Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-17-00568-CR

The STATE of Texas,

Appellant

v.

Martin LOPEZ,

Appellee

From the County Court at Law No. 7, Bexar County, Texas

Trial Court No. 549327

Honorable Genie Wright, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Sandee Bryan Marion, Chief Justice

Rebeca C. Martinez, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: August 15, 2018

AFFIRMED

The State appeals the trial court’s order dismissing a misdemeanor assault charge against 

Martin Lopez on speedy trial grounds. As the parties acknowledge, the facts of this case are 

relatively uncommon in speedy trial cases. Lopez, who suffers from mental health disorders, was 

arrested for “putting his teeth [on his elderly mother’s face] while trying to bite her.” Lopez was 

placed in county jail, and he could not make bail. The State took nearly three months to decide 

whether a felony or misdemeanor assault charge would be more appropriate, determining 

ultimately to file a misdemeanor charge. A visiting judge thereafter denied Lopez’s request for 
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bail and set trial for twelve days later. Despite Lopez’s trial counsel raising the issue of his 

incompetence to stand trial at the pretrial hearing, Lopez was not evaluated. At trial, the State and 

Lopez’s trial counsel expressed concerns about Lopez’s competency. Based on the length of 

Lopez’s pretrial incarceration and inevitable future delays for competency proceedings, Lopez 

requested that the trial court dismiss the case on speedy trial grounds. The trial court agreed and 

dismissed the misdemeanor assault charge. Considering the factors set out by the Supreme Court 

of the United States in Barker v. Wingo, 407 U.S. 514 (1972), we conclude the trial court did not 

err and, accordingly, affirm the trial court’s order.

BACKGROUND

On April 18, 2017, Lopez allegedly “put[] his teeth [on his elderly mother’s face] while 

trying to bite her.” Lopez was arrested that day, and he was unable to make bail. The State opened 

a felony case against Lopez, but Lopez was never indicted. 

While Lopez was in jail, Lopez’s appointed trial counsel received a July 2, 2017 notice 

under article 17.151. See TEX. CODE CRIM. PROC. ANN. art. 17.151, § 1 (West 2015). The notice 

stated Lopez had been in custody for seventy-five days awaiting an indictment. It further stated:

Pursuant to Article 17.151 section 1 of the Texas Code of Criminal Procedure, a 

defendant who is detained in jail pending trial of accusation against them must be 

released either on personal bond or by reducing the amount of bail required, if the 

State is not ready for trial of the criminal action for which they are being detained 

within 90 days from the commencement of their detention if they are accused of a 

felony. 

On July 12, 2017, five days before the ninety-day deadline, the State filed a misdemeanor assault 

charge against Lopez and sought to keep him incarcerated in county jail.

At the July 27, 2017 pretrial hearing before a visiting judge, Lopez raised the issue of his 

competency to stand trial and requested a personal recognizance bond. The visiting judge denied 

Lopez’s request. Although the visiting judge ordered Lopez’s mental competence to be evaluated 
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over the weekend, no evaluation was conducted. The trial date was set for twelve days later on 

August 8, 2017. 

On August 8, 2017, the trial court called the case and began by asking Lopez questions, 

with the permission of his trial counsel. Lopez testified he has mental issues, but had no present 

desire to harm himself or others. Lopez testified he wanted the case dismissed because he had been 

in jail for four months. Lopez’s trial counsel orally moved for a speedy trial, requesting that the 

case be dismissed. 

The State responded it had a right to notice on the speedy trial motion, and that it was ready 

to proceed to trial. However, the State raised “concerns about [Lopez]’s mental health and

competency to proceed to trial, possibly.” The trial court then stated:

All right. This is what I’m going to put on the record. This man has no place to live. 

Because of a prior suicide watch, Haven for Hope will not take him. He has been 

in jail. There is some serious questions about whether or not anybody can proceed 

with this case. There are serious questions about whether his mother will even 

testify against him. She is currently in possession of a protective order -- which 

means you have to stay away from her. So I feel like the victim in this case has been 

protected, and she’s quite involved in the case from what I’ve learned from the 

attorney, and she’s quite vocal about what she wants to accomplish.

The State did not object to the trial court taking notice of these matters. 

The proceeding went off the record, and Lopez’s trial counsel filed a written Motion for 

Speedy Trial. Back on the record, the State again asserted its right to notice on the motion. The 

trial court overruled the State’s objection, noting the case was set for trial on that date and that the 

State had announced ready to proceed. The trial court admitted into evidence the article 17.151 

notice that, together with Lopez’s testimony, showed Lopez had spent 112 consecutive days in 

county jail as of the August 8, 2017 trial date. 

The trial court asked the State to explain the delay in the case up to that point. The following 

exchange occurred: 
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[THE STATE]: Your Honor, I don't believe they found no assault took place. They 

dismissed it and refiled it as a misdemeanor because I think they believed it was a 

more appropriate charge than the felony. 

[TRIAL COUNSEL]: I believe, Your Honor, they could say an assault took place, 

but there was no bodily injury, which was required for the felony. 

[THE STATE]: There was bodily injury in the case.

THE COURT: Well, here are our choices: The man has spent what would be the 

equivalent of almost a year in jail if you’re giving him two for one. He is not 

competent. We can’t try the case. 

[TRIAL COUNSEL]: Your Honor, even if we sent him for a competency hearing, 

that would be another month and he would be in jail for a full year.

THE COURT: And he would come back as being incompetent to stand trial. 

[TRIAL COUNSEL]: Correct. 

THE COURT: So I’m going to grant your Motion for a Speedy Trial, and I’m going 

on the record saying, State, you’re right. This is something that we need to take care 

of in court and the Court has no means to take care of it. We can’t try him. It’s just 

not right to leave him in jail, and we really don’t have any timely services to offer 

him.

Lopez’s trial counsel further stated that both he and the State agreed there was an issue as to 

Lopez’s competency to stand trial or to enter a plea. 

The trial court stated it had no choice but to grant Lopez’s Motion for Speedy Trial and to 

dismiss the case. The trial court and trial counsel explained to Lopez he could not see or contact 

his mother because she had a protective order. They also explained to Lopez that he was expected 

to seek mental health counseling immediately. Before the end of the hearing, the State argued the 

trial court could not dismiss the case because article 46B.005 of the Texas Code of Criminal 

Procedure required the court to order a competency evaluation. Apparently disagreeing with the 

State, the trial court signed an order granting Lopez’s Motion for Speedy Trial and dismissing the 

misdemeanor assault charge. The State timely filed a notice of appeal. 
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THE STATE’S SOLE ISSUE & ARGUMENTS ON APPEAL

The State presents a single issue on appeal, “Did the trial court err by failing to order a 

competency evaluation and, instead, dismissing the information against [Lopez] less than four 

months after he was arrested?” The State argues that once the trial court believed Lopez might be

incompetent to enter a plea or stand trial, the trial court had no discretion but to refer Lopez for a 

competency evaluation. See TEX. CODE CRIM. PROC. ANN. art. 46B.005(a) (West 2018). The State 

further argues the trial court lacked a basis to dismiss the case either under the Sixth Amendment 

or under Chapter 46B of the Texas Code of Criminal Procedure.

The State does not raise an issue or argue that the trial court erred by granting Lopez’s 

Motion for Speedy Trial based on the State not being provided with sufficient notice. The State 

also does not raise an issue or argue that the trial court improperly took judicial notice of any of 

the facts that the trial court noted for the record. In its reply brief, the State argues we may not 

consider any matters at the pretrial hearing before the visiting judge because Lopez “has not 

supplemented this Court with a record to support [his] claims” about the hearing. We disagree for 

two reasons. First, on August 8, 2017, the parties agreed that certain matters were raised at the 

pretrial hearing before the visiting judge. Thus, the record before us reflects some of the matters 

raised at the pretrial hearing. Second, because this is a State’s appeal, the State has the burden to 

present a sufficient record demonstrating its entitlement to the relief it seeks. See State v. Weiss, 8 

S.W.3d 342, 344 (Tex. App.—Beaumont 1999, no pet.); State v. Thomas, 938 S.W.2d 540, 542 

(Tex. App.—Dallas 1997, no pet.). When, as here, the State appeals, requests or causes to be filed

a partial reporter’s record, and does not designate its points or issues for appeal, we must presume 

the omitted part of the reporter’s record supports the trial court’s ruling. See TEX. R. APP. P.

34.6(c); Zavala v. State, 498 S.W.3d 641, 642 (Tex. App.—Houston [14th Dist.] 2016, no pet.); 

see also State v. Mackenzie, No. 13-16-00006-CR, 2017 WL 3306427, at *4 (Tex. App.—Corpus 
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Christi Aug. 3, 2017, no pet.) (mem. op., not designated for publication). We therefore turn to 

address the State’s sole issue in light of the partial reporter’s record presented by the State. 

MANDATORY COMPETENCY EVALUATION UNDER CHAPTER 46B

The State argues the trial court erred under chapter 46B of the Texas Code of Criminal 

Procedure by not allowing the prosecution to proceed and ordering a competency evaluation. We 

review a trial court’s implied decision not to order a competency evaluation for an abuse of 

discretion and consider the totality of the surrounding facts. See Gray v. State, 257 S.W.3d 825, 

827 (Tex. App.—Texarkana 2008, pet. ref’d). Article 46B.005 of the Texas Code of Criminal 

Procedure provides, “If after an informal inquiry the court determines that evidence exists to 

support a finding of incompetency, the court shall order an examination . . . to determine whether 

the defendant is incompetent to stand trial in a criminal case.” TEX. CRIM. PROC. CODE ANN. 

§ 46B.005(a). Generally, article 46B.005(a)’s provision for ordering a competency examination 

imposes a mandatory duty on the trial court. See id.; TEX. GOV’T CODE ANN. § 311.016(2) (West 

2013) (“‘Shall’ imposes a duty.”). But we must consider the totality of the surrounding facts. See 

Gray, 257 S.W.3d at 827. 

Here, Lopez argued his prosecution violated his constitutional right to a speedy trial. We 

may not construe chapter 46B, a state statute, in conflict with the constitution of the United States 

or of the State of Texas. See U.S. CONST. art. VI, cl. 2; see also TEX. GOV’T CODE ANN. 

§ 311.021(1); State v. Cortez, 543 S.W.3d 198, 206 (Tex. Crim. App. 2018) (“We have a duty to 

narrowly construe statutes to avoid a constitutional violation.”). We conclude a defendant must 

not be forced to undergo a competency evaluation in furtherance of his prosecution if his 

prosecution violates his constitutional rights. See TEX. GOV’T CODE ANN. § 311.021(1); Cortez, 

543 S.W.3d at 206. 
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“If a violation of the speedy trial right is established, the only possible remedy is dismissal 

of the prosecution.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003) (citing Strunk 

v. United States, 412 U.S. 434, 440 (1973)). Thus, whether the trial court erred under article 

46B.005(a) by not ordering a competency evaluation turns on whether the trial court erred by 

granting Lopez’s motion to dismiss based on his constitutional right to a speedy trial. If the trial 

court erred, and if a remand were necessary for further proceedings, we agree with the State that

any further proceedings would require a competency evaluation. But we must determine, as an 

initial matter, whether the trial court erred by dismissing the misdemeanor assault charge on speedy 

trial grounds.

RIGHT TO A SPEEDY TRIAL

The Sixth Amendment to the U.S. Constitution guarantees the accused in a criminal 

prosecution the right to a speedy trial. Hopper v. State, 520 S.W.3d 915, 923 (Tex. Crim. App. 

2017) (citing U.S. CONST. amend. 6; Vermont v. Brillon, 556 U.S. 81, 89 (2009)); see Klopfer v. 

North Carolina, 386 U.S. 213, 222-23 (1967) (holding Sixth Amendment speedy trial right applies 

to states via the Fourteenth Amendment). The Texas Constitution similarly guarantees the accused 

a speedy trial in a criminal prosecution. TEX. CONST. art. 1, § 10. Although it is unclear whether 

Lopez asserted his right to a speedy trial under the U.S. Constitution, the Texas Constitution, or 

both, we apply the same test. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). When 

evaluating a speedy trial claim under Barker v. Wingo, courts generally must “consider the length 

of delay, the reasons for delay, to what extent the defendant has asserted his right, and any 

prejudice suffered by the defendant.” Hopper, 520 S.W.3d at 923 (citing Barker, 407 U.S. at 530-

32); see Harris, 827 S.W.2d at 956. “The length of the delay is to some extent a triggering 

mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for 

inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530. The conduct of 
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both the State and the defense must be weighed in balancing the Barker factors, and no single 

factor is an essential or sufficient condition to the finding of a speedy trial violation. See id. at 530, 

533. “No one factor possesses ‘talismanic qualities,’ thus courts must ‘engage in a difficult and 

sensitive balancing process’ in each individual case.” Zamorano v. State, 84 S.W.3d 643, 648 (Tex. 

Crim. App. 2002) (quoting Barker, 407 U.S. at 533). 

We apply a bifurcated standard of review. Id. “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.” Balderas v. State, 517 S.W.3d 756, 767-68 (Tex. Crim. App. 2016). “An 

appellate court reviewing a trial court’s ruling on a motion to dismiss for want of a speedy trial 

must do so in light of the arguments, information, and evidence that was available to the trial court 

at the time it ruled.” Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). However, we 

do not consider “evidence that was not before the trial court when it made its ruling.” Balderas, 

517 S.W.3d at 768. 

“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. (citing Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997)). Because Lopez 

prevailed on his speedy trial claim, “we presume the trial court resolved any disputed fact issues 

in [his] favor.” State v. Ritter, 531 S.W.3d 366, 371 (Tex. App.—Texarkana 2017, no pet.) (citing 

State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)). When, as here, the State did not 

request, and the trial court did not make, findings of fact and conclusions of law, we will imply all 

findings necessary to support the trial court’s ruling if those findings are supported by the record. 

Id. 
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A. The Length of the Delay

The first factor we must consider is the length of the delay. Barker, 407 U.S. at 530;

Hopper, 520 S.W.3d at 924; Wisser v. State, 350 S.W.3d 161, 165 (Tex. App.—San Antonio 2011, 

no pet.). This first factor involves “a double inquiry: A court must consider whether the delay is 

sufficiently long to even trigger a further analysis under the Barker factors, and if it is, then the 

court must consider to what extent it stretches beyond this triggering length.” Hopper, 520 S.W.3d 

at 924 (citing Doggett v. United States, 505 U.S. 647, 651-52 (1992)). The length of delay is 

measured from the time the defendant is arrested or formally accused, whichever is first. Dragoo, 

96 S.W.3d at 313 (citing United States v. Marion, 404 U.S. 307, 313 (1971)).

1. Whether the length of the delay was presumptively prejudicial

“[C]ourts have usually tried to settle upon some time period after which . . . it makes sense 

to inquire further into why the defendant has not been tried more promptly.” 5 WAYNE R. LAFAVE,

ET AL., CRIMINAL PROCEDURE, § 18.2(b), p. 130 (4th ed. 2015). The Court of Criminal Appeals 

has noted that other courts generally hold a delay of eight months to a year, or longer, is 

presumptively prejudicial and triggers a speedy trial analysis. See, e.g., Shaw, 117 S.W.3d at 889;

Harris, 827 S.W.2d at 956. And, in felony sexual assault cases and cases in which defendants are 

released on bond, the Court of Criminal Appeals has recognized that a delay of four months is not 

sufficient while a seventeen-month delay is. Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim. 

App. [Panel Op.] 1983) (holding delay of seventeen months in prosecution for rape was 

presumptively prejudicial); Pete v. State, 501 S.W.2d 683, 687 (Tex. Crim. App. 1973) (holding 

no presumptive prejudice when defendant, charged with rape and incarcerated on burglary 

conviction, was tried four months after indictment). However, “there are some cases which do not 

fit this mold.” LAFAVE, supra, at § 18.2(b), p. 130. 
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There is “no constitutional basis for holding that the speedy trial right can be quantified 

into a specified number of days or months.” Barker, 407 U.S. at 523. And “[t]here is no set time 

element that triggers the analysis.” Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008). 

“Barker’s formulation necessarily compels courts to approach speedy trial cases on an ad hoc

basis.” Brillon, 556 U.S. at 91 (internal quotation omitted). The right to a speedy trial is necessarily 

relative, and whether the length of a delay is presumptively prejudicial and triggers an inquiry into 

the other Barker factors “is necessarily dependent upon the peculiar circumstances of the case.”

Barker, 407 U.S. at 522, 530-31. 

In this context, “prejudice” or “prejudicial” refers to (1) oppressive pretrial incarceration; 

(2) anxiety or concern related to the pending criminal charges; and (3) impairment of the accused’s 

defense. Shaw, 117 S.W.3d at 890 (citing Barker, 407 U.S. at 532). Circumstances of a case that 

can affect whether the delay is presumptively prejudicial therefore may include the nature of the 

charged offense, and whether the defendant can make bail or must await trial while confined in 

jail. See Barker, 407 U.S. at 520 (noting, “If an accused cannot make bail, he is generally 

confined . . . in a local jail.”). “[T]he delay that can be tolerated for an ordinary street crime is 

considerably less than for a serious, complex conspiracy charge.” Id. at 531. The State is entitled 

to a reasonable period to prepare its case. Cf. Shaw, 117 S.W.3d at 889-90 (noting, in aggravated 

sexual assault case, a three-month period between indictment and trial was a reasonable time for 

State to prepare its case). But “unreasonable delay in run-of-the-mill criminal cases cannot be 

justified by simply asserting that the public resources provided by the States’ criminal justice 

system are limited and that each case must await its turn.” Barker, 407 U.S. at 538 (White, J., 

concurring). 

The State cites an unpublished case from the El Paso court of appeals involving a fourmonth delay. State v. Wester, No. 08-16-00105-CR, 2017 WL 4277584 (Tex. App.—El Paso Sept. 
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27, 2017, no pet.) (mem. op., not designated for publication). The court of appeals noted courts 

must consider the “substance of the case” and the seriousness and complexity of the offense. Id. at 

*3. Wester, the defendant, was released on bond the day after he was arrested, but he was 

subsequently arrested on new, federal charges. Id. at *1. The court of appeals, relying on felony 

sexual assault cases, held a four-month delay did not trigger a full Barker analysis when the 

defendant was charged with first-degree-felony drug possession. Id. at *1, 3. 

The State also cites State v. Owens, which involved a seven-month delay. 778 S.W.2d 135, 

136 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d). In Owens, the delay was 223 days from the 

date of the defendant’s arrest to the date of his indictment for two counts of burglary of a habitation. 

Id. Notably, the defendant was incarcerated in county jail during that time. Id. Two days after the 

indictment, the defendant filed an application for writ of habeas corpus, raised his right to a speedy 

trial, and requested dismissal of the charges. Id. The trial court granted the defendant relief, and in 

considering the State’s appeal, the court of appeals affirmed. Id. Addressing Barker’s length-ofdelay factor, the court of appeals relied on Barker, noting, “A delay that can be tolerated for an 

‘ordinary street crime’ is considerably less than the time for a serious, complex conspiracy charge.”

Id. at 137 (citing Barker, 407 U.S. at 530). The court then held burglary of a habitation is an 

“ordinary street crime,” and proceeded to analyze the remaining Barker factors. Id. at 137-38. 

Although the State asks us not to follow Owens for several reasons, those reasons do not relate to 

the Owens court’s emphasis on Barker’s principle that we must consider the nature and complexity 

of the offense.

At least one court has held that under Barker, a three-and-half-month delay can trigger an 

analysis of the remaining Barker factors, depending upon the specific facts of the case. State v. 

Reaves, 376 So. 2d 136, 138 (La. 1979) (noting the court “assiduously follow[s] the Barker v. 

Wingo analysis in evaluating Louisiana speedy trial claims”). In Reaves, the defendant was 
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arrested and charged with misdemeanor possession of marijuana, and he was released on bail. Id. 

at 137. The court reset the trial multiple times over the course of several months because the State 

was unable to secure its witnesses’ attendance. Id. The court explained that although the case had 

been pending for only three and a half months:

the mere length of the delay does not determine the speedy trial issue. Since this 

case involves a simple misdemeanor offense, possession of a single marijuana 

cigarette, the constitution tolerates relatively brief delays. Accordingly, we must 

examine the peculiar circumstances of the case to find if the length of the delay and 

the closely related factor, the reason for the delay, provoke a speedy trial inquiry.

Id. at 138 (internal citations omitted). The Reaves court proceeded to analyze the remaining Barker 

factors and affirmed the trial court’s dismissal of the defendant’s misdemeanor drug possession 

charge on speedy trial grounds. Id. at 138-39. 

The State argues Wester is good law, Owens is bad law, and that we should follow the 

former. But Wester and Owens, as well as Reaves, read in light of Barker’s principles, as reiterated 

by the Court of Criminal Appeals, can be reconciled based on their different facts. Under Barker, 

we may not quantify the exact length of the time that will, in all cases, trigger or not trigger an 

analysis of the remaining Barker factors. Barker, 407 U.S. at 523; Cantu, 253 S.W.3d at 281. The 

above-discussed authorities are all consistent with the principle that we must consider the delay in 

light of the substance, seriousness, and complexity of the offense, as well as whether the defendant 

has been incarcerated in jail awaiting trial. See Wester, 2017 WL 4277584, at *1-3; Owens, 778 

S.W.2d at 136-38; Reaves, 376 So. 2d at 138-39; see also Doggett, 505 U.S. at 652 n.1 (noting 

whether a specific delay is presumptively prejudicial “depend[s] on the nature of the charges,” and 

citing LAFAVE, supra, § 18.2); Barker, 407 U.S. at 531 (noting delay should be viewed in light of 

seriousness and complexity of the charges). 

With these principles in mind, we turn to the facts of this case. As of the August 8, 2017 

trial date, Lopez had been accused by virtue of his arrest for 112 consecutive days. See Dragoo, 
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96 S.W.3d at 313 (providing delay measured from time of arrest). Although the State announced 

at the August 8, 2017 hearing it was ready to proceed to trial, the parties agreed there was 

uncertainty as to whether Lopez was competent to stand trial. See TEX. CODE CRIM. PROC. ANN. 

art. 46B.003(a) (providing an incompetent defendant may not be tried). Had Lopez not asserted 

his constitutional right to a speedy trial, the trial court would have had no discretion but to delay 

trial and order a competency evaluation. See id. art. 46B.005(a). The trial court, as a factfinder, 

was entitled to infer there necessarily would be additional delays before the case could proceed to 

trial on Lopez’s guilt. Thus, the record supports an implied finding that the delay did not consist 

of only 112 days, but potentially longer because not dismissing the charge would have required an 

evaluation of Lopez’s competency to stand trial and possibly subsequent competency proceedings

before the trial court could have proceeded with a trial on the misdemeanor assault charge. See id. 

arts. 46B.004(d), 46B.005(a), (b). 

It is undisputed Lopez was incarcerated for 112 days because he could not make bail, and 

we must presume, given the partial reporter’s record, the visiting judge denied Lopez’s request to 

be released on bond. See TEX. R. APP. P. 34.6(c); Mackenzie, 2017 WL 3306427, at *4; Zavala, 

498 S.W.3d at 642. The trial court considered the time Lopez had been incarcerated, as well as the 

likelihood of additional delays due to the question of Lopez’s competency, in light of the nature 

of the charged offense and the maximum punishment available. Lopez was charged with a Class 

A misdemeanor, the maximum punishment for which is a $4,000 fine and confinement in jail for 

a term not to exceed one year. See TEX. PENAL CODE ANN. §§ 12.21, 22.01(a)(3), (c)(1) (West 

2011 & Supp. 2017). Ordinarily, a defendant who is detained in jail pending trial of an accusation 

against him must be released on personal bond if the state is not ready for trial within “30 days 

from the commencement of his detention if he is accused of a misdemeanor punishable by a 

sentence of imprisonment in jail for more than 180 days.” TEX. CODE CRIM. PROC. ANN. art. 
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17.151, § 1(2). As the trial court noted, Lopez had “spent what would be the equivalent of almost 

a year in jail if you’re giving him two for one.” The trial court was also presented with the prospect 

that Lopez would be determined incompetent to stand trial and further confined. See TEX. CODE 

CRIM. PROC. ANN. art. 46B.0095(a) (West Supp. 2017) (providing a defendant incompetent to 

stand trial may be institutionalized for a period of time up to “the maximum term provided by law 

for the offense”).

Furthermore, the facts alleged in support of the information and complaint were that Lopez 

“put[] his teeth [on his elderly mother’s face] while trying to bite her” “when [he] knew and should 

reasonably have believed that [she] would regard the contact as offensive and provocative.” Unlike 

the cases upon which the State primarily relies, this case does not involve a complex factual 

scenario, a felony offense, or a defendant who has been released on bail pending trial. This case, 

like Reaves, involves a defendant charged with a relatively straightforward misdemeanor offense. 

See 376 So. 2d at 138. The facts here present a stronger case than Reaves for concluding the delay 

was presumptively prejudicial because the Reaves defendant was released on bail and his claim to 

prejudice was missing six days of work to be present for multiple trial settings. Id. at 139. Lopez, 

on the other hand, could not make bail and had spent 112 days incarcerated on a misdemeanor

offense.

Consistent with Barker and our sister courts, we consider the length of delay and the 

amount of time Lopez spent in the county jail in light of the substance, seriousness, and complexity 

of the offense. After all, a primary purpose of the right to a speedy trial is to prevent undue and 

oppressive pretrial incarceration. Marion, 404 U.S. at 320. “The time spent in jail awaiting trial 

has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and 

it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time 

spent in jail is simply dead time.” Barker, 407 U.S. at 532-33. We conclude that, based on the 
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specific facts presented by this case, the delay in this case was presumptively prejudicial and 

sufficient to trigger an analysis of the remaining Barker factors. 

2. The extent to which the delay stretches beyond the triggering length.

The second inquiry under the length-of-delay factor is the length of the total delay, 

including the delay beyond the triggering length. See Hopper, 520 S.W.3d at 924. As of August 8, 

2017, Lopez had been incarcerated for 112 days on a misdemeanor offense. As we previously 

noted, the trial court was entitled to infer additional delays would be necessary if the trial court 

denied Lopez’s Motion for Speedy Trial. Lopez’s trial counsel argued the delay for a competency 

hearing would be approximately one month and Lopez could be confined for up to a year; the State 

did not disagree or argue otherwise. See Shaw, 117 S.W.3d at 889 (requiring us to consider the 

arguments and information available to the trial court). Considering the 112-day length of Lopez’s 

pretrial incarceration, the simplicity of the offense, the maximum sentence for the charged offense, 

a reasonable time for the State to prepare this case, and an additional delay would be necessitated 

by the unresolved question of Lopez’s competency to stand trial, we conclude the length of the 

delay in this case weighs slightly against the State. 

B. The Reasons for Delay

The next factor we must consider is the reasons for the delay. See Hopper, 520 S.W.3d at

924. “The burden of justifying the delay is on the State.” Voda v. State, 545 S.W.3d 734, 742 (Tex. 

App.—Houston [14th Dist.] 2018, no pet.) (citing Cantu, 253 S.W.3d at 280). “In evaluating the 

State’s reason for the delay, we assign different weights for different reasons. Valid reasons for 

delay do not weigh against the State, whereas bad-faith delays weigh heavily against the State.” 

Id. (internal citations omitted). “A more neutral reason, such as negligence, will weigh less heavily 

against the State.” Id. “In the absence of an assigned reason for the delay by the State, we may 
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presume neither a deliberate attempt to prejudice the defense nor a valid reason for the delay.” Id.

(citing Dragoo, 96 S.W.3d at 314).

The record shows there are two1 delays in this case we must consider. The first delay—the 

112-day period from Lopez’s arrest to the August 8, 2017 trial date—was caused primarily by the 

State’s decision to pursue a felony assault charge initially, and then to refile the case against Lopez 

as a misdemeanor. The parties disputed in the trial court whether there was any evidence showing 

Lopez’s mother suffered a bodily injury that would support charging a felony. The State explained 

the State refiled the case as a misdemeanor because the State likely “believed it was a more 

appropriate charge than the felony.” The trial court was not bound to accept the State’s explanation.

And the trial court was entitled to infer the State should have filed the misdemeanor charge from 

the outset either because the misdemeanor charge was more appropriate or because the State had 

no evidence to prosecute the case as a felony. Based on the reason the State assigned for the delay, 

the trial court could have impliedly found the State was at least negligent by initially filing the case 

as a felony when the case should or must have been filed as a misdemeanor from the outset. Thus, 

the reason for the first delay of 112 days weighs against the State. See Hopper, 520 S.W.3d at 924.

The second delay we must consider is the future delay necessitated by the unresolved 

question as to Lopez’s competency to stand trial. “Courts have recognized several other situations 

which fall within the ‘valid reason’ category, such as incompetency of the defendant.” LAFAVE, 

supra, § 18.2(c), at 136 (citing United States v. Geelan, 520 F.2d 585 (9th Cir. 1975); U. S. ex rel. 

 1 We note the record supports a possible third delay if Lopez were determined competent to stand trial. The trial court 

recited for the record, with no objection from the State, facts suggesting Lopez’s mother was not willing to testify 

against Lopez and was simply using the criminal prosecution to keep Lopez in jail. The State does not complain on 

appeal that the trial court improperly took notice of these matters. See TEX. R. APP. 38.1(i). Thus, even if Lopez were 

determined to be competent, the trial court clearly questioned whether there would ever be a trial in this case. The trial 

court noted Lopez’s mother had been “very vocal” about her intent, which suggests the State likely knew about 

Lopez’s mother’s intent in pressing charges against Lopez. These facts could support an inference that the State’s 

delay was in bad faith, in which case this delay would weigh heavily against the State. See Cantu, 253 S.W.3d at 280-

81.
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Little v. Twomey, 477 F.2d 767 (7th Cir. 1973)); see Hull v. State, 699 S.W.2d 220, 222 (Tex. 

Crim. App. 1985) (“[T]he eight month delay due to appellant’s incompetency to stand trial does 

not infringe on his right to speedy trial.”) (citing Grayless v. State, 567 S.W.2d 216 (Tex. Crim. 

App. [Panel Op.] 1978)). However, holding a defendant longer than reasonably necessary, as 

determined by the “gravity of the offense,” presents different circumstances. Little, 477 F.2d at 

770 (citing Jackson v. Indiana, 406 U.S. 715, 738 (1972)). Moreover, the State has a duty to 

promptly try a defendant and “may not justify a delay merely by citing the defendant’s 

incompetence.” Geelan, 520 F.2d at 588. 

On August 8, 2017, the parties informed the trial court that the issue of Lopez’s competence 

had been raised and discussed at the pretrial hearing before the visiting judge. The trial court was 

informed the visiting judge had ordered Lopez to be evaluated, but Lopez was not evaluated. Given 

the partial reporter’s record, we must presume the visiting judge had a serious question as to 

Lopez’s competence to stand trial. See TEX. R. APP. P. 34.6(c); Mackenzie, 2017 WL 3306427, at 

*4; Zavala, 498 S.W.3d at 642. However, the record does not specify which party, if either, the 

trial court directed to evaluate Lopez. See TEX. CODE CRIM. PROC. ANN. art. 46B.021 (providing 

the process for ordering a competency evaluation). The State has not provided the court with an 

explanation for Lopez not being evaluated. We therefore cannot say the record supports an 

inference that the State was necessarily responsible for the inevitable future delay. See Voda, 545 

S.W.3d at 742; Dragoo, 96 S.W.3d at 314. Overall, we conclude the second factor, the reasons for 

the delays, weighs slightly against the State. 

C. Assertion of the Right

We next consider the extent that Lopez asserted his right to a speedy trial. Barker, 407 U.S. 

at 530; Hopper, 520 S.W.3d at 924; Wisser, 350 S.W.3d at 165. Lopez had the burden as to this 

factor. Cantu, 253 S.W.3d at 280. Generally, the assertion-of-the-right factor concerns whether a 
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defendant asserted his right to a speedy trial in the trial court as opposed to the first time on appeal. 

See Dragoo, 96 S.W.3d at 314; Phillips, 650 S.W.2d at 400-01 (citing Barker, 407 U.S. at 531-

532). “Of course, the defendant has no duty to bring himself to trial; that is the State’s duty.” 

Zamorano, 84 S.W.3d at 651. “This does not mean that the defendant has no responsibility to 

assert his right to a speedy trial.” Id. “[T]he defendant’s assertion of his speedy trial right is entitled 

to strong evidentiary weight in determining whether the defendant is being deprived of the right.” 

Id.

“Filing for a dismissal instead of a speedy trial will generally weaken a speedy-trial claim 

because it shows a desire to have no trial instead of a speedy one.” Cantu, 253 S.W.3d at 283. “If 

a defendant fails to first seek a speedy trial before seeking dismissal of the charges, he should 

provide cogent reasons for this failure. Repeated requests for a speedy trial weigh heavily in favor 

of the defendant, while the failure to make such requests supports an inference that the defendant 

does not really want a trial, he wants only a dismissal.” Id. 

“This is not to say, however, that asking only for dismissal will result in a ‘waiver,’ while 

seeking a speedy trial and, in the alternative, a dismissal, would preserve the claim.” Phillips, 650 

S.W.2d at 401. “In 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.” Id. “Each case must turn on its own facts, and the particular relief a defendant seeks is 

but one fact to consider.” Id. We also consider whether there is anything “to suggest that appellant 

deliberately failed to move for a speedy trial because of tactical reasons.” See id. (citing Barker, 

407 U.S. at 534-36); accord Cantu, 253 S.W.3d at 283.

The State argues Lopez “did not assert his right to a speedy trial; instead, he asked for the 

case to be dismissed.” Because dismissal is the only possible remedy for a violation of the right to 

a speedy trial, the assertion of the right to a speedy trial and a request for a dismissal are not 
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mutually exclusive. See Dragoo, 96 S.W.3d at 313. The record establishes Lopez asserted his right 

to a speedy trial in the trial court on August 8, 2017, first by orally asserting his right and then by 

filing a written Motion for Speedy Trial. Lopez’s assertion of his speedy trial right in the trial court 

“is entitled to strong evidentiary weight in determining whether the defendant is being deprived of 

the right.” See Zamorano, 84 S.W.3d at 651.

Lopez first asserted his right to a speedy trial by requesting a dismissal on the date of trial. 

Although such an assertion of his speedy trial right ordinarily weakens a speedy trial claim, the 

record supports an implied finding of historical fact that trial counsel legitimately felt the delay 

had caused so much prejudice that dismissal is warranted, even though the State announced ready 

to proceed to trial. See Phillips, 650 S.W.2d at 401. Lopez was incarcerated on or about April 17, 

2017; he was charged with misdemeanor assault on July 11, 2017, and Lopez remained in jail; at 

the pretrial hearing, the issue of Lopez’s competency was raised before a visiting judge, but no 

competency evaluation was conducted; the trial date was set for August 18, 2017; and Lopez first 

raised his right to a speedy trial on August 18, 2017. The record supports an implied finding of 

historical fact that Lopez did not deliberately fail to request a speedy trial for tactical reasons. 

The State argues a dismissal for denial of a right to a speedy trial is premature when the 

defendant fails to exhaust less drastic remedies, such as a pretrial writ of habeas corpus or a motion 

to reduce his bond under article 17.151. See TEX. CODE CRIM. PROC. ANN. art. 17.151. We agree 

that we must consider whether a defendant who is granted bail ever attempts to secure his release 

on bail. Grayless, 567 S.W.2d at 222. The record in this case shows Lopez was initially unable to 

make bail while the case was filed as a felony case. And after the State filed the misdemeanor case, 

at the pretrial hearing before the visiting judge, Lopez pursued less drastic relief of being released 

from jail on a personal recognizance bond and having his competency evaluated before the trial 

date. The trial court denied the request for release, but then set the trial for only twelve days later. 
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Under these circumstances, we cannot say Lopez’s decision not to pursue habeas relief for a 

violation of article 17.151 significantly undermines his assertion of his right to a speedy trial. 

Considering Lopez’s assertion of his right to a speedy trial in the trial court, we conclude this factor 

weighs slightly against the State. 

D. Prejudice

We next consider prejudice. Barker, 407 U.S. at 530; Hopper, 520 S.W.3d at 924; Wisser, 

350 S.W.3d at 165. We assess this factor “in light of the interests the right to a speedy trial was 

designed 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.” Hopper, 

520 S.W.3d at 924. “Affirmative proof of particularized prejudice is not essential to every speedy 

trial claim because excessive delay presumptively compromises the reliability of a trial in ways 

that neither party can prove or, for that matter, identify . . . and its importance increases with the 

length of delay.” Id. (internal quotation marks omitted). “Extensive pretrial incarceration as a result 

of the pending charges, of course, clearly shows prejudice.” GEORGE E. DIX & JOHN M.

SCHMOLESKY, TEXAS PRACTICE SERIES: CRIMINAL PRACTICE AND PROCEDURE § 28.18, at 685 (3d. 

ed. 2011). 

Lopez was incarcerated for a total of 112 days before trial on a misdemeanor charge for 

which the maximum sentence included jail time of up to 365 days. The trial court considered the 

total time Lopez spent in jail as it relates to the maximum sentence he could have received for the 

offense. As the State acknowledges, any time spent in county jail is unpleasant, to say the least. 

See Barker, 407 U.S. at 532-33 (“The time spent in jail awaiting trial has a detrimental impact on 

the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most 

jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead 

time.”). Lopez also testified he suffered from mental health issues; specifically, that he was 
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diagnosed with anxiety, depression, and bipolar disorder. Edwards v. State, 867 S.W.2d 90, 96 

(Tex. App.—Corpus Christi 1993, no pet.) (considering the state of the defendant’s mental health). 

The State and Lopez’s trial counsel also raised concerns about Lopez’s competence to stand trial, 

suggesting Lopez lacked a rational understanding of the proceedings or the present ability to 

communicate with his counsel. See TEX. CODE CRIM. PROC. ANN. art. 46B.003(a). Thus, the record 

supports an implied finding of historical fact that Lopez’s pretrial incarceration was particularly 

oppressive considering the nature and seriousness of the offense. See Hopper, 520 S.W.3d at 924.

But because there is no evidence of the other prejudice components, particularly the most serious 

component of impairment of the defense, we conclude this factor weighs only slightly against the 

State. See Barker, 407 U.S. at 532. 

E. Balancing the Factors

We agree with the State’s characterization of this appeal, “This is a hard case.” The facts 

of this case are uncommon for speedy trial cases, and most of the Barker factors weigh only slightly 

against the State. As we have explained, the State took nearly three months to determine, from the 

very simple facts of this case, whether it would be more appropriate to charge Lopez with felony 

assault or misdemeanor assault. During those three months, Lopez—who suffers from anxiety,

depression, and bipolar disorder and who might ultimately be incompetent to stand trial—

languished in the county jail, unable to make bail, without being charged. After the State 

determined it would be “more appropriate” to charge Lopez with misdemeanor assault, the State 

sought to keep Lopez in the county jail. A visiting judge then denied Lopez’s request to be released 

from jail. Although the visiting judge ordered a competency evaluation, Lopez was never evaluated 

before trial. As a result, Lopez was in jail for a total of 112 days on a misdemeanor charge for

which the maximum punishment is confinement for 365 days. On August 8, 2017, proceeding to 

trial was not an option, despite the State’s ready announcement. But for Lopez’s Motion for Speedy
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Trial, the trial court’s only option was to further delay this case for competency proceedings. 

Having engaged in the “difficult and sensitive” process of balancing the Barker factors, we 

conclude the factors sufficiently weigh against the State and in favor of upholding the trial court’s 

implied determination that the delay violated Lopez’s right to a speedy trial. See Zamorano, 84 

S.W.3d at 648 (citing Barker, 407 U.S. at 533). 

CONCLUSION

The record supports the trial court’s implied determination that the delay in this case 

violated—or that continuing the proceedings would violate—Lopez’s constitutional right to a 

speedy trial. We cannot construe chapter 46B of the Texas Code of Criminal Procedure, a state 

statute mandating a competency evaluation under some circumstances, as requiring Lopez’s 

continued prosecution in violation of his constitutional rights. We therefore hold the trial court did 

not err “by failing to order a competency evaluation and, instead, dismissing the information 

against [Lopez] less than four months after he was arrested.” Accordingly, the trial court’s order 

is affirmed.

Luz Elena D. Chapa, Justice

PUBLISH