Opinion filed September 3, 2020

In The

Eleventh Court of Appeals __________

No. 11-18-00247-CR 

__________

ROBERTO LUJAN JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CR51096

M E M O R A N D U M O P I N I O N

The jury found Roberto Lujan Jr. guilty of assault family violence by 

impeding breath or blood, a third-degree felony offense. See TEX. PENAL CODE ANN. 

§ 22.01(b)(2)(B) (West Supp. 2019); TEX. FAM. CODE ANN. § 71.0021(b) (West 

2019). During the punishment phase of trial, Appellant pleaded not true to two prior 

felony convictions alleged for enhancement purposes. The jury subsequently found 

that Appellant had previously been convicted of the following felony offenses: 
2

(1) felon in possession of a firearm, a federal felony offense, and (2) possession of a

controlled substance in an amount of at least four grams but less than 200 grams, a 

state felony. The jury assessed Appellant’s punishment at confinement for a period 

of forty years in the Institutional Division of the Texas Department of Criminal 

Justice.

Appellant presents two issues on appeal. In his first issue, Appellant 

challenges the sufficiency of the evidence to support the jury’s finding of “true” to 

the prior federal conviction. He alleges in his second issue that the trial court 

violated his right to a speedy trial. We affirm. 

Background Facts

The underlying facts of the guilt/innocence phase of trial are unnecessary for 

the disposition of this appeal. Accordingly, we only summarily note them here. 

Asucena Salcido and Appellant were dating, and Appellant sometimes stayed at

Salcido’s apartment in Midland. During the evening of October 6, 2017, Salcido 

became upset when Appellant declined to answer his ringing phone while she 

attempted to rest after work. 

Salcido began to place Appellant’s clothing in a garbage bag and told him that 

she wanted him to leave. When Salcido turned around, Appellant told her that she 

was going to die, pinned her down on the bed, began strangling her with both hands, 

and then completely covered her face with the garbage bag so that she was unable 

to breathe. Salcido testified that she believed she would die and that she fought 

against Appellant until they fell off the bed. After Salcido screamed for help, 

Appellant placed a pillow over her face and told her to calm down. Salcido struggled

free and was able to reach her phone. Although Appellant attempted to take the 

phone from Salcido, she was able to successfully dial 9-1-1 for assistance.
3

Analysis

In his first issue, Appellant challenges the sufficiency of the evidence to 

support the jury’s finding that Appellant previously had been convicted on a federal 

charge of being a felon in possession of a firearm. “[W]hen the State seeks to 

enhance a defendant’s sentence for the primary offense by alleging that a defendant 

has a prior conviction, and the defendant enters a plea of not true, the factfinder must 

decide whether the State has sustained its burden by entering a finding that the 

enhancement allegation is either true or not true.” Jordan v. State, 256 S.W.3d 286, 

291 (Tex. Crim. App. 2008) (footnotes omitted). In making this determination, “the 

factfinder engages in a deductive, discrete fact-finding process to determine whether 

the State has proved that the enhancement allegation is true.” Id. at 292. A defendant 

may challenge the sufficiency of the evidence supporting the jury’s finding of true. 

Id. If the State’s evidence fails to show that an enhancement allegation is true, the 

Double Jeopardy Clause does not bar the use of the enhancement conviction during 

a retrial on punishment. Id. (citing Monge v. California, 524 U.S. 721, 734 (1998)).

We review a challenge to the sufficiency of the evidence, regardless of 

whether it is denominated as a legal or factual sufficiency challenge, under the 

standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. 

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 

288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we 

review all the evidence in the light most favorable to the verdict and determine 

whether any rational trier of fact could have found the essential elements beyond a 

reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 

(Tex. Crim. App. 2010).

To establish that the defendant has been convicted of a prior offense for 

enhancement purposes, the State is required to prove beyond a reasonable doubt that 

a prior conviction exists and that the defendant is linked to that conviction. 
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Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). There is no specific 

manner in which the State must prove these two elements. Id. at 922. A certified 

copy of a judgment and sentence are admissible even when the State has not yet 

linked the defendant to the judgment and sentence through independent evidence. 

Beck v. State, 719 S.W.2d 205, 210–11 (Tex. Crim. App. 1986). Without more, 

however, the certified judgment and sentence are insufficient to prove the prior 

conviction even if the name is the same as that of the defendant at trial. Id. at 210. 

A defendant may be linked to a prior conviction through the testimony of a witness 

who personally knows that the defendant was previously convicted and who can 

identify the defendant. See, e.g., Beck, 719 S.W.2d at 209 (citing Ward v. State, 505 

S.W.2d 832, 837 (Tex. Crim. App. 1974) (explaining that signed order of conviction 

and testimony of county attorney who was present at the prior trial were sufficient 

to prove the defendant’s prior conviction)); Littles v. State, 726 S.W.2d 26, 31–32 

(Tex. Crim. App. 1984).

The State offered into evidence a certified copy of the federal court’s 

judgment of conviction signed on March 1, 2012, which was founded upon the 

defendant’s December 6, 2011 plea of guilty to having committed the offense of 

being a “Convicted Felon in Possession of a Firearm” in violation of 18 U.S.C. 

§ 922(g)(1). The federal judgment does not bear the fingerprints, photograph,

signature, or date of birth of the named federal defendant, “Roberto Franco Lujan, 

Jr.” The trial court admitted the certified federal judgment over Appellant’s 

objections that the judgment was not relevant and was hearsay, testimonial, and 

needed to be proved by a court clerk to satisfy Appellant’s Confrontation Clause 

rights.

The State attempted to link the 2012 federal conviction to Appellant through 

Salcido’s testimony. Over defense counsel’s objection, the trial court permitted the 

State to recall Salcido to testify during the punishment phase. Salcido testified that 
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she had known Appellant for fourteen years and had been staying with him at his 

apartment in 2012, the year of the federal conviction. Salcido testified that Appellant 

was on federal probation at the time of trial and that it arose from his 2012 federal 

conviction for a felon being in possession of a firearm. She also testified that 

Appellant went to federal prison for the conviction; Appellant had confirmed this 

fact to her and had written to her from a federal facility in Three Rivers. Salcido

confirmed that the person she had identified in court as Roberto Lujan Jr. was the 

same “Roberto Franco Lujan, Jr.” who had the 2012 federal conviction.

Under cross-examination, Salcido stated that she was certain that Appellant 

had been convicted in 2012 but admitted that she did not know when or on what day 

he had been convicted because she did not “follow through,” “wasn’t there for him,” 

and had not been present at any of Appellant’s proceedings to hear anyone announce

that Appellant had been convicted. She knew that Appellant had written to her from 

a federal facility because the envelope bore a stamp of “Three Rivers,” but she 

acknowledged that mail fraud does occur. Although Salcido visited Appellant while

he was detained in the Ector County Detention Center, she did not subsequently 

travel to visit Appellant in a federal prison and admitted that she could not verify for 

the jury that Appellant had been to a federal prison facility. She admitted that she is 

unaware of the different types of jurisdictions. Under redirect examination, Salcido 

explained that the envelope that contained the letter that Appellant sent to her was 

marked “federal correctional institution” in black ink. 

Appellant assertsthat the evidence wasinsufficient to support the jury’s “true” 

finding as to the federal-conviction enhancement allegation. We disagree. The State 

established through Salcido’s testimony that Appellant was the same person 

previously convicted in federal court for the offense of being a felon in possession 

of a firearm in 2012. Salcido had known Appellant for fourteen years and had dated 

him periodically during that period, had been living with him when he was arrested 
6

for the federal charge, had visited him in the county detention facility before he 

began serving his prison sentence on that charge, had been informed directly by 

Appellant that he had been convicted for the offense of being a felon in possession 

of a firearm, had received correspondence from Appellant marked “federal 

correctional institution,” and otherwise demonstrated personal knowledge of 

Appellant’s identity and his criminal history. See Davis v. State, 268 S.W.3d 683, 

717 (Tex. App.—Fort Worth 2008, pet. ref’d) (citing Beck, 719 S.W.2d at 

209). Viewing the evidence in the light most favorable to the verdict, we conclude 

that a rational trier of fact could have found beyond a reasonable doubt that 

Appellant was the person convicted on the 2012 federal charge of “Convicted Felon 

in Possession of a Firearm.” See Jackson, 443 U.S. at 319. We overrule Appellant’s 

first issue.

In his second issue, Appellant asserts that his right to a speedy trial pursuant 

to the Sixth Amendment of the U.S. Constitution and Article I, section 10 of the 

Texas Constitution was violated. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10.

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

states through the Fourteenth Amendment, provides that, “[i]n all criminal 

prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S.

CONST. amend. VI; see also Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. 

App. 2014) (recognizing that the right to a speedy trial is made applicable to state 

criminal prosecutions by the Due Process Clause of the Fourteenth Amendment). 

Article I, section 10 of the Texas Constitution also guarantees the accused in all 

criminal prosecutions the right to a speedy and public trial. Smith v. State, 436 

S.W.3d 353, 363 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (citing 

Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002)). 

Courts determine a speedy trial claim on an “ad hoc basis” by analyzing and 

weighing four factors: (1) the length of the delay, (2) the State’s reason for the delay, 
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(3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the 

defendant because of the length of delay. Barker v. Wingo, 407 U.S. 514, 530 

(1972); Gonzales, 435 S.W.3d at 808. The State has the burden to justify the length 

of the delay, while the defendant has the burden to prove he asserted his right and is 

prejudiced. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). The 

defendant’s burden on the latter two factors “varies inversely” with the State’s 

degree of culpability for the delay. Id. (quoting Robinson v. Whitley, 2 F.3d 562, 

570 (5th Cir. 1993)). When conducting the balancing test, no single factor is 

determinative, and the conduct of both the prosecutor and the defendant must be 

weighed. Barker, 407 U.S. at 530, 533; State v. Munoz, 991 S.W.2d 818, 821 (Tex. 

Crim. App. 1999).

To trigger a speedy trial analysis, the defendant must make an initial showing 

that “the interval between accusation and trial has crossed the threshold dividing 

ordinary from ‘presumptively prejudicial’ delay.” Gonzales, 435 S.W.3d at 808 

(quoting Doggett v. United States, 505 U.S. 647, 651–52 (1992)). If the defendant 

makes a threshold showing of presumptive prejudice, the court must consider and 

weigh each of the remaining Barker factors. Id. (citing Munoz, 991 S.W.2d at 821–

22). If the right to a speedy trial has been violated, the remedy is dismissal of the 

charging instrument with prejudice. Cantu, 253 S.W.3d at 281. Because this is an 

extreme remedy, “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.”

Id. “The constitutional right is that of a speedy trial, not dismissal of the charges.”

Id.

When reviewing the trial court’s ruling on a speedy trial claim, we apply a 

bifurcated standard of review. Cantu, 253 S.W.3d at 282 (citing Zamorano, 84 

S.W.3d at 648); see also Gonzales, 435 S.W.3d at 808. We presume the trial judge 
8

resolved any disputed fact issues in the State’s favor, and we defer to the implied 

findings of fact that the record supports. Cantu, 253 S.W.3d at 282. We review 

legal questions de novo to determine whether there was sufficient presumptive 

prejudice to proceed to a Barker analysis. Gonzales, 435 S.W.3d at 809. We must 

uphold the trial court’s ruling if it is supported by the record and is correct under the 

applicable law. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003).

“The delay in speedy trial claims is measured from the time the defendant is 

formally accused or arrested.” Floyd v. State, 959 S.W.2d 706, 710 (Tex. App.—

Fort Worth 1998, no pet.). Midland Police Officer Arturo Garcia testified that he 

was dispatched to Salcido’s apartment on October 6, 2017. After he had interviewed 

Salcido, Garcia looked for and found Appellant. After making further inquiries of 

Salcido, Garcia arrested Appellant. Appellant was indicted for the charged offense 

on February 21, 2018.

Appellant sought to have his initial trial date of June 11, 2018, reset to an 

earlier date, subject to the State’s calendar. In this regard, Appellant’s trial counsel 

advised the trial court that Appellant “has a marshal hold, so he cannot bond out.” 

Due to scheduling conflicts, the trial court advised Appellant that it doubted that it 

could reset the trial to an earlier date, and in a subsequent pretrial hearing, the 

defense counsel confirmed that Appellant’s case was the third case set “on a speedy 

trial docket” for June 11, 2018. The trial court subsequently granted the State’s 

single motion for continuance. The State based the motion on the fact that 

Officer Garcia would be on vacation and unavailable to testify at the June setting. 

Appellant’s trial commenced less than two months later on August 6, 2018. 

Therefore, the interval from Appellant’s indictment to the commencement of his trial 

was less than six months, and the interval from Appellant’s arrest to his trial was ten 

months. Post-accusation delay that approaches one year “marks the point at which 

courts deem the delay unreasonable enough to trigger the Barker enquiry.” Doggett, 
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505 U.S. at 652 n.1; Balderas v. State, 517 S.W.3d 756, 768 (Tex. Crim. App. 2016); 

Tasby v. State, 111 S.W.3d 178, 183 (Tex. App.—Eastland 2003, no pet.). We 

conclude that, under the facts of this case, the interval between accusation and trial 

in this case has not crossed the threshold of ordinary delay and is therefore not 

presumptively prejudicial. See Doggett, 505 U.S. at 651–52; Gonzales, 435 S.W.3d 

at 808; Tasby, 111 S.W.3d at 183 (an interval of eight and one-half months). 

Consequently, Appellant has failed to make an initial showing sufficient to trigger a 

speedy trial analysis, and we need not consider and weigh each of the remaining

Barker factors. Gonzales, 435 S.W.3d at 808 (citing Munoz, 991 S.W.2d at 821–

22). 

Moreover, even considering the Barker factors, Appellant cannot establish a 

constitutional violation. The second Barker factor focuses on the reasons for the 

delay. Barker, 407 U.S. at 530. Barker assigns different weights to different reasons 

to justify the delay. Id. at 531. “A deliberate attempt to delay the trial in order to 

hamper the defense should be weighted heavily against the government.” Id.

However, a more neutral reason should be weighted less heavily, but is still 

considered against the State since the ultimate responsibility for a speedy trial rests 

with the State. Id. “Finally, a valid reason, such as a missing witness, should serve 

to justify appropriate delay.” Id. The State based its motion for continuance on the 

unavailability of Officer Garcia for the trial setting. The State asserted that it would 

be unable to present its prima facie case without Officer Garcia. Thus, the delay 

attributable to Officer Garcia’s absence does not weigh against the State.

Regarding the third Barker factor, the defendant bears the responsibility to 

assert his right to a speedy trial. Cantu, 253 S.W.3d at 282. Whether and how a 

defendant chooses to assert his right “is closely related to the other three factors 

because the strength of his efforts will be shaped by them.” Id. at 282–83. A 

defendant’s failure to timely seek a speedy trial does not amount to a waiver of the 
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right. Shaw, 117 S.W.3d at 890 (citing Barker, 407 U.S. at 532). Here, Appellant 

did not seek continuances or a dismissal of the case. Instead, he requested to proceed 

to trial. Therefore, this factor weighs in favor of Appellant. See Barringer v. State, 

399 S.W.3d 593, 601–02 (Tex. App.—Eastland 2013, no pet.).

The last Barker factor to consider is prejudice to the defendant. “Because 

‘pretrial delay is often both inevitable and wholly justifiable,’” this 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). The prejudice must be assessed 

in light of the interests that the speedy trial right is meant to protect: (1) preventing 

oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, 

and (3) limiting the possibility that the defense will be impaired. Id.;see also Barker, 

407 U.S. at 532. Of these three interests, the possibility that the defense will be 

impaired by dimming memories and the loss of exculpatory evidence is the most 

serious “because the inability of a defendant adequately to prepare his case skews 

the fairness of the entire system.” Barker, 407 U.S. at 532; see also Doggett, 505 

U.S. at 654; Gonzales, 435 S.W.3d at 812. 

The defendant has the burden to make some showing of prejudice, although a 

showing of actual prejudice is not required. Munoz, 991 S.W.2d at 826; State v. 

Smith, 76 S.W.3d 541, 551 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). 

When the defendant makes a prima facie showing of prejudice, the burden shifts to 

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

ensued from the ordinary and inevitable delay.” Munoz, 991 S.W.2d at 826; Smith,

76 S.W.3d at 551. 

On appeal, Appellant does not assert any interest related to oppressive pretrial 

incarceration or to his anxiety and concern. Rather, he asserts that his defense was 

impaired because Salcido’s memory was diminished, and her recollection of events 
11

had changed over time. He also asserts that Salcido’s testimony differed from that 

of Officer Garcia. 

A witness’s fading or changing memory can constitute prejudice. Barker, 407 

U.S. at 532, 534. However, “Barker requires a defendant to show that ‘lapses of 

memory’ are in some way ‘significant to the outcome’ of the case.” Munoz, 991 

S.W.2d at 829 (quoting Barker, 407 U.S. at 534). Appellant has not suggested nor 

shown that Salcido’s alleged diminished memory was significant to the outcome of 

his case. Accordingly, this factor weighs against the finding of a violation of 

Appellant’s right to a speedy trial.

Balanced together, the four Barker factors weigh against a finding that 

Appellant’s right to a speedy trial was violated. See Barker, 407 U.S. at 534; Shaw, 

117 S.W.3d at 891. We overrule Appellant’s second issue.

This Court’s Ruling

We affirm the judgment of the trial court. 

JOHN M. BAILEY

CHIEF JUSTICE

September 3, 2020

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

Panel consists of: Bailey, C.J., 

Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

1

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.