## In the Court of Appeals Second Appellate District of T exas at Fort Worth

___________________________ No. 02

- 22

- 00172

- CR

___________________________

On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR15272

Dissenti ng M emorandum Opinion by Just ice Wallach 

### D ANIEL 

### Y OUNGBLOOD 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 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 A mend ment to the United States Constit uti on and Article I , Section 10 of the Texas Constitution provide for the right to a speedy trial in a criminal prosecution. State v. L opez , 631 S.W.3d 107, 113 (Tex. Crim. App. 2021) ; see U.S. Const

. amend. VI ; Tex. Co nst. art. I, § 10. The first inquiry in a speedy trial analysi s is wh ether the delay between the time
the de fendant is f ormally accused or arrested to the time of t rial “ has crossed the threshold dividing ordinary from ‘presumpti vely prejudicial’ delay.” L opez , 631 S.W.3d

at 114. However, there is no constitutional test qua ntif ying the number of days or
months to determine exac t ly when that dividing line has been crossed. Id. at 114. As expressed by the court in Lopez , Indeed, the length of delay that will pro voke an inquiry into the speedy tria l factors “is necessarily dep endent 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 [, 2 192 ( 1972)] ). Su ch circumstances may inc lude the nature of the c harged 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 218 6

– 57] . And “the delay that can be tolerated fo r an ordinary street c rime is conside rably less than for a serious, c omplex conspiracy charge.” Id. at 531, 92 S. Ct. [a t 2 192] . Deliberate delay to hamper the defense weighs heavily against the State, while more neutral reasons like negligence or overcrowded co urts weigh against the State bu t 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 ; s ee Tex. Penal Code Ann. § 22.04(a). He spent 112 days i n jail with the charge being reduced to a C lass A misdem eanor after 85 day s. Lopez , 631
S.W.3d at 110

. The trial court granted Lopez ’ s motion to dismi ss the charge on speedy trial grounds . The cou rt of appeals affirmed the d ismissal , bu t the C ourt of
C rimi nal A ppeals reversed. Id. Among other ho ldings, the C ourt of C riminal A ppeals
held that the 112 days , under the facts of the case, did not raise a case of presumptive
harm sufficient to re quire further analysis. Id

. at 115.
In State v. Eli zondo , No. 04

- 21

- 00489

- CR , 2022 WL 3047103 , at *1 (Te x. App.

— San Antonio Aug. 3, 2022 , no pet.) (mem. op. , not designated for publication ) , Elizondo was charged with a Class A misdemeano r offense of drivi ng while intoxicated. Seven months elaps ed from the date of his arre st until his ch arges were d ismissed o n speedy trial grounds. The S tate appealed, contending that the seven

month time frame was not presumptively prejudic ial , which the court of app e als

su stained. Id

. As part of its analy sis in reaching its conclusion, the court quoted from
LaFave , “While som e courts still follow the eigh t

- month mark or even somethin g shorter, most have settled on a somewhat longer period, such as nine months or, mor e commo nly, a time ‘approaching,’ at, or slight ly (or even more than slight ly) beyond one year.” 5 Wayne R. LaFa ve, et al., Criminal Procedure , § 18.2(b), p. 130 (4th ed. 2015) (footnotes omitted ). 24 Id. at *2. In its footno te 2 , the court noted th at the Court of Criminal Appeals had
cited an earlier e dition of this treatise when noting that courts generally hold th at an eight

- month or longer delay is “ presumptively unreaso nable

. ” Id. at * 2 n. 2 (citing
Harris v. State , 827 S.W. 2 d 949, 95 6 (Tex. Crim. App. 1992) )

. However, the Harr is

court was actually p resented with a thirteen

- mon th delay, which it assumed was
presum ptively unreasonable i n its analysis

. Harris , 827 S.W. 2d at 957. Regard les s, LaFave now notes that the trend is to ward l onger delays , akin to the d elay in this case, being necessary t o reach the “ presumptiv e ly unreasona ble ” threshold

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

. Youngb lood was arrested on the misdemeanor charge on April 29 , 2021. Usi ng that starting point, t he resultant delay would have been 438 days, clearly within the

“ presump tive delay ” auth orities. However, that date is not a proper date to utilize to

sta rt 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)

. Nothin g in
the reco rd indicates that the mi sdemeanor charge was ever pr osecuted , and it is not the subject of this appeal

. T he right to a speedy trial attaches when a person becomes

an “ accused , ” meaning when he has been arres ted or charged by indictme nt or info rmation

. Cant u v. State , 253 S.W.3d 273, 28 0 (Tex. Crim. App. 200 8); Elizondo , 2022 WL 3047103 , at * 1. Yo ungblood was not arrested on the felony charge until Augu st 28, 2021, resul ting in a much shorter te n

- and

- a

- half

- month delay. Given the recogni zed tre nd of cou rts o f increasing the threshold delay for “ presumptive5 u nreasonableness , ” I would hold that the re was no “ pre sumptively unrea sonable ” delay in this cas e , a nd I would vote to affirm the ju dgment of the trial court. /s/ Mike Wallach
Mike Wallach Justice
Do Not Pu blish T ex. R. App. P. 47.2(b)
Delivered : J uly 13, 2023