NO. 07-00-0365-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C FEBRUARY

20, 2002

______________________________ JOAQUIN VILLARREAL CASTILL O, APPELLANT V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 1 81ST DI STRICT COURT OF PO TTER CO UNTY; NO. 39,816-B; H ONORABLE WILLIAM R. SHAVER , JUDGE

_______________________________ Before QUINN and REAVIS an d JOHNSON, JJ. Upon a plea of not guilty, appellant Joaquin Villarreal Castillo was convict ed by a jury of m urde r and puni shme nt was asse ssed at 99 years conf inem ent. Origin ally, appellant’s appeal was presented pursuant to Anders v. Cali fornia, 386 U.S. 7 38, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) . However, after an independent

examination of the record,
on September 12, 2001, t his Court aba ted the appeal and remanded the caus e to the trial court for appointment

of new counsel to brief whe ther a 24-month del ay from the time of2

appellant’s arrest to t he time of trial t rigger ed a speedy tr ial analysis. In accordance wi th
our directive, appellant’snew counsel has fil ed a supplemental br ief in whic h he contends thatappellant was denied the ri ght to a speedy trial. Based upon the rationale ex pressed herei n, weaffirm. Appellant

was arr ested for murder on June 24, 1998, and i ndicted for the crime on October 29, 1998. Although represent ed by court-a pp ointed attorneys since his arraignm ent, appellant filed o ver a doz en pro se pretrial motions. On Jul y 27, 1999, he filed a “Petition For Release Because of Delay” as well as a “Moti on for Fast and Speedy Trial,” contending th at more than one year had lapsed s ince he was firs t taken into custody and the State had not pr oceeded to trial. On April 27, 2000, appellant fil ed a pro se motion to dismiss ass erting the Sta te viol ated his rig ht to a speedy trial under

the Sixth Amendmentand ArticleI, Section 10 of theTexas Consti tution. No moti ons for continuance were sought and trial commenced on July 11, 2000. Appellant

asserts he was deni ed his consti tutional ri ght to a speedy trial. The right to a speedy tri al is guar anteed by the Sixth Amendment of the United StatesConstitutio n and applies to the states throug h the Fourteenth A mendment. See Barker v . Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182 , 2192, 33 L.Ed.2d 101, 116-17 (1972). Additionally, Article I, Section 10 of the Texas Constituti on and articl e 1.05 of the Texas C ode of Criminal Procedure Annotated (Vernon 1977) guarantee a speedy tri al. In determi ning whe ther an accused was denied his rig ht to a speedy trial, w e are requi red to balance four factors to-3

wit: 1) length of the delay; 2) reason for the delay; 3) assertion of the right; and 4) prejudice to the accused, to determin e whether a defendan t’s right to a speedy trial has b ee n violated. Id . at 530 -32; State v. Munoz, 991 S.W .2d 818, 821 (Tex.Cr.App. 19 99). No single factor is a “ necessary or suffi cie nt c ondi tion to t he fi ndin g” of a speedy tri al viola tion, and these factors mus t be considered in conjunction with other relevant circumsta nces. Munoz , 991 S.W .2d at 8 21, citin g Barker , 407 U.S. at

533. Because the balancing test as
a whole is a purely

lega l question, we must r eview appellant's contention de novo

. See Johnson v. State, 954 S.W .2d 770, 771 (Tex.Cr.App. 19 97). Length of

de la y. Although a de fendant ha s the burden of firs t showing that sufficient delay has o ccurred to t rigger application of the Barker bal anci ng tes t, St ate v. Hern and ez, 830 S.W.2d 631, 635 (Tex.App.–San Antonio 1992, no pet.), theState candidly accepts that

the 24-month delay

between appellant’s a rrest and tr ial necessi tates applicatio n of the Barker test. See Harris v. State, 827 S.W.2d 949, 956 (Tex.Cr.App. 1992), cert. denied , 506 U.S. 942, 113S.Ct. 381, 121 L. Ed.2d 292 (1992). Thus, we need only consi der the remaini ng three Barker factors.
Reason for the de la y. The State bears t he burden of justify ing the trial dela y, and if the record i s silent or

the reasons g iven are i nsufficient to excuse the delay, the appellate court mu st presume that novalid r eason for the delay

existed. Phillips v. State, 6 5 0 S.W.2d 396, 400 (Tex.C r.App. 1983). Barker does not req uire a direc t explanati on in every
case. See Ramirez v. State, 897 S.W .2d 428, 431-32 (Te x.App.–El Paso 1995, no pe t.).4

No factual hearing was held on appellant’s pro se motion s request ing a speedy tri al. When the pro se motions were brought to t he court’s at tention by

trial couns el, the court indicated ithad review

ed them and denied them. The docket sheet cont ained in the clerk’s record reflects that appellant ha d numerous court- appointed attorney s, one of whom w

as permitted to withdr

aw on Sept emb er 1, 1999, becaus e he was unabl e to work with appellant. On June 29, 2000, trial counsel filed a motion to wi thdraw beca use appellant filed a grievance against him. The trial court, however, denie d the moti on and t he case proceeded to trial shortly thereafter. Although represente d by counsel since his arraignment, appellant filed o ver a doz en pro se documents. No continuances were sought by the State. However, the c lerk’s r ecord indicates that appellant ’s lack of cooperation w ith his various attorneys may have been a con tributing factor in the l ength of the delay. Thus, we conclud e this factor w eighs agai nst appellant.
Assertion of the right. A defendant’s asser tion of his speedy

trial right i s entitled to strong evidentiary weight in determining whether he was depr ived of that r ight. Barker , 407 U.S. at 531-52. Convers ely, a failu re to a ssert the right i n a timely and persistent
manner indicates tha the did not really desire a speed y trial

. Id . at 534-36. In such a case, this factor must be weighed against the defendant. Sinclai r v. State , 894 S.W.2d 437, 440 (Tex.App.--Austin 1995, no pe t.). Appellant

filed his firs t mot ion for speedy tri al and petition for release becaus e of delay on Ju ly 27, 1999 , 13 m onth s af ter h is arr est a nd al most one ye ar prior t o trial. A5

second motion and petiti on were filed on August 6, 1999 . His assert iveness in seeking a speedy trial is entitled to s trong ev identiary weight

. State v. Rangel, 980 S.W.2d 840, 844 (Tex.App.–San Anton io 1998, no pet.). Thus, this factor weighs in appellant’s favor. Prejudice. Although a showing of actual prejudice is not required, ap pellant bears the initial burden of establishing prejud ice from the delay of his trial. H arris v . State, 489 S.W.2d 303, 308 (Tex.Cr.App. 1973 ). It is the defendant’s burden to make a s howing of prejudice. R am irez , 897 S.W.2d at 433. A mere passag e of time is not per se a deprivati on of the right to a speedy tr ial. M cCarty v. St ate, 498 S.W.2d 212, 215 (Tex.Cr.A pp. 1973). Prej udice is cons idered i n li ght of the inter ests that the r ight to a sp eedy trial was designed to protect. Barker , 407 U.S. at 532. These interests include prevention of ex

tend ed pr

etr ial inc arc erat ion, mini miz atio n of anxiety over pending charges , and most importantl y, the prevention of actual prejudice to the defen dant's ability to present
a defense. See Emery v . State, 881 S.W.2d 702, 709 (Tex.C r.App. 1994), cert. denied , 513 U.S. 1192, 115 S.Ct. 1257, 13 1 L.Ed.2d 137 (1995) . Although ac tual prejudice is not required, a defendant must make a prima facie showing of prejudice. Munoz , 991 S.W.2d at 826.
The record reflec ts that appellan t was deni ed bond at the time of hi s arraig nment and was incarcerated pending trial. However, there is no evi dence to show that appellant suffered anxiety , fear, loss of employ ment, or disr uption of family l ife. Most impor tant ly , appellant

did not establi sh the possibi lity that his defense was impaired by the delay. Id

.6

Thus, the record does

not establish that appellant w as prejudiced by the dela y. Appellant’s sole contention is overruled. Accordingl y, the judg ment of the trial court is affirmed.
Don H. Reavis Justice
Do not publish

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