### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00602
- CR

The State of Texas , Appellant

v. Isaac Wesley Brandley , Appellee

FROM COUNTY COURT AT LAW NO. 2 OF COMAL COUNTY NO. 2016CR1824 , THE HONORABLE CHARLES A. STEPHENS II , JUDGE PR ESID ING

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

In Febr uary 2016, appellee Isaac Wesley Brandley was arres ted for assault causing injury/family violence and released on bond

. In August 2019, the trial court grant ed Brandley ’ s M otion to S et A side the I nfo r ma tion based on violations of his right to a speedy
trial

. T he State of Texas then filed this appeal . We affirm the trial court ’ s order granting Brandley ’ s motion

.

STA NDARD OF REVIEW

Both t he federal and state c onstitution s guarantee an accused the righ t to a speed y tr ial. Zamorano v. State , 84 S.W.3d 643, 64 7 (Tex. Crim. App. 2002)

. “ A speedy trial protects three interests of the defendant: freedom from oppressive pretr ial incarceration, mitigation of the anxiety and concern accompanying public accusat i on, and av oida nce of impairment to the accused ’ s defen se. ” Cantu v. State , 253 S.W.3d 273, 28 0 (Tex. Crim. A pp. 2008) . The right to a speedy trial “ attaches once a perso n becomes an ‘ accused ’

— that is, once2

he is arrested or charged , ” and we review a tri a l court ’ s deci sion on a speedy

- trial c laim “ ‘ on an ad hoc basis ’ by w eighing and then balancing the four Barker v. Wingo factors: 1 ) length of the delay, 2) reason fo r the delay, 3) assertion of the right, and 4) prejudice to the accused. ” Id

. ( quoting B a rker v. Wi ngo , 407 U.S. 514, 530

- 32 (1 972) ). “ The Bar ker test is tri ggered by a delay that is unreasonable enough to be ‘ presumptively prejudicial , ’ ” id . at 281 (quo ting Doggett
v. United States , 505 U.S. 647, 652 n. 1 (1992) ), and although t he r e is “ no s e t time ele ment that triggers the analysis, ” id ., court s generally “ de em delay approaching one year to be “ unreasonable enough to trigger the Barker enquiry , ” Dragoo v . Sta te , 96 S.W.3d 308, 314 (Tex. Crim. App. 2003) (quoting Doggett , 505 U.S. a t 652 n. 1 )

.

I n re viewin g a trial court ’ s ruling on a defendant ’ s speedy

- tria l claim, “ we apply a
bifurcated standard of review: an abuse of discretion standard for the factua l com ponents, and a
de novo standard for the legal components. ” Zamorano , 84 S. W.3d at 64 8

. W e we igh th e
str ength of each Barker factor and “ balance [ e] thei r relative weights in light of ‘ the conduct of both the prosecution and the defendant. ’ ” Id

. (quo ting Barker , 407 U.S. at 530 ). No one factor
is a “ necessary or sufficient condi tion ” to f inding a speed y - trial violation, and the four related
factors “ must be considered together along with any other relevant circumstances. ” Id

. (quoting
Barker , 407 U. S. at 533 ). We apply the balancing test

— which , while necessar ily involving fact findings a nd legal concl usions , i s a “ p urely le gal question ”

— “ wi th common sen se and sensitivity to ensure that charges are dismissed only when the evidence shows that a defend ant ’ s actual and asserted interest in a speedy trial has been infringed. ” Cantu , 253 S.W. 3 d at 281

. We defer not only to the tria l court ’ s reso lution of dis puted facts but also to its “ right to dr aw reasonable
inferences from those facts. ” I d . at 282

. T he trial c ourt may disbelieve any evidence so long

as there is a reasonable and articulab l e basis for do ing so , including completely disregard i ng3

uncon tro ver ted testimony based on the court ’ s evaluation of the witne ss es ’ credibility and
demeanor , a nd “ all of the evidence must be viewed in the light most favorable to ” the c ourt ’ s ruling. Id. W h en, as in thi s case, the trial court grant s a motion to dismiss, w e presume that th e court resolved all disputed fact issues in favor of th e defenda nt a nd de fer to a ny findings of fact that the record supports. See id

.

T he State has the burden of just i fying th e dela y, while the defendant must show
his asse rtion of the right and prejudice. Id

. at 280

. “ [ T ] he greater the State ’ s bad faith or official

n eglig ence and the longer its actions del ay a trial, the less a defendant must show actual prejudice or p rove di ligenc e in asserting his right to a speedy trial. ” Id . at 28 0

- 81

. W hether and
how a defendant asserts his right to a speedy trial “ is clo sely r elate d to the other three factors , ”
and his “ assertion of his speedy

- trial right (or his f ailure to as s ert it) is ent itled to strong evidentiary weight in determining whe ther the defendant is being dep rived of the right. ” Id . at
28 2

- 8 3

. Filing for dismis sal i nstead of a speedy trial generally weaken s a speedy

- trial claim
because it “ shows a desire to ha v e no tria l inst ead of a speedy one

. ” Id

. In considering prejudice ,

we bear in mind the interests p rotected by the right to a speedy trial : “ (1) to preve nt op pressive pretrial incarceration, (2) to minimize the accused ’ s anxiety and concern, and (3) to li m it the
p ossibi lity that the accused ’ s defense will be impai red. ” I d . at 285

.

P ROCEDURAL BACKGROUND
2016

- 2017 Brandley was arres ted February 10, 2016 , and re l ea s ed on bond the n ext day

. O n December 16, 2016, he was charged by i nformation wit h misdem ean o r A ssaul t C aus ing B odily
I njury , F amily Violence, s ee Tex. Penal Co de § 22.01(a)(1) , and c ounsel was app ointed in March4

2017

. I n April 2017, Br andley filed a waiv er of arraignmen t stating that he was entering a plea of not gu ilty that includ ed a statemen t that he “ requ est s a speedy trial. ”

201 8
The case was first set for trial on June 12, 2018

. In May 2018, Brandley filed a
motion in limine and a R equest for Notice of S tate ’ s I ntention to Use Evidence of Extraneous
Offenses at Trial. Also in May, the parties agreed to res et the case to a July 17, 2018 jury trial

sett ing

. In June, the State informed Brandl ey of p rior convictions it intended to use , and i n early July, it filed a n o tice of its intention to use certai n prior con victions to enhance the ra n ge of
pu nishme nt

. On July 9, Brandley filed a motion for continuan ce , stating tha t counsel was still
inves tigating , was “ waiting for records to be released , ” and was scheduled t o attend continuing
le g al e ducation July 12 and 13 and would be unable to ade q uately p r epare for trial

. The following day, counsel asked that an investigator be appointed to f ind two potential witnesses , and the court grant ed th e r equest

. On Octobe r 29 , Brandley filed a m otion in l imine and a

m otion seeking to bar the State from m entionin g “ n on
- jurisdictional e n hancement c o un t s , ” and

o n October 3 0, the parties appear ed at a docket call and stated that they were rea dy for trial.
T he case did not proceed to trial , and the record does not reflect the reason for that , but Brandley
and his att orney s igned a form re s etti ng the case for a March 19, 2019 trial date

.

2019 On March 14, 2019, the State filed a motion for continuance, stating that the complainant and her daughter had not ap peared for a sc h eduled meeting with the prosecutor a nd

were not re turning phone calls . The State asserted that the wi tne sses ’ unco op erativeness m ight be due to Brandley ’ s “ wrongful actions ” and said that it intended to file a motion for for f eiture5

by wrongdoing seeking to be allowed to “ admit prior statem e nts of the se w itnesses

. ” See Tex.
Code Crim. Proc. art. 3 8.49 (party to criminal case who “ wrong fully procures the unavailability ”
of witness forfeits right to object to admiss ion of evidence or statements based on witness ’ s unavailability )

. On Marc h 18 , Brandl ey sent the State a letter requesting “ all Brady informatio n applicable in this case, ” including any statements by the complaina nt “ regarding her involvement
in this case and past cases invol ving [Brandley] that may be exc u lpatory or mitigating , ” a n y
state ments b y the complainant “ indicati ng that she d id not want to testify or participate in this or previous proceedings, ” any evidence that the complainant “ has made similar allegations against

ot hers that did not result in arrests or prosecution , ” an d any ev idence that the complainant “ may not have been truthful or credible in past s tatements. ” 1 The prosecutor responded the next day , stating she “ was not awa re of any ex cu lp atory or mitigating statements made by the victim in
relation to her invol veme n t in th is case or any other against ” Brandley other tha n a 2015 ch a rge that resulted in a Non

- Pro sec ution Agreement ( N PA ), which the prosecutor sent to Brandley ’ s attorney . Th e prosecutor also complained that Brandley ’ s requests for information about oth e r alleg ations or for in formation indicati ng t hat the complainant m ay not have been truthful were seeking information “ regarding specific incidents of conduct that would be abso lutely

1 A rticle 39.1 4 imposes on the State a “ general, continuous duty ” to disclose “ any discovery evidence tending to negate the guilt of the defend a nt or reduce the punishmen t the defendant could r ece iv e
. ” Ex part e Martinez , 560 S.W .3d 681, 702 (Tex. App.

— San Antonio 2018 , pet. ref ’ d )

. Brandley ’ s counsel made a formal request for exculpatory material, and the State had an obligation to disclose pos s ibly exculpatory informati on
. See Tex. Code Crim. P roc. a rt. 3 9.14 (a), (h) ( “ as soon as practicable after receiving a timely request from the defendant , ” S tate shall produce information , including written or recorded statements , in its possession, custod y , or co ntrol “ that constit ute or contain evidence ma terial to any matter involved in the action ” ; “ Notwithstanding any other provision of this articl e, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, o r i nform ation in the posses sion, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishme nt for the offense charged. ” )

.6

inadmissible for any purpose. ” 2 T he prosecutor stated that she did not h av e evi dence “ that would
in dicate that the victim may not have bee n truthful or credible, ” nor was she “ aware of any similar allegations against others that did not result in a rrest o r prosecution

. ”

On March 19 , 2019, the case was called, and Bran dley ’ s attor ney annou nced not ready, asking for a continuance because s he had “ received exculpatory evidence yesterday. ” 3 Counsel explained that she had just “ received a Non

- P rosec ution Affidavit t hat her complainant in this case had signed in a previous case ag a inst my client acknowledging that she was mutually
at fault in an assault she previously accused my client of committing. That is absolutely exculpatory and I received it y esterday. This was never turned over by the State to me. ” Counsel
further stated she had spoken to the complaina nt, who told counsel that she “ d id not remember everything in this case. ” The complainant also said she had informed the State that “ she didn ’ t

want t o pro secute this case ” but “ had been told that if she didn ’ t cooperate wi t h th em that sh e would be held in contempt. ” Brandley ’ s attorne y asserted that such information wa s exculpatory

2 The court of criminal appeals has stated that although the State “ usually d oes n ot have a duty to tu rn over inadmissible evide nce, the analysis might not end t here , ” citing Fifth Circuit cases holding that “ if inadmissible evidence would give rise to the discovery of other admissible evidence or witnesses, the State does have a d uty t o disclose that evid ence. ” Ex p arte Miles , 35 9 S.W.3d 647, 669 n.22 (Tex. Crim . App. 2012) (citing United States v. Brown , 650 F.3d 581, 588 (5th Cir.2011) ; United S tates v. Sipe , 388 F.3d 471, 485 (5th Cir. 2004) ; Sellers v. Estelle , 651 F.2d 1074 , 1 077 n

. 6 (5th Cir. 1981) )

.

3 In its briefing, the State asserts that it “ withdrew t he Motion for Continuance and announce d Rea dy ” at the March 19, 2019 trial setting . As support for that assertion , it cites the reporter ’ s record from the hearing on B ra n dley ’ s motion to dismiss. In that hearing, the pros ecutor , in arguing that the delay in the case should be viewed as mo re Br andley ’ s fault than the State ’ s, asserted that “ the State never filed

— there is a filed Motion for Continuance, but on that day of M arch 19th, 2019, the State was, in fact, ready. We had settled that prior to. ” Howe ver, the record does not indicate t hat t he State withdrew its motion, eit her by motion or verbally at the March 19 setting , or that it announced “ ready

. ” The State ’ s moti o n wa s not mentioned in th at hearing, in which Brandl ey ’ s attorney made a verbal moti on for continuance because she had “ rece ived exculpatory evidence yes terday. ”7

but had not been disclosed . She also said that she had asked “ about that and the State vehemently
denies these occurrences. ” Counsel went on t o st ate that s he had spoken to the complainant ’ s husband and “ f

ound out she ’ s called the police on him in New Braunfels with New Braunfels police numerous times alleging he ’ s assaulted her, which has never resulted in an arrest or
conviction. ” Couns el ha d als o learned that the complainant “ sought a protective order t hrough this district attorney ’ s office against her current husband, but soon

- to

- be ex
- husband and that

. . . it was later determined it was not factually based and she had not been cred ible or trut hful , ”
lea ding t he prosecutor to “ drop [] that protective or der against him

. ” Counsel asserted that the
Sta te should be considered t o know about the repeated police rep ort s and the dropped protective
order and that the information in dicated that the c o mpla inant “ had not been honest o r truthful about allegations of assault ag ainst other persons. ” The prosecutor responded that she had

“ received a request last night at 5:3 0 i n the evenin g ” from defense counse l and that she had provided the NPA and a poli c e re port from the 2015 case “ in an abundance of caution

. ” The trial

court agreed to continue the case and said , “ [W] e ’ ll rese t it on the next docket. ”

On April 18, the S tat e filed a motion in limine. On A pril 23, the parties appeared
for a third trial sett ing , and B randley ’ s attorney asked the trial court to ex clu de recordings of 135 jail calls that the State had just turned over to her “ the week before

. ” Counsel noted th at Brandley had been released from jail “ back in 2016 ” and that the recordings ha d thu s been

acc essible by the State since then. Asked why Brand ley had not gotten the tapes earlier,
the prosecut or said that she had not accessed the tapes until the day they were turned over and
had not yet listened to all of them. She also said that b e caus e the comp lain ant was being uncooperative , she did not know if she would seek to use them at t rial , saying , “ If I have to

move forward with that Forfeiture by Wrongdoing because my victim doesn ’ t show up I ma y8

have t o use those calls. ” 4 The trial cou r t sa id, “ This is the second hearing and it seems we
have had so mething like this before. ” The State offered to r ese t the trial, and Br andley ’ s attorney responded :
Frankly, Your Honor, that puts me in a difficult position. My client wants to go forward. I ha ve a witn ess that I have got under subpoena who intends to move out of state this summer. If this keeps gett ing bumped I ’ m going to lose a witness. This is going to absolutely harm this case. We are asserting our right to a speedy trial. We ’ ve co n tinue d to asse rt our right to a speedy trial.

T he tria l court said it would rese t the case to be th e first case on May 28, 2019, and counsel responded , “ [O]ur other concern is we intend to go to Cou rt for punishment and honestly we would prefer to go to t h is Court for p unishment instea d of a visiting judge. ” The tri al court then
stated that its next jury trial woul d n ot be until July , and counsel sa id , “ Your Honor, because of
the situa tion I would ask that the Court to let us proceed at this time. ” The c o urt said, “ I

a ppreciate that. This is the last time that I wi ll do it , ” and counsel replied , “ I would like to t alk to
my client to see if he would rathe r wait until the July setting. It may be a situation where we will
hav e to fly the witness back. ” Th e tr ial court c losed th e d iscussion by saying, “ The hearing

wou ld start on [July] 8th or the 9th. If you want to ta lk to him that ’ s fine with me. I was just trying to get you heard as so on as possible. ”

I n late June 2019, the State filed a M otion to E x c lud e Witness T estimony, a nd
Bran dley filed a motion for discov ery of arre st and conviction records of the State ’ s w itnesses , asking the State to be order ed to examine the records of its l o cal law

- enforcement agencies, the
Texas Crim e Information Center, a n d t he National Crime Information Center. On July 2, 2019,
the trial court called the case for pretrial motions , no ting that th e case was set for trial the

4 It does no t appear that the St ate filed a motion for forfeiture for wrongdoing ; th at motion wa s only referenced as a possibility in the State ’ s motion for continuance

.9

following week , and s igned ord er s granting several of the motions

. On July 8, 2019, when the

case w as called, Bra ndley ’ s attorney said that on July 5, the State had turned over “ 107 pages
of additional dis covery, some of which [she] believ e[ d] is exculpatory , ” including in formation
about a fo u rth man that the complainant had accused of assault family v i ole nce. Couns el stated
that the State had to have been aware of the information b ecause it had filed a n N PA in

“ the three cases against ” th at man

. She also noted that in Ap ril, the St ate had disclosed the jai l
calls “ the week of jur y announcement , ” requ i rin g that the case be reset, and that the trial court

“ admonis hed the State that they cannot continue d oin g this. ” Counsel said:

This has b een t he third time now that there has been evidence that has been withheld twice, at least that had been exculpator y an d here we a re set for trial. The Court has informed us in chambers that he will continue the case o ne more time

. I have filed, or I am filing this morning, a Motion to S et Aside Information for failure to afford my client ’ s constitutional right for a s pe edy trial. Your Honor, he was arrested back in February of 2016 for this case. Subsequently he was ch arged, I bel ieve, in December of 2 016. We filed a waiver of arraignment in this case, Your Honor, April 18th, 2017. In that waiver of arraignment we re quested a sp eedy trial of this case.

Counsel noted that “ on e major witness ” had moved to F lorida and wo uld have to testify by
video call, sayin g “ that is still a hindrance to th is case not hav ing that witness available to testify
in person. ” In addition , s he noted , “ o ne of his other wit nesses is no w in TDC. ” The pro secutor responded that she did not think Br and ley would be able to use the recen tly disclosed
information because it would be improper impeachment evidence. T h e prosecutor also stated
that B r an dley ’ s attor ney had subpoenaed records from law en forcement on July 5, 2019 ; that the
State “ had no knowl edg e of [the re c ord s ’ ] relevance ” ; tha t the State “ ran a search f or ever y time the victim has cal led 911 ” ; and that the records were “ immedi ately e

- m ai led ” to Bran dley.
The trial court con tinued the case and s t ated tha t it would set Brandley ’ s M otion to Set Aside10

the Information for a later hearing , noting, “ If you have subpoenaed somebody that has not previously been on radar from the State, then don ’ t be surprised i f you get re cords about that
person otherwise. ”

On Au gust 14, 2019, the court held a hearing on B ran dley ’ s motion and noted that

t he alleged offense took place in F eb ruary 2016, saying, “ So , we ’ re actually looking at three

and

- a
- half yea r s. ” Brandley wa s called to testif y, and he agreed that he had been charged about
ten months aft er the allege d offense ; he had “ been prepared to go to trial three tim es ” ; “ there has
been incidents as far as evidence being turned over from the State that h a ve prevented tha t from going to trial those three times ” ; and the delay had preju diced his case. B ra ndley said that he was required to r eport to his bonding agent regular ly, explaining that at the be ginning of the case he had to report weekly and that it was now monthly , and that he had come to court ten or tw elve
times . He sai d that he had been se eki ng employment and had been turned down because of t he pending charge , testifying that several would

- be emp loyers had told him “ they want [ Brandley ]
to be do n e with [his] le g al issues be fore they hire [him] o n
. ” He also provided the n ames of
several of the businesses wi th which he had applied

. The State asked Brandley if he wanted a
trial and was ready to proceed t he next day , and he answered, “ Yes

. ” As ked w hether he was
ho ping for a t rial from the beginning , he said, “ Not really. I was just hoping that it wo uld have
been over with by now

. ”

Br andley further testified that one of the witnesses he inte nded to call had moved
to Florida and that a lthough the t rial court had b een willing to arrange for that witness to testify through a video call, Brandley belie ved it would have bee n more beneficial for that witness to testify in person
. In addition , one of his other witnesses was incarcerated and would have t o testi f y “ as a p rison i n mate

. ” B randl ey testified about what information t he two witnesses would11

be ab le to provide, explaining that the Florida man had been married to the complainant in the past , “ communicated a lot ” with her , “ knows of her and her act i ons and how she can be , ” and
knows that Brandley and the complainant had “ s tayed together

. ” T he incarc era ted witness had
been present dur ing several “ in stance[s] ” between Brandley and th e complain an t and a few times

“ had to come pick [Brandley] up to get [him] from over there. She actually followed [Brandley]

to [the witness ’ s] house and bust his back win dow o ut of his truck. ” Brandley said he was

concer ned that the jury would “ view [that witne ss ’ s] testimony as being irrelev ant . . . b y him being incar c erated. ” In clo sing , B r andl ey ’ s attorney argued :

Based on evidence before t he Court you can see my cli ent w as arrested back in February 2016. We requested a speedy trial back in April of 2017. . . . [T] h at length of delay is

. . . presumptively prejudic i al

. . . . No d elay or no r easons have been put forth by the State for thi s delay.

. . . Each of thos e hav e been due to some sort of fault on part of the State.

. . . I found out the day before [ the March 2018 trial setting] that there had been a previ o us case against my client wh erein the State dismissed those charges. They were dismissed due to a Non

- P rosec ution Affidavit by the same co mplainant. At which point I notif ied the State that was clearly exculpatory and had not been disclos ed. The State t hen later that d ay turned ov er their NPA where the victim did indicate she was mutually at fault, which is ab solutely exculpatory and had n ot been turned over. The Court th en granted a continuance based on that so we could further evaluate that.
T hen we h ad our next sett ing which wa s in April, the next month. At that point the State turned over 135, I beli eve, jail calls

. . . . Those were turned over I believe at docket call or the day before d ocket call for trial. And once again at that point I told t he Court we want ed to go for ward with trial. W e urged the Court to just st rike t hose and not allow the State to put those calls into evidence so we could go forward. The Court at that point granted another continuance and urged the State not to turn ove r any more eviden ce that they discovered. Then we had another setting in Jul y, Your Honor, this last sett ing w here we

— again, I issued two subpoenas before that date. One was for [the in carcerated witness] and one was to the New Braunfels Police Department requesting all r ecords invol ving this complain ant.

. . . And shortly there after turned over, I believe i t was ri ght before docket call, again 107 pages of evidence which also revealed that this complainant had accused another man
. . . of assault against her subsequent t o my client ’ s arrest. Those cases had been rejected by the State. I believe they were N PA ’ d by the State.12

So, again, that would be exculpatory evi dence if this complainant has made other allegations and then either recanted or the State d id not believe t hose and dro pped those cases. The C ourt, on your own motio n, granted another continuance

. Ov er a month passed or approximately a month passed, and you can see that in the last set of Defense Exhibit 4 where I had to contact the State say i ng I still had n ot received any of the records they were going to turn over it had been approximately a m onth. At which point I received those records involving

— act ually I received the NPAs that are interoffice so I had no access t o them

. . . . It said t here was nothing exculpatory of them. Then right after that I received a n otice of where the victim agai n cla imed this com plainant acknowledged she had not been a victim of family violence, w hich is clearly exculpatory. I said, well, if you have got thi s then she must h ave made sta tements to that affect, which I was told there are numerous videos. I was to ld th is morning th at those videos are now ready for me , which is even more evidence and that is exculpatory in nature and should have been turned over months and month s, if not ov er a year ago. I believe the incidents involvi ng the third or fourth alleged assa ult happened back in September 2018.

. . . If you look at the letters from the State in response to my request for information you will see that in the very firs t letter tha t I received from the State that was, I suppose in response to my request for exc u lpa tory and Brady evidence that was dated March 19th, 2019, the State asserts

. . . I am not awar e of any similar allegations against others that did not result i n arrest or prosecution. Since that time we found out that there ’ s at least two others t hat w ere in their office that they absolutely would have had kno wledge of and we did not receive u ntil

— well, frankly, I ’ m still receiving

—have not rec e ived yet.
At thi s point I wo uld assert that my client has been denied his r ight to a speedy trial. He ha s pro ved that he has been prejudiced by that denial of that righ t due to the State ’ s fault and I w ould ask that his case be dismissed

.
The prosec uto r responded that the record s hows “ various amounts of agreed to resets pre tr ial. ” She further stated that the State had been ready to proceed on March 19, 2019,
that it was Brandley ’ s attorn ey w ho had so ught a continu ance to review discovery , and that
Bra n dley ’ s attorney had also fil ed another motion for continu ance b ecause she h ad to attend a CLE. The pro se cutor argue d, “ As far as each setting I would argue that that should not be counted against either party , ” and stated that the re were se v eral trial da t es available “ pr ior to
Octob er w hich the State would be ready for. ” As for the discovery issues , the pro sec ut or said :13

Each a nd every time I became aware of new information it was turned over to [Brandley ’ s attorney]

. I do understand that it was turned o v er relatively cl ose because that is when, like she said, with the subpoenas for Mr. Peavyhouse and NBPD, that is when I began that in vestigation. But immediately as soon as I found out I turned it over.

. . . As far as the prejudice I woul d argue that [ B randley] has not shown any u navailability of witnesses. I would like to su bmit to the Cou rt different case law regarding the prejudice of employment. And finally for the assertion of the right to dismiss for a speedy trial [Brandley] has filed a Motion t o Dismiss as o pp osed to a Mo tion For A Speedy Trial, which there ’ s plenty o f case law th at suggests

— tha t wei ghs heavily against the Defense.
A second prosecutor asserted that none of the discovery is exculpatory be cause wh ether the compla inant had made ot h er accusation s that had been dismissed was “ patently irrelevant and
immat erial to the charge before u s and inadmissible

. ” He argued , “ I don ’ t believe that the State ’ s efforts to comply with [counsel ’ s] continued requests and give her more inform ation as s he ’ s requested information s hould in any way be held against the State fo r speedy trial reasons. ”

DISCUSSION
Whether a delay provoke s a speedy

- trial inquiry depend s on the circ umstances of

t he case. Zamorano , 84 S.W.3d at 648

- 49 ; State v. Davis , 549 S. W .3d 688, 697 ( Tex. App.

— Aust in 2017, no pet. )

. “ The nature of the charge d offense is considered

— for instance, ‘ the delay that can be tolerated for an ordinary street crime is co nsiderably less than for a serious, complex conspiracy charge. ’ ” Davis , 549 S .W.3d at 697 ( quoting Zamora no , 84 S.W.3d at 649 )

. And

“ the presumption that p retrial delay has prejudiced a defendant intensifies over time. ” Id

.

1. Length and Cause of Dela y

T he forty

- two

- month delay in this case stretch ed well past the eigh t

- to twelv e
month trigger point gen eral ly employed in speedy

- trial analyses

. S ee Do ggett , 5 05 U.S. at 652
n.1 ( courts “ have generally found postaccusation delay ‘ presumptively prejudi cial ’ at least as it14

approaches one year ” ) ; Zamorano , 8 4 S .W.3d at 656 ( “ eight mon t hs to a year h as generally b een considered the minimum to trigger a speed y trial analysis ” ) . T he first factor

— the length of the delay

— weigh s heavily against the State

. S ee , e.g. , Dragoo , 96 S.W.3d at 314 ( three and on e
half year de lay “ stretched far bey o nd the minimum needed to tri gger the [spee dy

- trial ] en quiry ”
and thus “ we i gh[ed] heavily in favor of finding a violation of the speedy trial right ” ); Zamorano , 84 S.W.3d at 6 4 9 ( “Because the length of the delay stretched well beyond the bare minimum
neede d to trigger jud icial examinat ion of the [speedy trial] claim, this factor

— in and of itself

— weighs he avily against the State.” ). We now consider whether the S tate carried its burden of justify ing the delay

. See Cantu , 253 S.W.3d at 28 0

- 8 1 ; Dragoo , 96 S.W

. 3d at 314

.

T he record does not reflect why it took about ten months fo r Brandley to be charged after his February 2016 arrest , and that time t hus weighs against the State , although no t
heavil y
. See Cantu , 253 S.W.3d at 28 0

- 8 1

. The record contains nume r ous Case Res e t Forms

stret chi ng from March 2017 th r ough July 2019

. Thos e resets are not explained, and t h e forms do not indicate that they were instigated by Brandley , only that they were agreed. We thus vie w th at period of delay in a mostly neutral lig h t, weighing i t only slight ly ag ainst the State

. Se e id.
The record als o contain s Brandley ’ s motion for continuance of the July 1 6, 2018 trial setting, explaining that counsel was “ still in the process of investigation and [was] waiting for r ecords

to be r eleased

. ” S he also state d th a t she was sche duled to atten d co ntinuing legal education on July 12 and 1 3 and would be trav el ing on the weekend before the trial setting. We therefore weigh the interval between July 10 , 2018, and Oc tober 30, 2018, a gainst B randley.

As for the remaini ng delay , when d efense counsel sought a second cont inuance at
the Mar ch 19 , 2019 jury announc ement hearing , she explained that she had received exculpatory
evidence from the Sta te th e day before. She also complained that the S tate had n ot produced15

other e xculpatory evidence that they had or sho uld hav e been aware of , asserting that the complainant had told her she did not want to prosecute the case and did not remember everythin g abo ut the incident ; that the complainant’s soon
- to

- be

- ex
- h usband had alleged that the complainant had made false repo rts of assau lt against him ; a nd that the district attorney ’ s office had dropped a protective order request by the comp lainant a gainst her husband because the complaina nt “ had not been cr e dible or t ruthful. ” Then, i n the July and August hearings , counsel

a sserte d that the State had continued a similar pattern of turn ing over evidence mere days before
the scheduled hearings

.

A lthough the State asserts in its brief t hat it had a “ valid re a son ” for each complained

- of l ate disclosure , t he record indicates t hat t he trial court , while bei ng fairly sympathetic to the State , s eemed to attribute much o f the delay to the State . F or instance, the

court agree d in April 2019 that defen se counsel cou l d not be expected to proceed to trial without

assurances that the r ec ently prod uced jail

- call recordings woul d not be used

— a concession the
State refused to make at the time . I n the hearings, the court made state ments seem ing to in dicat e

some frustration with the State , such as , “ Thi s is the second hearing and it seems w e have had something like this before , ” “ This is the las t time that I will do it , ” or , “ I kee p doing it. I keep doing it. ” T he trial court could have concluded that a substantial portion of the d elay between
October 201 8 and July 2019 was due to the Stat e ’ s late disclos u re of evidence and weighted the
first two Barker factor s heavily in Brand l ey ’ s favor. See id

.

2. Assertion of Speedy

- Trial Rights

As for Brandley ’ s asser tion of his right to a spe e dy trial , he did not file a motion for speedy trial and in stead merely included a p ro forma request for a speedy trial in his Waiver16

of Arraignment , f

i led in April 2017. See State v. Munoz , 991 S. W.2d 818, 826 (Tex. Crim. App. 1999) ( defendant ’ s “ pro for ma request for a tria l date in the waiver of arraignment fo rm cannot
be considered an assertion of his right to a speedy trial under the circumstances o f this case ” )

. However, i n addition to that pro forma re quest , his attorney announced ready for trial o n October 30, 2018, Ap ril 23, 2019, and Jul y 2, 2019 , and s he expressly invok ed Brand ley ’ s right

to a spee dy trial in the April 2019 pretrial setting

. I n July 2019 , when the State again produced evidence shortly before the trial se tting, counsel s t ated th at she was going to fi le a motion to set
asi de the information on speedy

- tria l grounds

.

B r andley never filed a written motion specifically demanding a sp e edy trial

. See
Henson v. State , 407 S .W.3d 764, 769 (Tex. Crim. App. 2013) ( “ A speedy

- trial demand shou ld be, at th e very leas t, unambi guou s. ” ) . However , counsel did unambig uously invoke Brandley ’ s speedy

- trial righ ts in the April 2019 pre trial setting o nly to have trial continued because of the
State ’ s late production of the jail

- call recordin g s . She then again rece ive d additional evidence just before the July 2019 setting

. T he greater the State ’ s “ official negligence and the longer its
actions del ay a trial, ” the less a def endant must show actual prejudice or diligence in asserting
his speed y - trial right s
. See Can tu , 253 S.W.3d at 28 0

- 81

. Thus, we weigh the third Ba r ker
factor as ne utral or sligh tly against Brandley

.

3. Prejudice

Finally, we con s ider whether Brandley established pre judice. The right to a speedy trial was designed to prevent oppressive pretrial i nc arceration, to minimize a defenda nt ’ s anxiety and concern , and to limit the possibility that the defense will be impaired. Gonzales v

. State , 435 S.W.3d 801, 812 (Tex. Crim. App. 2014) ( quoting Barker , 407 U.S. at 532 )

. O f those17

i n terests, t he last “ is t he most important becaus e the f airness of the entire crimin al

- justice system is distorted when a defendant is unable to adequately pre p are his defense. ” Id

. T he State asserts
that we should determine “ that there w as no actual, par t icularized prejudice to [Brandley ’ s] case ”
beca use of the delay , but “ a ffirmative proof of particularized prejudice is not essential to every speedy trial cl a im, because ‘ excessive delay presumptively compromises the reliability of a trial in ways that ne i ther party can prove or , for that matter, ident ify. ’ ” Dragoo , 96 S.W.3d at 315 ( q uoting Doggett , 505 U.S. at 655 )

. This case linge red for forty

- two months , a nd given the
nature of the misdemeanor

- assault charge , the trial court could reasonably have con c luded that
the delay wa s exc essive en ough to be pre sumptively prej udicial , s ee Z am orano , 84 S.W.3d

at 648

- 49 ; Davis , 549 S.W.3d at 697 , 5 requir i ng Brandley only to show “ some prejudice , ” s ee Hopper v. State , 520 S.W.3d 915, 924 (Tex. Crim. App. 2017) ( pro o f of particularized pre judice
is not al ways ess ential to speedy

- trial claim ); see also Davis , 549 S.W.3d at 697 ( presumption
that delay prejudi c ed defendant “ intensifies over time ” )

.

Brandley was released on bail soon after his arrest in February 2016 a n d thus

was not subjecte d to o ppressive pretrial incarcerat ion . H owever, he testif ied that he had been required to report weekly and the n monthl y t o his bonding agen t ; that he had come to court “ over 10, 12 times ” ; that he had been prepared to proceed to t rial for the last th ree settings ; that havi ng
t o appear in court that often “ impac t [ed] [his] a bility for maintaining full employ ment ” ; that

5 C ompar e Doggett v. United St ates , 505 U.S

. 647 , 654

- 58 (1992) ( delay of eight and one
- half years was presumptively prejudicial), and Guajardo v. State , 999 S.W.2d 566, 570 (Tex. App.

— Houston [14th Dist.] 1999, pet. ref ’ d ) ( delay o f five years was presumptively p rejudicial), with State v. Wray , No . 05

- 01

- 01799

- CR, 2002 WL 1763567, at *4 (Tex. App.

— Dallas July 31, 2002, pet. dism ’ d) ( op., not designated for publication) ( delay of t w enty

- five months was not presumptively prejudic ial), and Clarke v. State , 928 S .W.2d 709, 717 (Tex. App.

— Fort Wort h 199 6, pet. ref ’ d) ( no presumptive prejudice where delay in retrial was twenty

nine months after Supreme Court denied certiorari and five mo n ths after appellant filed motion for speedy ret rial)

.18

se v eral companies had said they would not hire him “ until this case was over with ” o r until he

was “ done with [his ] legal issues ” ; a nd tha t the lingering charg e a nd its det rimental effect on his

em ployability had caused him and his family hardship and stress

. This testi mony is suffi ci ent to support a finding that Brandley had suffer ed at least a moderate level of anx i ety and concern due

to the pending charge

. See Z amorano , 84 S.W.3d at 6 52

- 54 (def endant missed eleven days of
work because of court dates , mis s ed work for weekly report s to bonding company , and was worried every time he came to court ; c ourt of criminal a p peals held that testi mo ny, which was unchalleng ed by St ate, was “ at least some evi dence of the type of ‘ anxiety ’ that the Supreme
Court conside r s under the prejudice prong of Barker ” )

.

In addition , Brandley testified that his ability to put on a defense had been
harmed

. One witness would have to tes tify from Flori da via video call, which Brandley believed
would reduce th e witness ’ s effectiv eness . A nother witness had been incarcerated and would
have “ to come testify from prison, ” and Brandley thought th e jury would be less l ikely to believe

t h e witne ss as a result

. The State conten ds that Brandley did not show that eithe r man was a material witness or that their testimony would be a dmissible , but although e vidence of person ’ s

c haracter or bad act s is ge n erally not admissible to prove tha t the person acted in accor dance
with the ir ba d character , such evidence may be admiss i ble for purpose s “ such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

a cci dent. ” S ee Tex. R

. Evid. 404

. Further , i n a criminal case, a defendant may offer evidence of

“ a victim ’ s pertinent t rait, ” subject to certain limitations not applicable here , i d. R. 404 (a)(2)(A) , and a witness ’ s credibility may be attacked by testimo n y about the witness ’ s reputation for being

untr uthful or “ by testimony in the fo rm of an opinion ab o ut that character , ” i d . R. 608(a)

. A defendant may also impeach a witness “ with evidence of a previous false accusation against a19

third party ” if , “ as a t h reshold evidentiary m atter, ” he can “ produce ev idence showing the prior accusati on is actually false

. ” Palmer v. State , 222 S.W.3d 92, 95 (Tex. App.

— Houston [14th Dist.] 2006, pet. ref ’ d)

. Brandley stated that the two witnesses would testify about the

c o mplain a nt , her violen t tendencies , “ ho w sh e can be, ” and that she and Brandley h ad stayed together after the alleged assault

. Brandley ’ s attorney asserted that she had l earned about

s tatements made by the complainant that were exc ulpatory to Brandley , as well as about other

c harge s made by the complai na nt that were later dismissed by the State. The trial court could
have determine d that Brandley ’ s two witnesses could have offered admissible evidence that
would be material to his defense. 6 See Balderas v

. State , 517 S.W.3d 75 6, 773 (Tex. Crim. App.
20 16) ( determining that prejudice p rong “ arguably wei gh s in favor of ” defendant; noting that
defendant had test ified at speedy

- trial hearing that bro ther committed suicide during de lay but
could have test ified a bout alleged sexual a buse suffered by defendant ; but declin ing to consider
that asserted testimony because “ when the trial court made its ruling, the sexual nature of abuse
was not before it ” and that “ was not at issue before the trial cour t ” )

.

In grant i ng the mo t ion to set aside the information , t he trial court impliedly found
that Brandley had been prejudiced by the delay , a nd Brandley ’ s testimony c ould support a finding of prejudice in the form of reduced employment oppo rt unit ies , stress and anxiety, a nd impair ment of his a bility to put on a n effec tive defense

. See Cantu , 253 S.W .3d at 282 ( w e must

6 The State further conte nds that Brandley cannot show he su ffere d prejudice related to those witnesses because he did not show either man was unavailable due to the delay , citing George v. State , 498 S .W. 2d 202, 205 (Tex. Crim. App. 1973)

. Brandle y, however, did not assert that the witnesses had become unavailabl e but rather that the ir testimony would be le ss effective due to changed circumstances , and w e cannot hold as a matter of law that the trial c ourt would have erre d in agreeing that Brandley had show n some prejudice

. See Tex. R. E vi d. 609 (evidence of criminal conviction may be offered to attack witness ’ s character for truthfulness if crime was felony or in volved moral tur pitude ).20

defer to tria l court ’ s resolution of disputed facts and to any reasonable inferences that ca n be drawn from facts , viewing evidence in light most favorable t o court ’ s decision )

. We next
consider whether the S tate persuasively reb ut ted the presumption of pre judice or prov e d that Brandley acquiesced to the delay so as to vitiate his claim

. S ee Gonzale s , 435 S.W.3d at 815

.

As noted above, although some o f t h e delay early in the case can be attri buted to Brandley, a significant portion o f the delay , particularly af ter the case was set for trial in October 2018, was related to the S tate ’ s repeated late production of possibly e xc ulpatory evidence. And
altho ugh B randley ’ s attorney s igned several r es et forms as “ agreed, ” the record does not re flect
the reason for the resets or whether Brandley ’ s counsel sought the res ets or merely signed the
reset forms when informed by the trial court of a new setting

. Furth er, B randley appeared and announced ready several t imes, asking to go fo rward with t he cas e and invoking his right to a speedy trial in April 20 19, when the State turned over hours of recorded jail calls mere days before the trial setting despite Brandley ’ s h a vin g been release d on b ond mor e than three year s earlier. The record does not r eflect t hat Brandl ey acqu iesced in the delay such that the trial court

was required to conclude that his cond uct vitiated his showing of preju dice.

“ [C] onsideration of prej u d ice is not limited to the specifically demonstr able , ” an d given the length of de lay in this case, the State ’ s negligence is not “ automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him

. ” Doggett , 505 U.S. a t 655

- 57 ; see also Gon zales v. State , No . PD

- 072 4

- 12, 2013 WL 765575, at *1 (Tex. Crim. App. Feb. 27, 2013) ( op. , not designated for publication) ( c ourt of a ppeals “ should have reviewed the record not for proof of prejudice but rather the rebuttal or exten u ation of prejudice ” )

. Fur ther, Brandley pre sente d s o me evidence of p rejudice , and th e State did not
pers uasively rebut his prima facie showing of prejudice. We overr ule the State ’ s issue on appeal.21 CONCLUSION Having overruled the State ’ s issue, we aff i rm the trial court ’ s order grant ing Brandley ’ s M o tio n to Set Asi de the Information.

__________________________________________ Darlene Byrne , Chi e f Justice
Before Chief Jus tice Byrne, Justices Ba ker a nd Triana
Affirmed
Filed: August 6, 2021
Do Not Publish