In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-22-00172-CR

___________________________

On Appeal from the 355th District Court

Hood County, Texas

Trial Court No. CR15272

Dissenting Memorandum Opinion by Justice Wallach

DANIEL YOUNGBLOOD, Appellant

V. 

THE STATE OF TEXAS
2

DISSENTING MEMORANDUM OPINION

Because I do not believe that the delay in this case was presumptively 

prejudicial, as held by the majority, I respectfully dissent. The Sixth Amendment to 

the United States Constitution and Article I, Section 10 of the Texas Constitution 

provide for the right to a speedy trial in a criminal prosecution. State v. Lopez, 631 

S.W.3d 107, 113 (Tex. Crim. App. 2021); see U.S. Const. amend. VI; Tex. Const. art. I, 

§ 10. The first inquiry in a speedy trial analysis is whether the delay between the time 

the defendant is formally accused or arrested to the time of trial “has crossed the 

threshold dividing ordinary from ‘presumptively prejudicial’ delay.” Lopez, 631 S.W.3d 

at 114. However, there is no constitutional test quantifying the number of days or 

months to determine exactly when that dividing line has been crossed. Id. at 114. As 

expressed by the court in Lopez, 

Indeed, the length of delay that will provoke an inquiry into the 

speedy trial factors “is necessarily dependent upon the peculiar 

circumstances of the case.” Zamorano v. State, 84 S.W.3d 643, 648–

49 (Tex. Crim. App. 2002) (quoting Barker [v. Wingo], 407 U.S. 

[514,] 530–31, 92 S. Ct. 2182[, 2192 (1972)]). Such circumstances 

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 519–20, 92 S. Ct. [at 2186–57]. And “the 

delay that can be tolerated for an ordinary street crime is 

considerably less than for a serious, complex conspiracy charge.” 

Id. at 531, 92 S. Ct. [at 2192]. Deliberate delay to hamper the 

defense weighs heavily against the State, while more neutral reasons 

like negligence or overcrowded courts weigh against the State but 

less heavily. Hopper [v. State], 520 S.W.3d [915,] 924[ (Tex. Crim. 

App. 2017)].

Id.
3

Lopez was originally arrested for the felony offense of causing bodily injury to 

an elderly person. Id. at 110; see Tex. Penal Code Ann. § 22.04(a). He spent 112 days in 

jail with the charge being reduced to a Class A misdemeanor after 85 days. Lopez, 631 

S.W.3d at 110. The trial court granted Lopez’s motion to dismiss the charge on 

speedy trial grounds. The court of appeals affirmed the dismissal, but the Court of 

Criminal Appeals reversed. Id. Among other holdings, the Court of Criminal Appeals 

held that the 112 days, under the facts of the case, did not raise a case of presumptive 

harm sufficient to require further analysis. Id. at 115. 

In State v. Elizondo, No. 04-21-00489-CR, 2022 WL 3047103, at *1 (Tex. 

App.—San Antonio Aug. 3, 2022, no pet.) (mem. op., not designated for publication), 

Elizondo was charged with a Class A misdemeanor offense of driving while 

intoxicated. Seven months elapsed from the date of his arrest until his charges were 

dismissed on speedy trial grounds. The State appealed, contending that the sevenmonth time frame was not presumptively prejudicial, which the court of appeals 

sustained. Id. As part of its analysis in reaching its conclusion, the court quoted from 

LaFave,

“While some courts still follow the eight-month mark or even 

something shorter, most have settled on a somewhat longer period, 

such as nine months or, more commonly, a time ‘approaching,’ at, 

or slightly (or even more than slightly) beyond one year.” 5 Wayne 

R. LaFave, et al., Criminal Procedure, § 18.2(b), p. 130 (4th ed. 

2015) (footnotes omitted).2
4

Id. at *2. In its footnote 2, the court noted that the Court of Criminal Appeals had 

cited an earlier edition of this treatise when noting that courts generally hold that an 

eight-month or longer delay is “presumptively unreasonable.” Id. at *2 n.2 (citing 

Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992)). However, the Harris

court was actually presented with a thirteen-month delay, which it assumed was 

presumptively unreasonable in its analysis. Harris, 827 S.W.2d at 957. Regardless, 

LaFave now notes that the trend is toward longer delays, akin to the delay in this case,

being necessary to reach the “presumptively unreasonable” threshold.

Here, we have two potential start dates for the “speedy trial” clock. 

Youngblood was arrested on the misdemeanor charge on April 29, 2021. Using that 

starting point, the resultant delay would have been 438 days, clearly within the 

“presumptive delay” authorities. However, that date is not a proper date to utilize to 

start the clock. Stone v. State, No. 08-16-00343-CR, 2018 WL 1737076, at *4–6 (Tex. 

App.—El Paso Apr. 11, 2018, pet. ref’d) (not designated for publication). Nothing in 

the record indicates that the misdemeanor charge was ever prosecuted, and it is not 

the subject of this appeal. The right to a speedy trial attaches when a person becomes 

an “accused,” meaning when he has been arrested or charged by indictment or 

information. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008); Elizondo, 

2022 WL 3047103, at *1. Youngblood was not arrested on the felony charge until 

August 28, 2021, resulting in a much shorter ten-and-a-half-month delay. Given the 

recognized trend of courts of increasing the threshold delay for “presumptive 
5

unreasonableness,” I would hold that there was no “presumptively unreasonable”

delay in this case, and I would vote to affirm the judgment of the trial court.

/s/ Mike Wallach

Mike Wallach

Justice

Do Not Publish

Tex. R. App. P. 47.2(b)

Delivered: July 13, 2023