                          NUMBER 13-18-00210-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                         Appellant,

                                               v.

REYNALDO MARTINEZ JR.,                                                        Appellee.


               On appeal from the County Court at Law No. 2
                        of Victoria County, Texas.


                        MEMORANDUM OPINION
             Before Justices Benavides, Hinojosa, and Perkes
               Memorandum Opinion by Justice Benavides

      By five issues, which we address as two, appellant, the State argues the trial court

erred by granting a motion to dismiss with prejudice in favor of appellee Reynaldo

Martinez, Jr. The State alleges the trial court incorrectly found a speedy trial violation.

We affirm.
                                        I.      BACKGROUND

        Martinez was charged by complaint for theft of property, a class A misdemeanor,

on June 28, 2016. See TEX. PENAL CODE ANN. § 31.03(e)(3). On January 18, 2017, the

State dismissed the complaint stating there “appeared to be a mistake of fact.” On March

8, 2017, the State refiled the complaint for theft. See id.

        At a pre-trial hearing on March 20, 2018, both sides announced ready for trial. On

March 26, 2018, the day the trial was set to commence, the State announced not ready

for trial and indicated it would be dismissing the complaint due to a defect in the charging

language. The State notified the trial court that it would re-file charges against Martinez

for theft. See id. Following the State’s announcement, Martinez made an oral objection

and asked that the dismissal be with prejudice. Martinez alleged that the State had failed

to turn over exculpatory evidence1 and had violated his right to a speedy trial. The trial

court heard arguments from both Martinez and the State, asked for supplemental briefing,

and took the case under advisement.               On April 11, 2018, the trial court sustained

Martinez’s objection and dismissed the case with prejudice. The order of dismissal

included the following findings:

        That the Defendant asserted his right to a speedy trial, the delay before the
        setting of another trial would be uncommonly long after a refiling of this
        cause, the State is more to blame for the delay, and the Defendant would
        suffer prejudice as the delay’s result;

        That the Defendant’s Constitutional rights would be violated including, but
        not limited to, his right to a speedy trial under the Sixth Amendment of the
        1   On appeal, the State raised two issues regarding an alleged Brady violation as argued in the
trial court. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Martinez’s appellate counsel agrees in his
brief that there was no Brady violation as the case had not yet gone to trial. Therefore, we need not
address the State’s issues two, three, and four as they are not dispositive. See TEX. R. APP. P. 47.1; see
generally TEX. CODE CRIM. PROC. ANN. art. 39.14.

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        Constitution of the United States, due process rights and due course of law
        rights;

        That the Defendant would further suffer harm as a result of multiple arrests
        and further proceedings.

The State appealed.2

                                   II.     SPEEDY TRIAL VIOLATION

        By its first and fifth issue, the State argues the trial court committed error by finding

Martinez’s right to a speedy trial had been violated and by dismissing his case with

prejudice.

        A.      Standard of Review and Applicable Law

        “The Sixth Amendment of the United States Constitution, made applicable to the

States through the Fourteenth Amendment, guarantees a speedy trial to an accused.”

Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014).                           In “determining

whether an accused has been denied his right to a speedy trial, a court must use a

balancing test ‘in which the conduct of both the prosecution and the defendant are

weighed.’” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003) (quoting Barker

v. Wingo, 407 U.S. 514, 530 (1972)). The factors to be weighed include, but are not

necessarily limited to, the length of the delay, the reason for the delay, the defendant’s

assertion of his speedy trial right, and the prejudice to the defendant resulting from the

delay. Id. No single factor is necessary or sufficient to establish a violation of the right

to a speedy trial. Id. However, if the defendant can make a threshold holding that the

interval between accusation and trial is “presumptively prejudicial,” then a court must


        2  The State’s right to appeal certain situations, including the dismissal of an indictment, is found
in the Texas Code of Criminal Procedure article 44.01. See TEX. CODE CRIM. PROC. ANN. art. 44.01.
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consider each of the remaining Barker factors and weigh them. Balderas v. State, 517

S.W.3d 756, 767 (Tex. Crim. App. 2016).

       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. Id. at 767–68. 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. Id. at 768. However, “although a reviewing court may

be required to accord great deference to the ruling of a trial court granting a mistrial, that

trial court’s ruling is not insulated from appellate review.” Pierson v. State, 426 S.W.3d

763, 774 (Tex. Crim. App. 2014). If a violation of the speedy trial right is established, the

only possible remedy is dismissal of the prosecution. Dragoo, 96 S.W.3d at 313.

       B.     Discussion

       1.     Length of the Delay

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

defendant is arrested or formally charged. Id. The length of the delay is, to some

extent, a triggering mechanism, so that a speedy trial claim will not even be heard until

passage of a period of time that is, on its face, unreasonable in the circumstances. Id.

(citing Doggett v. United States, 505 U.S. 647, 651–52 (1992)). “If the ‘accused makes

this showing, the court must then consider, as one factor among several, the extent to

which the delay stretches beyond the bare minimum needed to trigger judicial

examination of the claim.’” Id. at 314 (quoting Doggett, 505 U.S. at 652). In general,


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courts deem a delay approaching one year to be “unreasonable enough to trigger the

Barker [i]nquiry.” Doggett, 505 U.S. at 652. Any speedy trial analysis depends first

upon whether the delay is more than “ordinary,”; if so, the longer the delay beyond what

is ordinary, the more prejudicial that delay is to the defendant. Zamorano v. State, 84

S.W.3d 643, 649 (Tex. Crim. App. 2002) (en banc).

       Although the underlying offense occurred on December 12, 2015, Martinez was

arrested on that day for public intoxication, not theft of property. See TEX. PENAL CODE

ANN. §§ 31.03, 49.02. The State’s first criminal complaint was signed on June 28, 2016,

and Martinez was arrested for theft for the first time on June 29, 2016. The date of the

State’s second motion to dismiss was March 26, 2018. A period of twenty-one months

is beyond the one-year standard that is considered “unreasonable enough to trigger the

Barker” analysis. See Dragoo, 96 S.W.3d at 314. This factor weighs heavily in favor of

finding a violation of speedy trial. See id.

       2.     Reason for the Delay

       When looking at the second Barker factor, the trial court must consider whether

the justification given by the State means that “different weights should be assigned to

different reasons.” Barker, 407 U.S. at 531; see Dragoo, 96 S.W.3d at 314. Some

reasons are valid and “serve to justify appropriate delay.” Barker, 407 U.S. at 531. We

consider “whether the government or the criminal defendant is more to blame for th[e]

delay.” Balderas, 517 S.W.3d at 768 (quoting Doggett, 505 U.S. at 651). Deliberate

delay intended to “hamper the defense” weighs heavily against the State, while more

neutral reasons, such as negligence or overcrowded courts, weigh less heavily.       Id.


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(quoting Vermont v. Brillon, 556 U.S. 81, 90 (2009)).       Delay caused by either the

defendant or his counsel weighs against the defendant.       Id. “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 State filed its first complaint against Martinez on June 30, 2016. There was

a pre-trial hearing in November 2016 that was cancelled because defense counsel was

unavailable. The first court hearing was on January 18, 2017, where the State filed its

first motion to dismiss. The State filed its second complaint on March 3, 2017. At a

hearing on June 10, 2017, the trial court reset the case for December 5, 2017. On

December 5, 2017, the trial court again reset Martinez’s case, at the request of his

counsel, for March 20, 2018.      On March 20, 2018, both sides were present and

announced ready for trial. On March 26, 2018, the State presented the trial court with

its motion to dismiss.

       Martinez’s counsel requested one continuance.        The lengthy period of time

between court settings appears to be due to the trial court’s docket; therefore, we do not

presume a deliberate attempt on the part of the State to prejudice the defense nor a valid

reason for the delay. See id. However, the fact that the State filed two complaints, and

chose to dismiss both complaints and re-file another case against Martinez is relevant to

the delay analysis. The State’s first dismissal stated there was an “apparent mistake of

fact.” The second dismissal was due to the State telling Martinez’s counsel that he could

not prove the allegations. The difference between the two complaints was merely the


                                            6
addition of the complainant’s address. The State’s dismissal and re-filing of complaints

led to the delay in this case. See State v. Lopez, 563 S.W.3d 409, 423 (Tex. App.—San

Antonio 2018, pet. ref’d) (stating that the trial court could make reasonable inferences

when the State kept the defendant incarcerated while deciding what charge to pursue).

Therefore, we find that the State’s actions could have prejudiced the defense and did not

offer a valid reason for the delay. See id. This factor weighs heavily in favor of finding

a violation of speedy trial. See id.

       3.     Martinez’s Assertion of the Right

       The third Barker factor—the defendant’s assertion of his right to a speedy trial—is

entitled to strong evidentiary weight in determining whether the defendant has been

deprived of that right. Balderas, 517 S.W.3d at 771. A defendant’s lack of a timely

demand for a speedy trial indicates strongly that he did not really want one and instead,

sought the benefit of a dismissal. Id. The longer the delay becomes, the more likely a

defendant who wished a speedy trial occurred would “take some action to obtain it.”

Dragoo, 96 S.W.3d at 314. However, whether and how a defendant asserts his speedy

trial right is closely related to the other three factors because the strength of his efforts

will be shaped by them. Zamorano, 84 S.W.3d at 651.

       In some cases, a defendant would request a dismissal based on a speedy trial

violation; this case is different. Here, the State requested the dismissal; Martinez only

asked that it be with prejudice.       Martinez was responsible for one continuance.

Although the trial court’s docket seemed to be partially responsible for the delay between

the filing of the complaint and a trial date, the real delay between the date of Martinez’s


                                             7
first arrest was the State filing and dismissing multiple complaints. The State indicated

in asking for the second motion to dismiss that it intended to dismiss and file a third

complaint against Martinez for the same 2015 theft allegation. Although Martinez did not

assert his right to a speedy trial before asking for a dismissal, this situation is unusual.

Martinez asked the trial court to grant the motion to dismiss with prejudice, so the State

could not continue to dismiss and re-file the complaint. Therefore, this factor weighs

slightly against the finding of a violation of speedy trial. See id.

       4.     Prejudice to Martinez Resulting from the Delay

       The fourth Barker factor focuses on prejudice to the defendant because of the

length of delay. Balderas, 517 S.W.3d at 772. To analyze prejudice, we consider three

interests of defendants that the Speedy Trial Clause was designed to protect:            (1)

preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern for

the accused; and (3) limiting the possibility that the defense will be impaired. Id. (citing

Gonzales, 435 S.W.3d at 812). The last interest is the most important because the

fairness of the criminal justice system is distorted when a defendant is unable to

adequately prepare his defense.        Id.   A defendant has the burden to make some

showing of prejudice, but a showing of actual prejudice is not required. Id. Excessive

delay presumptively compromises the reliability of a trial in ways that neither party can

prove or identify. Id.

       Although arrested multiple times stemming from this incident, Martinez was out on

bond as he awaited trial on both complaints. Martinez’s trial counsel was sworn in and

described how re-filing would prejudice his client. The theft arose from a party which


                                              8
occurred in December 2015. Defendant, although out on bond, was required to report

to court every setting. Once the first complaint was dismissed, Martinez was arrested a

second time based on the second complaint and was processed by the jail. The State

notified Martinez’s counsel that it intended to do the same thing a third time. Martinez’s

counsel explained Martinez had a job that he kept having to miss to attend court settings;

each time the State dismissed and re-filed, the requirement to attend started over again.

The trial court included this scenario in its findings stating, “Defendant would further suffer

harm as a result of multiple arrests and further proceedings.” Additionally, a trial setting

in late 2018 was almost three years since the alleged theft occurred. A delay of that

magnitude could prejudice Martinez’s defense.          Since the State did not challenge

Martinez’s counsel’s testimony, it can be considered “some evidence” that the Supreme

Court considers under the prejudice prong of Barker. Zamorano, 84 S.W.3d at 654.

Although there was not substantial testimony regarding this factor, there was enough

evidence to determine it weighs in favor of the speedy trial violation.

       5.     Balancing Test

       Having addressed the four Barker factors, we must now balance them. See id. at

773. “Courts must apply the Barker balancing test with common sense and sensitivity to

ensure that charges are dismissed only when the evidence shows that a defendant’s

actual and asserted interest in a speedy trial has been infringed.” Cantu v. State, 253

S.W.3d 273, 281 (Tex. Crim. App. 2008). Weighing in favor of finding a violation of

Martinez’s speedy trial are the length, reasons, and prejudice for the delay.             See

Balderas, 517 S.W.3d at 773. Weighing slightly against the finding of a violation of


                                              9
speedy trial is Martinez’s request for a dismissal with prejudice. Because the State’s

negligence caused a delay of over twenty-one months with the filing, refiling, and

dismissal of multiple complaints and it did not rebut, explain, or minimize the presumption

of prejudice, Martinez is entitled to relief. See Zamorano, 84 S.W.3d at 655. Even if

Martinez’s actual prejudice was minimal, “condoning, prolonged and justifiable delays in

prosecution would both penalize many defendants for the state’s fault and simply

encourage the government to gamble with the interests of criminal suspects assigned a

low prosecutorial priority.” Id. Based on the facts of this case, we hold that the overall

weight of the four factors, balanced together, demonstrate a speedy trial violation. We

overrule the State’s first and fifth issue.

                                      III.    CONCLUSION

       We affirm the trial court’s judgment.


                                                               GINA M. BENAVIDES,
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
22nd day of August, 2019.




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