-and-a-half delay. This delay weighs against the State. See Rivera v. State, 990

S.W.2d 882, 889 (Tex. App.—Austin 1999, pet. ref’d) (“[I]f the record is silent or the reasons

given are insufficient to excuse the delay, the appellate court must presume that no valid reason

for delay existed.”).

       The State explained the reason for the delay from May 2016 to January 2017 was not due

to bad faith, but to inadequate policework. Inadequate policework is a neutral, yet unacceptable

reason for a delay that weighs against the State. See Doggett, 505 U.S. at 657; accord Luke v. State,

No. 05-02-01543-CR, 2003 WL 1994850, at *2 (Tex. App.—Dallas May 1, 2003, no pet.) (not

designated for publication); Sims v. State, No. 08-00-00067-CR, 2001 WL 85156, at *2 (Tex.

App.—El Paso Feb. 1, 2001, no pet.) (not designated for publication).




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        The State explained the reason for the delay from January 2017 to October 10, 2017, the

day Melendez was indicted, was a caseload caused by the creation of a new district court and

district attorney’s office. It is unclear why the creation of a new district court and district attorney’s

office, which are efforts to reduce backlog and the burden on existing courts and prosecuting

authorities, justifies a delay. On appeal, the State seeks to clarify, presenting new and different

information not presented to the trial court. We may not consider the information the State presents

for the first time on appeal. See Shaw, 117 S.W.3d at 889. Nevertheless, such a backlog is an issue

of “overcrowded courts,” which is a neutral, yet unacceptable reason that weighs against the State

because the ultimate responsibility for such circumstances rests with the government, not the

defendant. See Doggett, 505 U.S. at 657; Zamorano, 84 S.W.3d at 649.

        The State claims the delay from the date of the indictments, October 10, 2017, to the date

of the speedy trial hearing, July 21, 2018, weighs against Melendez. The State argues this delay

was due to Melendez “agree[ing] to resets for another five months when the State did not.”

Although the record does not support that Melendez requested the resets, the record shows, at the

very least, that Melendez acquiesced to the resets. “[A]cquiescence in further delay . . . weighs

against finding a violation” of a defendant’s right to a speedy trial. Zamarripa, 573 S.W.3d at 525.1

        In sum, the unexplained delay from December 2, 2014, to May 2016, weighs against the

State. The delay due to the neutral reasons such as inadequate police work and docket

overcrowding—from May 2016, to October 10, 2017—weighs against the State slightly. Because

Melendez acquiesced to resetting the case, the delay from October 2017 to June 2018 weighs


1
  We also note Melendez had moved to quash the indictments because they charged him for the same alleged burglary
in violation of his rights under the Double Jeopardy Clause. The State had filed a motion to amend the indictments,
and the trial court determined at the June 21, 2018 pretrial hearing that Melendez would need to be re-indicted. In
State v. Lopez, this court considered an inevitable future delay caused by such negligence as weighing against the
State. 563 S.W.3d 409, 423–24 (Tex. App.—San Antonio 2018, pet. granted). Because the Court of Criminal Appeals
has granted review, and an issue is whether courts may consider inevitable future delays in analyzing a speedy trial
claim, we note this inevitable future delay, but we do not consider it in our analysis.


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against Melendez for that period of time. See id. In its brief, the State all but admits that the pre-

indictment reasons for the delay weigh against the State, but not heavily because there is no bad

faith. We agree, and conclude this factor weighs against the State.

C. Assertion of the Right

        We next must consider whether Melendez asserted his right to a speedy trial. Barker, 407

U.S. at 530; Hopper, 520 S.W.3d at 924. Generally, the assertion-of-the-right factor concerns

whether a defendant asserted his right to a speedy trial in the trial court as opposed to the first time

on appeal. See Barker, 407 U.S. at 531-32. “Of course, the defendant has no duty to bring himself

to trial; that is the State’s duty.” Zamorano, 84 S.W.3d at 651. “This does not mean that the

defendant has no responsibility to assert his right to a speedy trial.” Id. “[T]he defendant’s assertion

of his speedy trial right is entitled to strong evidentiary weight in determining whether the

defendant is being deprived of the right.” Id.

        The State argues the Court of Criminal Appeals has noted requesting a dismissal instead

of a speedy trial undermines the weight of a defendant’s assertion of his right to a speedy trial.

Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. [Panel Op.] 1983). “This is not to say,

however, that asking only for dismissal will result in a ‘waiver,’” of a speedy trial claim.” Id. “In

some cases, defense counsel may legitimately feel that a long delay has caused a client so much

prejudice that dismissal is warranted, even if the State is belatedly ready to move promptly.” Id.

“Each case must turn on its own facts, and the particular relief a defendant seeks is but one fact to

consider.” Id. We also consider whether there is anything “to suggest that appellant deliberately

failed to move for a speedy trial because of tactical reasons.” See id. (citing Barker, 407 U.S. at

534-36); accord Cantu, 253 S.W.3d at 283.

        Here, Melendez asserted his right to a speedy trial in the trial court by filing his speedy

trial motion and raising the issue at the June 21, 2018 pretrial hearing. Melendez’s assertion of his


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speedy trial right “is entitled to strong evidentiary weight.” See Zamorano, 84 S.W.3d at 651. The

State suggests the weight of Melendez’s assertion of his right is weakened because Melendez

requested dismissal instead of a speedy trial. See Cantu, 253 S.W.3d at 283. Although the Court

of Criminal Appeals has noted this can be a consideration in some cases, the weight we must give

to Melendez’s assertion of his right to a speedy trial is not weakened significantly because

Melendez “ha[d] no duty to bring himself to trial; that [wa]s the State’s duty.” Zamorano, 84

S.W.3d at 651. And, a dismissal of the charging instrument is the “only possible remedy” when

the right to a speedy trial “has been deprived.” Barker, 407 U.S. at 522. Furthermore, it was

undisputed that the indictments were defective. Thus, it would make little sense to impose a strict

requirement on Melendez, in asserting his right to speedy trial, to assist the State proceed to trial

on defective indictments.

       The presumptively prejudicial delay in this case occurred before the indictments. Before

he was indicted, Melendez was not able to file a motion for speedy trial to assert his right. “[O]ne

cannot file a motion for a speedy trial until formal charges are made,” but “the right to [a speedy

trial] can be asserted in other ways” before an indictment is filed, such as inquiring into the status

of the case. Cantu, 253 S.W.3d at 283 & n.47. Melendez’s burden of proof as to the assertion of

his right “varie[d] inversely” with the State’s degree of culpability for the delay in light of the

delay’s protractedness. See id. at 280; Doggett, 505 U.S. at 657 (“[O]ur toleration of such

negligence varies inversely with its protractedness.”). The delay in this case cannot be explained

by the complexity of the nature of the offense. See Barker, 407 U.S. at 531 (“[T]he delay that can

be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy

charge.”). Under the facts of this case, we decline to impose a requirement that, before asserting

his right to a speedy trial had been violated, Melendez was required to encourage the State to

secure indictments against him. Melendez satisfied his burden in the trial court to assert his right


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to a speedy trial had been violated, the only remedy for which the United States Supreme Court

has held is dismissal. See id. at 522. Although Melendez could have asserted his right in other

ways, we disagree with the State that Melendez’s failure to urge the State to expedite efforts to

indict him causes this factor to “weigh[] heavily in favor of the State.”

D. Prejudice to the Defendant

       We assess prejudice to the defendant “in light of the interests the right to a speedy trial was

designed to protect,” including “limiting the possibility that the defense will be impaired.” Hopper,

520 S.W.3d at 924. Impairing the defense is the “most serious” type of prejudice “because the

inability of a defendant adequately to prepare his case skews the fairness of the entire system.”

Barker, 407 U.S. at 532. “[P]roof of actual prejudice is not required when the delay is excessive,

because such a delay ‘presumptively compromises the reliability of a trial in ways that neither

party can prove or even identify.’” Harper v. State, 567 S.W.3d 450, 460 (Tex. App.—Fort Worth

2019, no pet.) (quoting Shaw, 117 S.W.3d at 890). When a defendant makes a prima facie showing

of prejudice, the State has the burden to prove “the accused suffered no serious prejudice beyond

that which ensued from the ordinary and inevitable delay.” Ex parte McKenzie, 491 S.W.2d 122,

123 (Tex. Crim. App. 1973).

       Melendez asserted the prejudice he suffered was the death of a material witness: Duke

Berry. At the pretrial hearing, Melendez identified his defensive theory, which was that Berry gave

him consent to enter the home. See Hopper, 520 S.W.3d at 918, 923 (agreeing with court of

appeals’ reasoning that defendant should identify his defensive theory). Melendez elaborated as to

why Berry was likely to testify he had the authority to give Melendez consent to enter the home.

See id. (agreeing defendant should explain likely substance of lost evidence). Berry had lived at

the house for seven years; there was no sign of forced entry; and Melendez “had always been




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welcomed into that house by Duke Berry; that Duke Berry had, in fact, initiated his coming over

in part that evening and allowed him in the house -- invited him into the house.”

       The State argues this assertion of prejudice is “only based on unsubstantiated assertions

made by defense counsel and not supported by the record.” We reject the State’s argument for

three reasons. First, in the trial court, Melendez offered to put on evidence in support of his

prejudice claim, but the State did not dispute any of the supporting facts advanced by Melendez,

including facts that Berry died during the State’s unexplained delay, there were no signs of forced

entry, and Berry likely would have testified he lived at the residence at the time of the alleged

offenses, had authority to give consent for Melendez to enter the home, invited Melendez into the

home numerous times before, and invited Melendez over on that evening. Second, the State

suggested the trial court should consider counsel’s arguments as factual representations because

the attorneys were making representations, in the prosecutor’s words, as “officer[s] of the Court.”

See Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999). Third, our standard of review

requires us to consider “the arguments, information, and evidence that was available to the trial

court at the time it ruled.” Shaw, 117 S.W.3d at 889. We hold the record supports the trial court’s

implied determination, based on the information and arguments available to the trial court, that

Melendez made a prima facie showing of prejudice. See id. The State does not argue in its brief

that it satisfied its burden in the trial court to prove Melendez “suffered no serious prejudice beyond

that which ensued from the ordinary and inevitable delay.” See McKenzie, 491 S.W.2d at 123; see

also TEX. R. APP. P. 38.1(i).

E. Balancing the Factors

       Although Melendez acquiesced to resetting hearings after he was indicted, the State

provided no explanation for the year-and-a-half delay before it indicted Melendez, during which

time a material defense witness died. The State was responsible for another pre-indictment delay


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that lasted over a year. These delays, although for neutral reasons, were “unacceptable.” See

Doggett, 505 U.S. at 657. In the trial court, Melendez asserted the delay violated his right to a

speedy trial, and his failure to ask the State to secure indictments against him or to bring him to

trial more quickly do not substantially weaken the weight we must give to Melendez’s assertion

of his right in the trial court. See Zamorano, 84 S.W.3d at 651. Furthermore, when he was first

able to request relief from the trial court for a violation of his right to a speedy trial, a material

defense witness had already died. See Doggett, 505 U.S. at 657. The right to a speedy trial is to

limit such a “possibility that the defense will be impaired,” which is the most significant concern

the right to a speedy trial addresses. See Barker, 407 U.S. at 532; Hopper, 520 S.W.3d at 924.

When the right to a speedy trial has been violated, a dismissal of the charging instrument is the

“only possible remedy.” Barker, 407 U.S. at 522.

                                                   CONCLUSION

         We hold the record supports the trial court’s determination that Melendez’s right to a

speedy trial was violated. Because dismissal of the indictments was the “only possible remedy,”

we conclude the trial court did not err by granting Melendez’s motion to dismiss the indictments

on speedy trial grounds. See id. We therefore affirm the trial court’s orders granting Melendez’s

motions and dismissing the indictments against him. 2

                                                           Luz Elena D. Chapa, Justice

DO NOT PUBLISH




2
  In a separate issue, the State argues the trial court’s orders cannot be supported on due process grounds. Because we
agree the speedy trial grounds suffice to support dismissal of the indictments, we do not address the State’s second
issue. See TEX. R. APP. P. 47.1.


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