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                                 MEMORANDUM OPINION

                                        No. 04-09-00086-CR

                                        Douglas WILKENS,
                                            Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                      From the County Court at Law No. 12, Bexar County, Texas
                                      Trial Court No. 200830
                             Honorable Michael E. Mery, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: January 6, 2010

AFFIRMED

           Douglas Wilkens was charged with the misdemeanor offense of driving while intoxicated.

In his sole issue on appeal, Wilkens claims he was denied his constitutional right to a speedy trial.

We affirm the trial court’s judgment.
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                                            BACKGROUND

        On January 23, 2007, Wilkens was charged by information with the offense of driving while

intoxicated. Wilkens was not arrested for the offense until October 28, 2007. On November 8,

2007, less than two weeks after his arrest, Wilkens filed a speedy trial motion demanding an

immediate trial setting. Wilkens also filed a motion to dismiss for failure to afford his constitutional

right to a speedy trial.

        The trial court held a hearing on Wilkens’s motions on November 20, 2007. At the hearing,

Wilkens announced “ready” and indicated he was prepared to commence with trial that same day.

As for the State, it offered no explanation for its delay in prosecuting Wilkens and notified the trial

court it had “no objection to setting [the case] as quick as possible.” The trial court denied

Wilkens’s motion to dismiss following the arguments of counsel, but granted Wilkens’s request for

a speedy trial. The court ordered Wilkens’s case to be placed on the jury trial call docket the

following week, which led to a trial setting for February 27, 2008.

        On the morning of Wilkens’s scheduled trial date, defense counsel informed the trial court

that he had to appear for jury duty and could not proceed with Wilkens’s trial as planned. Upon

learning of defense counsel’s conflict, the trial court reset Wilkens’s case for trial on July 23, 2008.

Wilkens immediately filed another motion to dismiss for failure to afford his constitutional right to

a speedy trial, which the trial court set for hearing on March 27, 2008. No hearing was held on

March 27, 2008; rather, the matter was reset for April 9, 2008. The trial court considered and denied

Wilkens’s motion to dismiss on April 9, 2008.

        Approximately three weeks before Wilkens’s July 2008 trial date, the trial judge informed

the parties that he had a scheduling conflict and could not begin Wilkens’s trial on July 23, 2008.


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The record indicates the trial judge had to attend a seminar on Wilkens’s trial date. The trial court

therefore reset Wilkens’s trial for September 10, 2008.

        On September 10, 2008, the State was unable to proceed and requested a continuance. The

trial court granted the State’s request and reset Wilkens’s trial for December 15, 2008. The next day,

Wilkens filed a third motion to dismiss for failure to afford his constitutional right to a speedy trial.

The trial court considered and denied Wilkens’s motion to dismiss on October 2, 2008, and

Wilkens’s trial was reset for January 5, 2009.

        For reasons not apparent from the record, Wilkens’s trial did not commence on January 5,

2009. Wilkens entered a plea of no contest on January 6, 2009, and the trial court found Wilkens

guilty of driving while intoxicated. The court sentenced Wilkens to 14 months of community

supervision and ordered him to complete 50 hours of community service. Wilkens was also fined

$525 for his offense.

                                             DISCUSSION

        Wilkens argues he was denied his constitutional right to a speedy trial. The Sixth

Amendment to the United States Constitution and article I, section 10 of the Texas Constitution

guarantee a defendant the right to a speedy trial. U.S. CONST . amend. VI; TEX . CONST . art. I, § 10;

see Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002). The right to a speedy trial

attaches once a person is arrested or formally accused. United States v. Marion, 404 U.S. 307, 321

(1971); Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). Texas courts analyze speedy

trial claims, both under the federal and state constitutions, the same. Harris, 827 S.W.2d at 956.

        Courts must balance four factors, commonly referred to as the “Barker” factors, when

analyzing the grant or denial of a speedy trial claim. Barker v. Wingo, 407 U.S. 514, 530 (1972); see


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Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997). These factors are: (1) the length of

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

the defendant. Barker, 407 U.S. at 530; Johnson, 954 S.W.2d at 771. No single factor is necessary

or sufficient to establish a violation of the right to a speedy trial; rather, they are related factors and

must be considered together. Barker, 407 U.S. at 533. In conducting this balancing test, “the

conduct of both the prosecution and the defendant are [to be] weighed.” Id. at 530.

        In reviewing the trial court’s ruling on a speedy trial claim, “we apply a bifurcated standard

of review: an abuse of discretion standard for the factual components, and a de novo standard for the

legal components.” Zamorano, 84 S.W.3d at 648. “Review of the individual Barker factors

necessarily involves fact determinations and legal conclusions, but ‘[t]he balancing test as a whole

. . . is a purely legal question.’” Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008)

(quoting Zamorano, 84 S.W.3d at 648 n.19). Under the standard we are to apply, we defer not only

to the trial judge’s resolution of disputed facts, but also to the judge’s right to draw reasonable

inferences from those facts. Id. “In assessing the evidence at a speedy trial hearing, the trial judge

may completely disregard a witness’s testimony, based on credibility and demeanor evaluations,

even if that testimony is uncontroverted.” Id. The trial judge is allowed to disbelieve any evidence

so long as there is a reasonable and articulable basis for doing so. Id. “And all of the evidence must

be viewed in the light most favorable to [the trial judge’s] ultimate ruling.” Id.

A. Length of Delay

        The length of delay is a “triggering mechanism” for analysis of the remaining Barker factors,

Barker, 407 U.S. at 530, and is measured from the date the defendant is arrested or formally accused.

Harris, 827 S.W.2d at 956. “Until there is some delay which is presumptively prejudicial, there is


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no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530. If

the accused is able to show a presumptively prejudicial delay, we must then consider the extent to

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

claim. Zamorano, 84 S.W.3d at 649. “When considering the length of delay, the peculiar

circumstances of each case are relevant to whether the delay was sufficient to initiate further review.”

State v. Rangel, 980 S.W.2d 840, 843 (Tex. App.—San Antonio 1998, no pet.). Texas courts have

generally held a delay of eight months or more is “presumptively prejudicial” and will trigger a

speedy trial analysis. Zamorano, 84 S.W.3d at 649 n.26.

       Wilkens was formally charged on January 23, 2007, and he entered his plea of no contest to

the offense on January 6, 2009. Thus, nearly two years elapsed between the first accusation and

Wilkens’s entry of his plea. The State concedes the delay in this case is “presumptively prejudicial”

and sufficient to trigger a speedy trial analysis under Barker. See id. Because the lengthy delay in

this plain-vanilla DWI case “stretched well beyond the bare minimum needed to trigger judicial

examination of the claim,” the first Barker factor weighs against the State. See State v. Guerrero,

110 S.W.3d 155, 159 (Tex. App.—San Antonio 2003, no pet.) (concluding thirty month period

during which the defendant was under formal accusation was far beyond minimum needed to trigger

speedy trial analysis and therefore weighed against the State).

B. Reason for the Delay

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

burden of justifying the delay. Rangel, 980 S.W.2d at 843. Intentional prosecutorial delay is

weighed heavily against the State, while more “neutral” reasons, such as negligence or overcrowded

dockets, are weighed less heavily against it. Zamorano, 84 S.W.3d at 649; Rangel, 980 S.W.2d at


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843-44. “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

v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). A valid reason serves to justify an appropriate

delay. Id.

         The record demonstrates Wilkens was formally charged on January 23, 2007, but was not

arrested until October 28, 2007. The State concedes we must attribute this delay to the prosecution

because it has no explanation for why it took nearly nine months to arrest Wilkens. After Wilkens’s

arrest, the trial court granted Wilkens’s request for a speedy trial on November 20, 2007 and set his

case for trial on February 27, 2008. On February 27, 2008, the day Wilkens’s trial was set to begin,

defense counsel informed the court he had a conflict and could not proceed at that time. The trial

court postponed Wilkens’s trial due to defense counsel’s conflict, setting Wilkens’s trial for July 23,

2008. Even though defense counsel had a legitimate basis for seeking a continuance — his summons

for jury duty — we cannot hold the State accountable for the resulting five-month delay. The record

further reveals the delay from July 23, 2008 until January 6, 2009, the date Wilkens entered his plea,

was largely caused by the actions of the trial court and the prosecution — not Wilkens. The delay

from July 23, 2008 until September 10, 2008 was caused by a scheduling conflict involving the trial

court, while the delay from September 10, 2008 until December 15, 2008 was caused by the State’s

inability to proceed at that time. The record is silent regarding the reason for the delay between

December 15, 2008 and the date Wilkens entered his plea.1




         1
           … The record indicates defense counsel had a vacation letter on file for this time period. However, it is unclear
from the record whether this was the reason for the reset of Wilkens’s trial.

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        As noted above, nearly two years elapsed between the first accusation against Wilkens and

the entry of his plea. Of this delay, only about five months are directly attributable to Wilkens.

Because the remaining delay must be attributed to the State for various reasons, the second Barker

factor weighs against the State.

C. Assertion of the Right

        The third factor requires a determination of whether the defendant asserted his right to a

speedy trial. Munoz v. State, 991 S.W.2d 818, 825 (Tex. Crim. App. 1999). The defendant’s

assertion of that right is entitled to strong evidentiary weight when determining whether the

defendant was deprived of his right to a speedy trial. Barker, 407 U.S. at 531-32. “Although a

motion to dismiss notifies the State and the court of the speedy trial claim, a defendant’s motivation

in asking for dismissal rather than a prompt trial is clearly relevant, and may sometimes attenuate

the strength of his” speedy trial claim. Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App.

1983). “Each case must turn on its own facts, and the particular relief a defendant seeks is but one

fact to consider.” Id.

        Wilkens filed his motion for speedy trial and first motion to dismiss on November 8, 2007,

less than two weeks after his arrest. Thereafter, the trial court granted Wilkens’s speedy trial motion

and set trial for February 27, 2008. Although Wilkens could not proceed on the designated trial date

due to defense counsel’s scheduling conflict, he acted promptly when the trial court reset trial for

July 23, 2008 — a date nearly five months later. The record shows Wilkens filed his second motion

to dismiss immediately after learning of his new trial date and secured a hearing on the motion.

Wilkens filed his third motion to dismiss after two more trial resets had occurred; one due to the trial

judge’s scheduling conflict and the other due to the prosecution’s inability to proceed with trial. We


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conclude these facts demonstrate Wilkens promptly and persistently asserted his right to a speedy

trial. See Maldonado v. State, No. 04-06-00755-CR, 2008 WL 506195, *3 (Tex. App.—San Antonio

2008, no pet.) (mem. op., not designated for publication). Accordingly, we hold the third Barker

factor weighs in favor of Wilkens.2

D. Prejudice

         The final Barker factor is prejudice to the defendant, which is assessed in the light of the

interests that the speedy trial right is designed to protect. Munoz, 991 S.W.2d at 826. These interests

are: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the

accused; and (3) limiting the possibility that the defense will be impaired. Id. “Of these subfactors

of the last Barker factor, ‘the most serious is the last, because the inability of a defendant adequately

to prepare his case skews the fairness of the entire system.’” Id. (quoting Barker, 407 U.S. at 532-

33). The defendant has the burden to make some showing of prejudice, although a showing of actual

prejudice is not required. Id. When the defendant makes a prima facie showing of prejudice, the

burden shifts to the State to show the defendant suffered “no serious prejudice beyond that which

ensued from the ordinary and inevitable delay.” Id. (quoting Ex parte McKenzie, 491 S.W.2d 122,

123 (Tex. Crim. App. 1973)).




         2
          … A defendant’s decision to plead guilty when his trial date arrives may potentially weaken his position
regarding the third Barker factor. See, e.g., Starks v. State, 266 S.W .3d 605, 612 (Tex. App.— El Paso 2008, no pet.)
(“However, we find the [third Barker] factor is substantially weakened by Appellant’s numerous requests for dismissal
of the case in his pro se motions and then his ultimate decision to plead guilty when his trial arrived.”); Hausauer v.
State, 04-04-00505-CR, 2005 W L 954376, *3 (Tex. App.— San Antonio 2005, no pet.) (mem. op., not designated for
publication) (“In addition, Hausauer’s acceptance of a plea bargain agreement at the next trial setting impairs his claim
by further demonstrating that his motivation was not to obtain a speedy trial, but rather to avoid a trial.”). Under the
circumstances of this case, however, we do not believe the third Barker factor is weakened by W ilkens’s decision to
plead no contest in light of W ilkens’s announcement of “ready” and request for an immediate trial setting at the hearing
on November 20, 2007.

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         There is no showing of prejudice in the record. Wilkens was not incarcerated while he was

awaiting trial; therefore, he endured no oppressive pretrial incarceration. The record is devoid of

evidence as to any anxiety or concern Wilkens may have had. Although Wilkens contends the delay

had an economic impact on him, there is nothing in the record to substantiate his contention. Finally,

the record contains no evidence suggesting Wilkens’s case was impaired or hampered by the delay.

We must therefore conclude the fourth Barker factor weighs against Wilkens.3

E. Balancing of the Four Barker Factors

         The length of the delay and, to a lesser extent, the reason for the delay, favor Wilkens’s

position that his right to a speedy trial was violated. Although Wilkens promptly and persistently

asserted his right to a speedy trial, the record is devoid of any evidence showing he suffered

prejudice from the delay. Balancing the four Barker factors, we cannot say Wilkens suffered a

violation of his right to a speedy trial. See Maldonado, 2008 WL 506195 at *5 (concluding no

speedy trial violation where first three factors weighed in defendant’s favor, but defendant showed

“only minimal prejudice”).

                                                   CONCLUSION

         We understand Wilkens’s frustration with the delay in this case, and we do not condone such

delay. However, pursuant to the relevant standards for speedy trial claims, our review of the record




         3
           … To the extent W ilkens argues he suffered presumptive prejudice from the near two-year delay in this case,
we reject this contention. See Compass v. State, No. 02-06-00075-CR, 2007 W L 2067733, at *3 n. 28 (Tex. App.— Fort
W orth 2007, no pet.) (mem. op., not designated for publication) (“W e decline to hold that a twenty-nine month delay
is presumptively prejudicial.”); State v. Wray, No. 05-01- 01799-CR, 2002 W L 1763567, at *4 (Tex. App.— Dallas 2002,
pet. dism’d) (mem.op., not designated for publication) (holding delay of 25 months is not presumptively prejudicial).

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fails to establish a violation of Wilkens’s speedy trial rights. The judgment of the trial court is

therefore affirmed.

                                                      Catherine Stone, Chief Justice

DO NOT PUBLISH




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