                              Fourth Court of Appeals
                                     San Antonio, Texas
                                            OPINION
                                        No. 04-11-00405-CR

                                        Lionel GONZALES,
                                             Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 379th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2004CR1992
                              Honorable Ron Rangel, Judge Presiding

                                     OPINION ON REMAND

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: August 21, 2013

REVERSED AND RENDERED

           Lionel Gonzales was charged by indictment on March 17, 2004 with injury to a child and

indecency with a child. He was not arrested until April 21, 2010, and soon thereafter he filed a

motion to dismiss for lack of a speedy trial. The trial court denied Gonzales’s pre-trial motion to

dismiss for lack of a speedy trial. Gonzales pled no contest and was granted deferred adjudication;

he was placed on community supervision for a period of five years. Gonzales subsequently

appealed the trial court’s denial of his motion to dismiss for lack of a speedy trial. We affirmed
                                                                                       04-11-00405-CR


the trial court’s judgment, holding that Gonzales failed to demonstrate how he was prejudiced by

the State’s delay. See Gonzales v. State, No. 04-11-00405-CR, 2012 WL 1364981 (Tex. App.—

San Antonio Apr. 18, 2012) (mem. op., not designated for publication). Thereafter, the Court of

Criminal Appeals reversed our judgment and remanded the case to this court, holding that we

improperly placed the burden on Gonzales to demonstrate prejudice and that, because of the

lengthy delay between Gonzales’s indictment and his arrest, Gonzales was presumptively

prejudiced. Gonzales v. State, No. PD-0724-12, 2013 WL 765575, at *1 (Tex. Crim. App. Feb.

27, 2013) (not designated for publication). The Court of Criminal Appeals therefore instructed us

to review the record “not for proof of prejudice but rather the rebuttal or extenuation of prejudice.”

Id. (citing Doggett v. United States, 505 U.S. 647, 658 (1992)). On remand, we reverse the

judgment of the trial court, and render judgment dismissing the prosecution with prejudice.

                                           BACKGROUND

       On March 17, 2004, Gonzales was charged by indictment with one count of injury to a

child and one count of indecency with a child stemming from an incident alleged to have occurred

on November 27, 2002. Gonzales was not arrested until April 21, 2010. On May 25, 2010,

Gonzales filed a motion to dismiss for lack of speedy trial, arguing that his speedy trial rights under

the federal and state constitutions were violated because of the over six-year delay between

indictment and arrest; Gonzales argued that his defense was impaired because witnesses’

memories were faded due to the passage of time.

       According to a police statement provided by M.C., the complainant, she met Gonzales

through a telephone chat line. On November 26, 2002, she agreed to allow Gonzales to pick her

up and take her to his house. Although M.C. was 14 years old, she told Gonzales that she was 16

years old. Gonzales told her that he was 17 years old; he was actually 21. Gonzales picked M.C.

up in a black Cadillac Escalade driven by an older man whom M.C. later learned was Gonzales’s
                                                 -2-
                                                                                      04-11-00405-CR


father. Once at Gonzales’s house, M.C. and Gonzales went upstairs to his bedroom. They smoked

marijuana. Gonzales tried to kiss and touch M.C., and she pushed him away. He told her he was

not going to let her go home unless he got “something,” which M.C. took to mean that Gonzales

wanted to have sex. Gonzales grabbed M.C. and threw her on the bed. When she refused his

advances, Gonzales became angry and punched M.C. in the mouth. She began to yell, and

Gonzales covered her mouth with his hands. At that time, Gonzales’s parents entered the room.

Gonzales’s mother gave her a green towel to stop the bleeding on her mouth. M.C. ran downstairs

and saw another older man. Gonzales’s father asked M.C. why Gonzales had hit her, and she told

him that he was trying to kiss her and feel on her. Gonzales’s father and brother drove M.C. home

and told her not to tell anyone about what had happened. M.C. told her mother, who called the

police.

          Gonzales’s mother gave a statement to police on August 18, 2003. She recalled an incident

the prior November where Gonzales and his father picked up a girl. When they returned, Gonzales

and the girl went upstairs while she and her cousin, Manuel, stayed in the kitchen; her husband

went to take a shower. Within a few seconds, she heard yelling coming from Gonzales’s room.

She and Manuel ran upstairs. She saw that the girl was holding her mouth, and it looked like there

was blood coming from the girl’s nose. Gonzales told his mother that the girl had thrown a cordless

telephone at him, and there was a bruise on his cheek. Mrs. Gonzales stated that her son later had

a black eye. Everyone went downstairs, and Mrs. Gonzales saw that Manuel had given the girl a

washcloth to hold on her mouth. Mr. Gonzales and his other son, “Roger, Jr.,” drove the girl home.

          On July 2, 2010, the trial court held a hearing on Gonzales’s motion to dismiss for lack of

a speedy trial. The only witnesses were Gonzales and his mother. Gonzales testified that he had

no recollection of the evening in question and that he did not even recognize the complainant’s

name. Gonzales admitted that he was placed on probation for a DWI offense in 2001 and was
                                                 -3-
                                                                                      04-11-00405-CR


aware that a motion to revoke was pending since 2003 due to his failure to report; he agreed that

he remained a fugitive on the DWI until he was arrested on April 21, 2010. He acknowledged that

he had not renewed his driver’s license since 2007, but denied that he failed to do so in an attempt

to hide from authorities.

       Gonzales’s mother testified that Gonzales had lived with her and her husband his entire

life, and at the same address for the past eleven years. She and her husband were at home on the

evening in question. Her husband was not available to testify because he had suffered three heart

attacks and was not well. Mrs. Gonzales testified that she “vaguely” recalled the incident giving

rise to the criminal charge against her son. In August 2003, she and her husband were interviewed

by the police concerning the incident. Mrs. Gonzales did not know that a case was going to be

filed against her son; she was only told by the detective that he was gathering information to see

if, in fact, he had a case. She and her husband never heard anything further from the police. Mrs.

Gonzales admitted signing a statement in which she said she saw blood coming from the

complainant’s face, but testified that she was tricked into signing it and that the detective “didn’t

write it right.” In court, Mrs. Gonzales denied seeing any blood, and instead stated that she saw

the complainant covering her face with a bent elbow. After reading her statement, she recalled

some of the events that occurred on the evening in question. She remembered that a girl and her

son were both in the house that night, and agreed that there were some facts that she could testify

to at trial. She also stated that, apart from her sworn statement to police, she did not have any

independent recollection of what happened in November 2002, and that she did not see anything

that would substantiate the charge against her son.

       Ultimately, the trial court denied the motion to dismiss for lack of a speedy trial. The trial

court issued findings of fact and conclusions of law in which it concluded that the first two factors



                                                -4-
                                                                                      04-11-00405-CR


of the Barker 1 test—the length of the delay and the reason for the delay—weighed in Gonzales’s

favor. As to the third factor—the assertion of the right to speedy trial—, the trial court concluded

that at no time during the six-year delay between indictment and arrest did Gonzales assert his

right to a speedy trial. The trial court further concluded that because Gonzales allowed his driver’s

license to expire and because he attempted to evade arrest on April 21, 2010, Gonzales “had some

notion of the outstanding charges [against him] and used the State’s tardiness to his own

advantage.” Additionally, the trial court concluded that Gonzales was aware that officers were

investigating the circumstances surrounding the incident because he would have discussed it with

his parents, with whom he lived, and because he testified that he thought “the cops would come

and talk [to him] if they had any issues.” Finally, as to the fourth factor—prejudice caused by the

delay—, the trial court concluded that Gonzales was not prejudiced by the delay because he

“offered up no facts or evidence other than very unpersuasive testimony of a faded memory that

his defense is somehow impaired.” In weighing the Barker factors, the trial court ultimately

concluded that Gonzales was not denied his right to a speedy trial, and denied the motion to

dismiss.

                                                 DISCUSSION

Right to Speedy Trial

           The Sixth Amendment to the United States Constitution guarantees the accused’s right to

a speedy trial. Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002); Orand v. State,

254 S.W.3d 560, 565 (Tex. App.—Fort Worth 2008, pet. ref’d). Gonzales argues that he was

denied his right to a speedy trial under the federal and state constitutions. See U.S. CONST. amend.

VI, XIV; TEX. CONST. art. I, § 10; see State v. Rangel, 980 S.W.2d 840, 843 (Tex. App.—San



1
    Barker v. Wingo, 407 U.S. 514, 530 (1972).

                                                    -5-
                                                                                       04-11-00405-CR


Antonio 1998, no pet.) (speedy trial inquiry is the same under both United States and Texas

constitutions). In determining whether a defendant’s right to a speedy trial has been violated, we

weigh and balance four factors: (1) length of the delay; (2) reasons for the delay; (3) assertion of

the right; and (4) prejudice to the defendant resulting from the delay. See Barker v. Wingo, 407

U.S. 514, 530 (1972) (creating balancing test for reviewing speedy trial claims under federal

constitution); Cantu v. State, 253 S.W.3d 273, 280 n.16 (Tex. Crim. App. 2008) (although speedy

trial right under Texas Constitution exists independently of federal guarantee, claims of denial of

State speedy trial right are analyzed under same four Barker factors); see also State v. Jones, 168

S.W.3d 339, 346 (Tex. App.—Dallas 2005, pet. ref’d) (applying Barker factors to motion to

dismiss, rather than motion for speedy trial). Once the Barker test is triggered, we analyze the

speedy trial claim by first weighing the strength of the Barker factors and then balancing their

relative weights in light of the conduct of both the prosecution and the defendant. Cantu, 253

S.W.3d at 281. None of the Barker factors is a necessary or sufficient condition to finding a speedy

trial violation. Id. Rather, the factors are related and should be evaluated in conjunction with any

other relevant considerations. Id.

Standard of Review

       We apply a bifurcated standard of review when reviewing a trial court’s decision on a

speedy trial claim. State v. Munoz, 991 S .W.2d 818, 821 (Tex. Crim. App. 1999). We review the

trial court’s determination of historical facts under an abuse of discretion standard, while we

review de novo the trial court’s application of the law to the facts. Id. When, as here, the defendant

does not prevail on a speedy trial claim, we presume the trial court resolved any disputed fact

issues in favor of the State, and we defer to the implied findings of fact supported by the record.

Zamorano, 84 S.W.3d at 648.



                                                 -6-
                                                                                       04-11-00405-CR


Analysis of the Barker Factors

       1. Length of the Delay

       The length of the delay is the triggering mechanism for an analysis under Barker. Barker,

407 U.S. at 530. The length of the delay is measured from the time the defendant is arrested or

formally accused. See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). However, a

delay between indictment and arrest may also be considered.             Doggett, 505 U.S. at 652

(“extraordinary 8 1/2 year lag between Doggett’s indictment and arrest clearly suffices to trigger

the speedy trial enquiry”). Texas courts have generally held that a delay of eight months or more

is “presumptively prejudicial” and will trigger a speedy trial analysis. See Zamorano, 84 S.W.3d

at 649 n.26; see also Orand, 254 S.W.3d at 566 (quoting Doggett, 505 U.S. at 652 n.1)

(“Depending on the nature of the charges, a postaccusation delay of about one year is

‘presumptively prejudicial.’”).

       Here, over six years elapsed between Gonzales’s indictment and his arrest. The State

concedes, and we agree, that this delay is sufficiently lengthy to trigger a speedy trial analysis

under Barker. We conclude this factor must weigh heavily against the State.

       2. Reason for the Delay

       Upon a finding that a presumptively prejudicial delay has occurred, the State bears the

initial burden of justifying the delay. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App.

1994); Rangel, 980 S.W.2d at 843. Different weights are assigned to different reasons for a delay.

Munoz, 991 S.W.2d at 822. 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 against

the State, but less heavily. Id. If the record is silent regarding the reason for the delay, it weighs

against the State, but not heavily because we do not presume either a deliberate attempt by the



                                                 -7-
                                                                                       04-11-00405-CR


State to prejudice the defense or a valid reason for the delay. Dragoo v. State, 96 S.W.3d 308, 314

(Tex. Crim. App. 2003); Zamorano, 84 S.W.3d at 649–50.

       Here, the trial court found that no explanation was offered by the State as to why it took

six years to return the arrest warrant. The record supports the trial court’s finding in that the State

presented no evidence to explain the delay in executing the arrest warrant when Gonzales’s address

was known at all relevant times. Gonzales testified he lived in his parents’ home for the last eleven

years. Although there is nothing in the record to indicate the delay between indictment and arrest

was anything but negligence on the State’s part, the weight assigned to governmental negligence

compounds over time as the presumption of evidentiary prejudice grows. See Doggett, 505 U.S.

at 657; Orand, 254 S.W.3d at 567 (eleven-year, eight-month delay weighed “very, very heavily”

against the State where no explanation was offered for delay between indictment and arrest). Thus,

given the absence of any explanation for the six-year delay, we conclude that this factor weighs

heavily against the State.

       3. Assertion of Right to Speedy Trial

       The third Barker factor that a trial court must consider is the defendant’s assertion of his

right to a speedy trial. Barker, 407 U.S. at 531; Munoz, 991 S.W.2d at 825. A defendant is

responsible for asserting or demanding his right to a speedy trial. Munoz, 991 S.W.2d at 825. A

lengthy delay or lack of persistence in asserting the right attenuates a speedy trial claim. Russell

v. State, 90 S.W.3d 865, 873 (Tex. App.—San Antonio 2002, pet. ref’d). Similarly, a defendant’s

request for dismissal rather than a prompt trial setting may attenuate the strength of his speedy trial

complaint. Rangel, 980 S.W.2d at 844.

       In this case, Gonzales stated he was not aware of the indictment until after his arrest on

April 21, 2010. On May 25, 2010, he filed a motion to dismiss seeking dismissal of the indictment.

“This fact potentially weakens [defendant’s] case, because ‘a dismissal instead of a speedy trial
                                                 -8-
                                                                                       04-11-00405-CR


weakens [a speedy trial] claim because it shows a desire to have no trial instead of a speedy trial.’”

Jones, 168 S.W.3d at 348 (quoting Zamorano, 84 S.W.3d at 651 n.40). However, “[i]n 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.” State v. Guerrero,

110 S.W.3d 155, 161 (Tex. App.—San Antonio 2003, no pet.) (quoting Phillips v. State, 650

S.W.2d 396, 401 (Tex. Crim. App. 1983)). Given Gonzales’s assertion that his defense would be

impaired due to the six-year delay present in this case, we do not believe his speedy trial claim is

undermined solely because he raised it through a motion to dismiss. See Zamorano, 84 S.W.3d at

651 n.40 (motion to dismiss may be a means of alerting the trial court and the State to the delay

and appellant’s lack of acquiescence to it, and not necessarily an attempt to escape trial

completely); Guerrero, 110 S.W.3d at 161 (holding dismissal was appropriate remedy to seek

where speedy trial was no longer in appellant’s best interest due to lost evidence).

       Gonzales’s first opportunity to assert his right to a speedy trial was immediately following

his arrest in April 2010. Prior to that time, Gonzales had no notice that he had been indicted. The

State suggests that because Gonzales knew the incident was under investigation, he should have

known he would be prosecuted and therefore should have come forward to assert his right to a

speedy trial. That argument, however, is unmeritorious. See Guajardo v. State, 999 S.W.2d 566,

570 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (rejecting State’s argument that appellant

should have known she would be prosecuted and concluding third Barker factor weighed heavily

in favor of appellant where appellant filed motion to dismiss two months after being arrested and

State had waited five years to arrest appellant); see also Barker, 407 U.S. at 527 (defendant has no

duty to bring himself to trial). Considering that the State waited over six years after indictment to

arrest Gonzales, his assertion of his right to a speedy trial one month after being arrested is more

than timely. Therefore, this third Barker factor weighs in favor of Gonzales.
                                                 -9-
                                                                                      04-11-00405-CR


          4. Prejudice Caused by the Delay

          Because “pretrial delay is often both inevitable and wholly justifiable,” the fourth Barker

factor examines whether and to what extent the delay has prejudiced the defendant. Cantu, 253

S.W.3d at 285 (quoting Doggett, 505 U.S. at 656 and citing Barker, 407 U.S. at 532). Proof of

actual prejudice, however, is not required in situations where 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.” Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003) (citing Doggett,

505 U.S. at 655). Given the six-year delay present in this case, we must presume the excessive

delay adversely affected Gonzales’s ability to defend himself. See Doggett, 505 U.S. at 655

(holding that delay of eight and one-half years between indictment and arrest was presumptively

prejudicial); Guajardo, 999 S.W.2d at 570 (holding that nearly five-year delay attributable to the

State was presumptively prejudicial); see also Gonzales, 2013 WL 765575, at *1 (six-year delay

between Gonzales’s indictment and his arrest presumptively compromised the reliability of his

trial).

          A defendant who has made a prima facie showing of prejudice will be entitled to relief

unless the presumption of prejudice is (1) persuasively rebutted by the State or (2) extenuated by

the defendant’s acquiescence in the delay. Doggett, 505 U.S. at 658; Gonzales, 2013 WL 765575,

at *1. We have already concluded that Gonzales did not acquiesce in the delay because, as

discussed above, he asserted his rights once he was aware of the indictment against him. See

United States v. Molina-Solorio, 577 F.3d 300, 307 (5th Cir. 2009) (prejudice not extenuated by

defendant’s acquiescence where defendant asserted right to speedy trial once he was aware of

pending charge). Therefore, we must review the record to determine whether the Sate rebutted the

presumptive prejudice caused by the six-year delay.



                                                 - 10 -
                                                                                      04-11-00405-CR


        At the hearing on the motion to dismiss, Gonzales claimed that his defense was impaired

by faded memories, including his own and his parents’. He claimed that his mother had no

independent recollection of the events giving rise to the allegations in the indictment and that his

father, who had suffered a third heart attack since the indictment was filed, was too ill to testify.

On appeal, the State contends that it rebutted these claims of prejudice by (1) convincing the trial

court that Gonzales’s and his mother’s testimony about their memory loss was not credible and (2)

affirmatively demonstrating through cross-examination that Mrs. Gonzales did, in fact, have a

memory of the events giving rise to the allegations in the indictment and, therefore, would be able

to assist in her son’s defense. The State did not, however, contradict the claim that Gonzales’s

father was unavailable to testify at trial. Gonzales’s mother testified that her husband, who drove

the complainant home after the alleged assault, was in poor health and had memory loss after

suffering his third heart attack since the indictment was filed in 2004. Beyond its cross-

examination of Gonzales and his mother, the State offered no evidence to controvert the claim of

the father’s unavailability.

       Additionally, although the State contends it convinced the trial court that Gonzales’s

representations of memory loss were not credible, such an argument fails to satisfy the State’s

burden to rebut the presumed prejudice in favor of Gonzales. While we acknowledge that

attempting to prove a negative is difficult, the State is nonetheless required to rebut or extenuate

the presumption of prejudice. See Gonzales, 2013 WL 765575, at *1. Gonzales was not required

to show he was unable to adequately prepare for his defense, but rather, the State was required to

show that his defense was unimpaired despite the lengthy delay. See Doggett, 505 U.S. at 654 n.4.

The question before this Court is whether the State satisfied its burden to persuasively rebut the

presumption of prejudice by showing no “serious” impairment to Gonzales’s defense as a result of

the delay. See Munoz, 991 S.W.2d at 826. We cannot agree that the State has met its burden here.
                                                - 11 -
                                                                                    04-11-00405-CR


Because the State has failed to persuasively rebut the presumption of prejudice, we conclude the

fourth Barker factor weighs in favor of Gonzales. See Pierce v. State, 921 S.W.2d 291, 296 (Tex.

App.—Corpus Christi 1996, no pet.) (holding State failed to rebut presumption of prejudice).

Balancing the Barker Factors

       All four of the Barker factors weigh in Gonzales’s favor.           The six-year delay is

presumptively prejudicial and stretches far beyond the “bare minimum” previously recognized by

this Court. See Guerrero, 110 S.W.3d at 159 (citing Rangel, 980 S.W.2d at 843). The record is

silent on the reasons for the delay, and due to the sizeable length of the delay in this case, this

factor weighs heavily against the State. See Doggett, 505 U.S. at 657 (the longer the delay due to

official negligence, the less tolerable the delay becomes); Orand, 254 S.W.3d at 571 (lengthy delay

weighs heavily against the State, even where no bad faith is shown). After he was finally arrested,

Gonzales promptly asserted his right to a speedy trial. Finally, as to prejudice, we have concluded

that the State failed to rebut the presumption that Gonzales’s defense was impaired. We therefore

hold the trial court erred in denying Gonzales’s motion to dismiss for lack of a speedy trial and

render judgment dismissing the prosecution with prejudice. See Barker, 407 U.S. at 522; Cathey

v. State, No. 04-04-00501-CR, 2005 WL 3295748, at *5 (Tex. App.—San Antonio Dec. 7, 2005,

no pet.) (mem. op., not designated for publication).


                                                  Rebeca C. Martinez, Justice

Publish




                                               - 12 -
