No. PD-1613-14

In the

Court of Criminal Appeals of Texas

At Austin



No. 14-14-00054-CR

In the Court of Appeals

For the Fourteenth District of Texas

At Houston



No. 1571823

In County Criminal Court at Law # 2

Of Harris County, Texas



THE STATE OF TEXAS

Appellant

v.

BRIAN WEI

Appellee



State’s Petition for Discretionary Review



DEVON ANDERSON

District Attorney

Harris County, Texas

RISHABH GODHA

Assistant District Attorney

Harris County, Texas

CLINTON A. MORGAN

Assistant District Attorney

Harris County, Texas

State Bar No. 24071454

morgan_clinton@dao.hctx.net

1201 Franklin, Suite 600

Houston, Texas 77002

Tel: (713) 755-5826

FAX: (713) 755-5809

Counsel for the Appellant

ORAL ARGUMENT REQUESTED

PD-1613-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 1/6/2015 11:11:18 AM

Accepted 1/14/2015 4:08:38 PM

ABEL ACOSTA

CLERK
i

Statement Regarding Oral Argument

This case involves an unfortunately mangled area of constitutional law. 

The State requests oral argument to allow the parties to answer any questions 

this Court might have. 

Identification of the Parties

Counsel for the State:

District Attorney of Harris County — Devon Anderson

Assistant District Attorney at trial — Rishabh Godha

Assistant District Attorney on appeal — Clinton A. Morgan

1201 Franklin St.

Houston, Texas 77002

Appellee: Brian Wei, aka Fu Jiuh Wei

Counsel for the Appellee at trial and on appeal: James Stafford

515 Caroline St.

Houston, Texas 77002

Trial Judge:

Presiding judge — William T. Harmon
ii

Table of Contents

Page

Statement Regarding Oral Argument.................................................. i

Identification of the Parties ............................................................... i

Table of Contents .............................................................................. ii

Index of Authorities ..........................................................................iv

Statement of the Case ........................................................................1

Statement of Issues Presented ..............................................................1

Statement of Procedural History ........................................................1

First Ground for Review

The Court of Appeals erred in holding that a 51-month pre-trial delay 

created a presumption of harm so strong as to require dismissal even in the 

absence of actual harm.........................................................................................2

I. Background .................................................................................................5

A. The appellee was not arrested at the time charges were filed because he 

was hospitalized after his drunk-driving wreck..............................................5

B. The trial court held that the length of delay, alone, was sufficient to 

require dismissal. ............................................................................................6

II. The Court of Appeals’s Opinion................................................................8

A. The only dispute on appeal was whether the appellee was harmed by 

the delay. .........................................................................................................8

B. The State argued that a 51-month delay does not create a sufficient 

presumption of harm to require dismissal, and requested that the Court of 

Appeals announce a rule.................................................................................8

C. The Court of Appeals rejected the State’s proposed rules, but gave no 

indication of what rule it actually followed..................................................13

III. Problems with the Court of Appeals’s Opinion ........................................14

A. The Court of Appeals misread the Fifth Circuit cases; the State would 

have prevailed under Fifth Circuit precedent. ..............................................14
iii

B. Gonzales does not resolve this case. .....................................................15

C. The Court of Appeals’s opinion implies that the particular period of 

delay is irrelevant to the resolution of a speedy-trial claim so long as the 

delay exceeds eight months. .........................................................................15

Second Ground for Review

The Court of Appeals erred in using an unpublished opinion from this Court as 

authority to overrule one of its prior precedents. .................................................17

Conclusion....................................................................................... 21

Certificate of Compliance and Service .............................................. 22

Appendix.......................................................................................... 23

State v. Wei, ___ S.W.3d ___, No. 14-14-00054-CR, 2014 WL 5791548 

(Tex. App.—Houston [14th Dist.] Oct. 2, 2014)
iv

Index of Authorities

Cases

Barker v. Wingo

704 U.S. 514 (1972)..............................................................................................9

Doggett v. United States

505 U.S. 647 (1992).................................................................................... passim

Dragoo v. State

96 S.W.3d 308 (Tex. Crim. App. 2003) ..............................................................11

Ex parte Walker

928 So. 2d 259 (Ala. 2005).................................................................................10

Gonzales v. State

04-11-00405-CR, 2012 WL 1364981 (Tex. App.—

San Antonio Apr. 18, 2012) rev’d 2013 WL 765575 (Tex. Crim. App. Feb. 27, 

2013) (mem. op. not designated for publication).................................................18

Gonzales v. State

04-11-00405-CR, 2013 WL 4500656, at *1 (Tex. App.—

San Antonio Aug. 21, 2013) aff’d, 435 S.W.3d 801 (Tex. Crim. App. 2014)

(mem. op. not designated for publication) ...........................................................19

Gonzales v. State

435 S.W.3d 801 (Tex. Crim. App. 2014)................................................. 13, 14, 19

Gonzales v. State

PD-0724-12, 2013 WL 765575 (Tex. Crim. App. Feb. 27, 2013) 

(not designated for publication) ...........................................................................18

Harris v. State

827 S.W.2d 949 (Tex. Crim. App. 1992)..............................................................16

Shaw v. State

117 S.W.3d 883 (Tex. Crim. App. 2003)............................................................12

State v. Ollivier

312 P.3d 1 (Wash. 2013) ....................................................................................10

State v. Sears

849 N.E.2d 1060 (Ohio Ct. App. 2005)..............................................................11

State v. Shannon

17 So. 3d 1061 (La. Ct. App. 2009)....................................................................10
v

State v. Wei

___ S.W.3d ___, No. 14-14-00054-CR, 2014 WL 5791548 (Tex. App.—

Houston [14th Dist.] November 6, 2014, no pet. h.)......................... 2, 8, 16, 19

State v. Wei

No. 14-14-0054-CR, 2014 WL 4923279 (Tex. App.—

Houston [14th Dist.] October 2, 2014) (op. withdrawn) ..................................2

United States v. Erenas-Luna

560 F.3d 772 (8th Cir. 2009)..............................................................................10

United States v. Ferreira

665 F.3d 701 (6th Cir. 2011)..............................................................................10

United States v. Ingram

446 F.3d 1332 (11th Cir. 2006)..........................................................................10

United States v. Reagan

725 F.3d 471 (5th Cir. 2013) ................................................................................14

United States v. Serna-Villarreal

352 F.3d 225 (5th Cir. 2003)....................................................................... 10, 14

United States v. Toombs

574 F.3d 1262 (10th Cir. 2009)..........................................................................10

Zamorano v. State

84 S.W.3d 643 (Tex. Crim. App. 2002) ..............................................................11

Rules

TEX. R. APP. P. 77.3...................................................................................................20

Other Authorities

Wayne R. LaFave et al., CRIMINAL PROCEDURE (3rd ed. 2007)................................10
1

To the Honorable Court of Appeals:

Statement of the Case

In January 2009, the appellee was charged by information with driving 

while intoxicated. (CR 5). The information alleged a prior conviction for 

driving while intoxicated. (CR 5). The appellee was not arrested for the 

warrant until April, 2013. (CR 8). In June 2013, the appellee filed a Motion to 

Dismiss for Speedy Trial Violation. (CR 8-12). The trial court held a hearing 

and granted the motion on December 19, 2013. (CR 22). 

Statement of Issues Presented

First ground for review: The Court of Appeals erred in holding that a 51-

month pre-trial delay created a presumption of harm so strong as to require 

dismissal even in the absence of actual harm.

Second ground for review: The Court of Appeals erred in using an 

unpublished opinion from this Court as authority to overrule one of its prior 

precedents.

Statement of Procedural History

On direct appeal, the State argued that the trial court erred in dismissing 

the information because the appellee had not shown he was harmed by the 

delay, and the length of the delay was insufficient to warrant a presumption of 
2

harm. On October 2, 2014, a panel of the Fourteenth Court of Appeals issued 

an opinion affirming the trial court, and holding that the delay in this case was 

long enough to create a presumption of harm. See State v. Wei, No. 14-14-

00054-CR, 2014 WL 4923279 (Tex. App.—Houston [14th Dist.] October 2, 

2014) (op. withdrawn). 

On October 17, 2014, the State filed a motion for reconsideration en 

banc, pointing out that the panel had failed to distinguish prior contrary 

precedent from another panel of the Fourteenth Court. On November 6, 2014, 

the panel withdrew its prior opinion and issued another opinion again 

affirming the trial court. See State v. Wei, ___ S.W.3d ___, No. 14-14-00054-CR, 

2014 WL 5791548, at *1 (Tex. App.—Houston [14th Dist.] Nov. 6, 2014). On 

that same date, it denied the State’s motion for reconsideration as moot.

First Ground for Review

The Court of Appeals erred in holding that a 51-month pre-trial delay 

created a presumption of harm so strong as to require dismissal even in 

the absence of actual harm.

The question in this case is how long an arrest warrant can go unserved 

before a defendant is entitled to a dismissal, with prejudice, of the charges against 

him. This Court should grant review because there should be a standard answer 

statewide for this question rather than arbitrary, ad hoc decisions by lower courts. 
3

The State filed charges against the appellee but he did not know about those 

charges, and the State made no effort to prosecute him, for 51 months. Though 

defendants who file speedy-trial claims typically must show harm from the delay, 

the Supreme Court has held that after some amount of time — the period of delay 

in the controlling case was six years — courts will presume harm as a matter of 

law and the defendant will be entitled to a dismissal. Though it provided no 

principled reason for so holding, the Court of Appeals in this case held, in a 

published opinion, that 51 months was sufficient to require dismissal. 

The arbitrary nature of the Court of Appeals’s published holding will create 

several problems. First, because the Court of Appeals provided no basis for why 51 

months was a particularly meaningful number, it will encourage other trial and 

appellate courts to act in a similarly arbitrary manner. If 51 months requires 

dismissal, why doesn’t 48? Or 40? Indeed, there is nothing in the Court of 

Appeals’s opinion that would be inconsistent with requiring dismissal after a delay 

of only 9 months. Considering the importance of the subject — whether a 

defendant gets a free pass regardless of guilt — this Court should not allow each 

lower court to come up with its own arbitrary threshold for dismissal. 

Second, the present state of the law leaves Texas defendants ignorant of their 

rights, and Texas prosecutors ignorant of their deadlines. The facts of this case, as 

they apply to Sixth Amendment speedy-trial law, are common and will be repeated 
4

in the future: Through sheer negligence, the State failed to arrest a defendant for a 

lengthy period of time, but because he was ignorant of the pending charges the 

defendant suffered no discernible harm from the delay. If there is to be a point in 

time at which charges in cases like this must be dismissed (and the Supreme Court 

says there must), it does not serve the ends of justice to require the parties to guess 

at when that point is and then spend months or years litigating the matter.1In the

absence of meaningful guidance from the Supreme Court, numerous other courts 

of last resort have established time limits for their jurisdictions, and this Court 

should do the same. 

Third, these arbitrary decisions will create a ratcheting effect. When faced 

with this published opinion, Texas prosecutors will not appeal dismissals where the 

pre-arrest delay was 51 months or more. The only cases that will make their way to 

the appellate courts are cases where the delay is less than 51 months. Once a Texas 

court arbitrarily holds that a shorter delay — say, 42 months — requires dismissal, 

then prosecutors will stop appealing cases where the delay is longer than that. 

Without specific, controlling precedent from this Court, the lower courts of this 

State will, gradually and unintentionally, shorten the period of delay required for 

defendants to receive windfall dismissals. 

 

1 More than 16 months elapsed between the appellee filing a motion to dismiss and the Court of 

Appeals releasing its final opinion. 
5

Finally, the Court of Appeals’s decision will increase the number of 

defendants receiving dismissals based not on innocence or prosecutorial 

malfeasance, but mere negligence by police agencies. This case does not concern 

defendants who can show that they were actually harmed by pre-trial delay —

those who are incarcerated or who are suffering the mental anguish and 

inconvenience of pending charges and monthly visits to the courthouse. This case 

concerns only defendants who are unaware of the charges against them and who,

because of police negligence,2have not been arrested. As a matter of policy, courts 

should be loath to give these defendants a free pass on the charges without some 

showing that they were harmed by the delay, and thus should seek to increase, not 

decrease, the period of delay required before requiring dismissal. 

I. Background

A. The appellee was not arrested at the time charges were filed 

because he was hospitalized after his drunk-driving wreck.

On the evening of January 2, 2009, the appellee was driving on the Sam 

Houston Tollway and struck another vehicle from behind. (State’s Ex. 2). The 

other vehicle was not seriously damaged, but the appellee’s vehicle swerved 

and hit the concrete barrier in the middle of the freeway. (State’s Ex. 2). First 

 

2

Though the caselaw refers to such causes as “negligence,” the reason the Harris County 

Sheriff’s Department did not serve the warrant in this case is that it devotes its resources to 

serving felony warrants and relies on traffic enforcement to serve misdemeanor warrants. (2 RR 

9-11). Prosecutors generally have little control over how their county’s sheriff uses his resources. 
6

responders found the appellee pinned under his vehicle. (State’s Ex. 2). There 

was “a distinct odor of an alcoholic beverage coming from the general area of 

the [appellee’s] location.” (State’s Ex. 2). The appellee was transported to Ben 

Taub Hospital, where his left arm was amputated at the elbow. (State’s Exs. 1, 

2). A sample of the appellant’s blood taken at the hospital had a blood-alcohol 

content of .171. (State’s Ex. 2). The appellee was discharged from the hospital 

on January 10, 2009. (State’s Ex. 2).

While the appellee was in the hospital, the State filed charges against 

him for driving while intoxicated. (CR 4-5). The arrest warrant was never 

served, in part because the Harris County Sherriff’s Department has no policy 

on how to handle arrest warrants that are issued for hospitalized 

misdemeanants. (2 RR 24-25). The appellee turned himself in and posted 

bond on April 30, 2013. (2 RR 6; State’s Ex. 3; CR 8).

B. The trial court held that the length of delay, alone, was sufficient 

to require dismissal.

Less than two months after turning himself in, the appellee filed a 

motion to dismiss the charge. (CR 8-12). The appellee claimed that the 51-

month delay between the date charges were filed and the date of his arrest 

violated his right, guaranteed by the Sixth Amendment of the federal 

constitution, to a speedy trial.
7

The trial court held a hearing on this motion on December 19, 2013. (RR 

1). The only witness was Sergeant Gary Elofson of the Harris County Sheriff’s 

Office. (RR 8). Elofson testified regarding how, generally, warrants are 

recorded and served in Harris County. (RR 9-14). He also testified, based on 

documentation, regarding the history of the warrant related to this case. (RR 

17-20). Based on Elofson’s testimony, there is no evidence that law 

enforcement ever attempted to serve the warrant in this case. Elofson 

explained that if a defendant is in the hospital at the time charges are filed, 

there is no procedure for monitoring the defendant and arresting him unless it 

is an “extreme circumstance,” such as a “murder suspect.” (RR 24-25). 

The appellee offered no evidence. (RR 27-28). Without requesting 

argument, the trial court granted the appellee’s motion. (RR 28). When the 

State requested findings of fact, the trial court stated that “a four year three 

month period was a completely unreasonable amount of time for no effort to 

be made in order to arrest the defendant.” (RR 28-29). The State sought 

clarification, asking whether the trial court considered any other factors. (RR 

30). The trial court responded that “the length of delay and the fact that the 

[appellee] resided at the same address and the total lack of any effort to affect 

his arrest ... overpowered all the other factors with regards to his right to have 

a speedy trial.” (RR 30). 
8

II. The Court of Appeals’s Opinion

A. The only dispute on appeal was whether the appellee was harmed 

by the delay.

On direct appeal, there was only one issue of contention among the 

parties, thus the State takes little issue with much of the Court of Appeals’s 

opinion. Speedy trial claims are assessed using the four Barker factors: 

1) whether the delay was uncommonly long; 2) the reason for the delay; 

3) whether and how the defendant asserted his right to a speedy trial; and 

4) the harm that the defendant suffered from the delay. Doggett v. United 

States, 505 U.S. 647, 651 (1992). The parties and the Court of Appeals 

generally agreed regarding the first three: The delay was uncommonly long; it

was caused by the State’s negligence; and the appellee’s assertion of his right 

shows that he did not acquiesce in the delay. Wei, 2014 WL 6791548 at *2-3. 

In such cases, the only question regards the fourth Barker factor. There was no 

evidence that the appellee was harmed. Id. at *3. 

B. The State argued that a 51-month delay does not create a 

sufficient presumption of harm to require dismissal, and 

requested that the Court of Appeals announce a rule.

Barker described three types of harm caused by pretrial delay: 

1) pretrial incarceration; 2) anxiety caused by pending charges; and 

3) impairment of the defendant’s ability to mount a defense. Barker v. Wingo, 
9

704 U.S. 514, 532 (1972). In most cases, a defendant must show some sort of 

actual harm caused by the delay. However, in Doggett, the Supreme Court held 

that if the first three Barker factors weigh heavily enough against the 

prosecution, a defendant does not need to prove particularized harm in order 

to prevail. Doggett, 505 U.S. 657-58. In that case, the defendant was not 

arrested for six years after charges were filed due to the negligence of law 

enforcement. Ibid. The court held that although, under the second part of the 

Barker analysis, negligence weighs only slightly against the prosecution, the 

weight of the negligence increases as the delay lengthens, thus six years of 

negligence was sufficient to relieve the defendant of his burden to show 

particularized harm. Ibid. 

The basis for this holding was the Doggett court’s belief that at some

point in time, pre-trial delay “compromises the reliability of a trial in ways that 

neither party can prove or, for that matter, identify.” Id. at 655. At that time, a 

court can presume harm for purposes of the Barker analysis. However, other 

than noting that six years was “clearly sufficient,” id. at 657, the Doggett court 

did not note when that point in time is. 

In its brief, the State provided extensive argument to the Court of 

Appeals showing that there was little meaningful guidance from Texas courts 

about when to apply the Doggett presumption, and considerable disagreement 
10

among courts in other jurisdictions. (See State’s Appellate Brief at 11-26). For 

instance, the Fifth Circuit has established a bright-line rule that it will only 

reverse a case based on the Doggett presumption if the period of delay 

exceeds five years. See United States v. Serna-Villarreal, 352 F.3d 225, 232 (5th 

Cir. 2003). The five-year rule seems to have been acknowledged as the 

majority rule. See Wayne R. LaFave et al., CRIMINAL PROCEDURE § 18.2(e) (3rd ed. 

2007) (referring to Serna-Villarreal’s statement as general rule); United States 

v. Toombs, 574 F.3d 1262, 1275 (10th Cir. 2009) (following Serna-Villarreal’s

rule), State v. Ollivier, 312 P.3d 1, 18 (Wash. 2013) (same); Ex parte Walker, 

928 So. 2d 259, 270 (Ala. 2005) (same); State v. Shannon, 17 So. 3d 1061, 1067 

(La. Ct. App. 2009) (same).

However, a significant number of courts, including some federal circuits, 

have presumed harm at periods of time far shorter than five years. See United 

States v. Erenas-Luna, 560 F.3d 772, 780 (8th Cir. 2009) (dismissing charges 

based on presumed harm of 36-month delay); United States v. Battis, 589 F.3d 

673, 683 (3d Cir. 2009) (dismissing charges based on presumed harm of 35-

month delay); United States v. Ferreira, 665 F.3d 701, 707-08 (6th Cir. 2011)

(same); United States v. Ingram, 446 F.3d 1332, 1339 (11th Cir. 2006)

(dismissing charges based on presumed harm of 21-month delay); State v. 
11

Sears, 849 N.E.2d 1060, 1063 (Ohio Ct. App. 2005) (dismissing charges based 

on presumed harm of 9-month delay).

There is no binding precedent from this Court as to when the 

presumption of harm becomes strong enough to require dismissal. In 

Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002), this Court cited 

Doggett and stated that a 46-month delay “weighs heavily against the State,” 

but in its discussion of the fourth Barker factor, harm, the opinion made no 

mention of the length of the delay or any associated presumption. See 

Zamorano, 84 S.W.3d at 649, 652-54. The Zamorano court laid out the three 

types of harm that Barker had mentioned — 1) pretrial incarceration; 2) 

anxiety and concern while awaiting trial; 3) impairment of the defense — and 

concluded that Zamorano had proven he suffered the second type of harm, but 

the third type of harm was “not strongly implicated.” Id. at 652-54. However, 

the presumption of harm that comes from the mere passage of time relates 

exclusively to the third type of harm. Doggett, 505 U.S. at 654-56. Thus it does 

not seem that the Doggett presumption played a role in the outcome of the 

case.

In Dragoo v. State, 96 S.W.3d 308 (Tex. Crim. App. 2003), this Court cited 

to Zamorano’s discussion of Doggett and stated that a 36-month delay was 

presumptively harmful, but whatever harm was presumed played no role in 
12

the decision because Dragoo had acquiesced to the delay, thus dismissal was 

inappropriate. Dragoo, 96 S.W.3d at 312, 315. Similarly, in Shaw v. State, 117 

S.W.3d 883 (Tex. Crim. App. 2003), this Court stated that a 38-month delay 

“weigh[ed] heavily in favor of finding a [speedy-trial] violation,” but concluded 

that the defendant was not entitled to a dismissal because he had acquiesced 

to much of the delay. Shaw, 117 S.W.3d at 890. If the question is, “How much 

delay is required before the presumption of harm becomes so strong as to 

require dismissal?”, Zamorano, Dragoo, and Shaw provide no meaningful 

guidance. 

In light of the lack of binding precedent, and the lack of consensus 

among courts in other jurisdictions, the State asked the Court of Appeals to 

adopt the strictest holding of Doggett, namely that presumed harm will 

require reversal after a delay of six years. Alternatively, the State pointed out 

that adopting the Fifth Circuit’s five-year rule would at least clear up any 

ambiguity for future cases. Under either of these proposed rules, the 

presumed harm of the 51-month delay in this case would not require 

dismissal.
13

C. The Court of Appeals rejected the State’s proposed rules, but gave 

no indication of what rule it actually followed.

In its opinion, the Court of Appeals purported to rely on this Court’s opinion 

in Gonzales v. State, 435 S.W.3d 801 (Tex. Crim. App. 2014), which was released 

after the parties submitted their briefs. In Gonzales, this Court held that the 

presumed harm of a six-year delay required dismissal because the State did not 

rebut the presumed harm. Gonzales, 435 S.W.3d at 810. As the Court of Appeals 

noted, Gonzales relied on two Fifth Circuit cases, United States v. Cardona, 302 

F.3d 494, 498 (5th Cir. 2002) (holding that five-year delay required dismissal) and 

United States v. Molina-Solario, 577 F.3d 300, 304 (5th Cir. 2009) (holding that 

ten-year delay required dismissal). The Court of Appeals examined Gonzales, 

Cardona, and Molina-Solario and concluded that because none of these cases 

explicitly stated a magic number regarding the length that would require dismissal, 

any time there is any presumption of harm the defendant is entitled to a dismissal 

unless the State rebuts that presumption. Wei, 2014 WL 5791548 at *4-5. Because 

the State did not show that the appellee was not harmed by the 51-month delay in 

this case, the Court of Appeals held that the appellee was entitled to dismissal. Id. 

at *6. 
14

III. Problems with the Court of Appeals’s Opinion

A. The Court of Appeals misread the Fifth Circuit cases; the State 

would have prevailed under Fifth Circuit precedent.

The most glaring problem with the Court of Appeals’s opinion is its use of 

the Fifth Circuit cases of Cardona and Molina-Solario. The Court of Appeals’s 

observation that these cases did not cite to any “magic number” before presuming 

harm is true, as far as it goes, but it ignores the background against which these 

cases were decided. The Fifth Circuit is actually the leading court for using a 

magic number in deciding speedy-trial cases, and that magic number is five years. 

See, e.g., Serna-Villarreal, 352 F.3d at 232; United States v. Reagan, 725 F.3d 471, 

487 (5th Cir. 2013) (20-month delay did not create presumption of prejudice 

because “delays of less than five years cannot alone support a presumption of 

prejudice”). If Cardona and Molina-Solario did not mention a magic number it is 

probably because the delay in those cases was longer than five years, thus the fiveyear threshold was irrelevant. Had the Court of Appeals faithfully applied Fifth 

Circuit precedent to this case, it would have reversed the trial court because the 

delay in this case was less than five years.

In Gonzales, this Court made a point of noting that it had routinely followed 

Fifth Circuit precedent regarding speedy-trial claims. See Gonzales, 435 S.W.3d at 

813 n.10. While (for reasons that can be better explained if this Court grants 

review) the State believes a six-year rule is a more faithful interpretation of 
15

Doggett, if this Court is serious about following Fifth Circuit precedent in this area 

of the law it should adopt the five-year rule and reverse the Court of Appeals. 

B. Gonzales does not resolve this case.

Though the Court of Appeals’s opinion purported to rely almost exclusively 

on Gonzales, that case does not provide a resolution here. The delay in Gonzales

was greater than six years, and Doggett held that a delay of six years creates a 

presumption of prejudice so strong as to require reversal. Gonzales is completely 

consistent with both of the State’s proposed rules. The question the State presented 

here is whether the Doggett presumption applies prior to the six-year point, and, if 

so, when. Gonzales does not answer that question. 

C. The Court of Appeals’s opinion implies that the particular period 

of delay is irrelevant to the resolution of a speedy-trial claim so 

long as the delay exceeds eight months.

Part of the problem with the Court of Appeals’s decision not to announce a 

rule regarding the period of delay that requires reversal is that its opinion can be 

read to require dismissal after very short periods of delay. The only cutoff 

mentioned in the Court of Appeals’s opinion is that a speedy-trial inquiry is only 

appropriate once the delay exceeds eight months;

3

other than that, the Court of 

Appeals provided no cutoff for when the presumption of harm applies. 

 

3

The general rule is that a speedy-trial analysis is triggered when the delay reaches one year. See, 

e.g., Doggett, 505 U.S. at 652 n.1. There is, however, a smaller, older line of cases holding that 
16

Does that mean that the Court of Appeals’s opinion would require dismissal 

after a delay of nine months? Certainly the Court of Appeals made plain that it had 

little concern for the passage of particular periods of time. It noted that the delay in 

this case was “only nine months less than that of Cardona,” Wei, 2014 WL 

5791548, implying that a difference of nine months between cases was irrelevant.

But if the nine-months’ difference between this case and Cardona is irrelevant, the 

Court of Appeals gave no reason to believe the nine-months’ difference between 

this case and a case with a 42-month delay would be relevant. Or between a case 

with a 42-month delay and a case with a 33-month delay. Etc., etc., etc. The only 

possible ends to this would be 1) an arbitrary declaration that one nine-month 

difference (say, between 33 and 24 months) was somehow more significant than 

another nine-month difference; or 2) holding that any delay of more than 8 months 

triggers the Doggett presumption of harm.

The explicit holding of Doggett is that at some point the delay in a case 

becomes so presumptively harmful as to require dismissal; the unstated holding 

must be that prior to that point the delay is not so presumptively harmful. By 

treating the difference between a delay of 51 months and a delay of 60 months as 

being utterly irrelevant, and then failing to provide any guidance as to what 

 

the inquiry is triggered after only eight months. See, e.g., Wei, 2014 WL 5791548 at *2 (citing 

Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992)). These lines of cases have 

coexisted for decades without note. 
17

difference would be relevant, the Court of Appeals failed in its obligation to 

explain the outcome of this case to the parties. By choosing to publish its opinion, 

the Court of Appeals has thoroughly muddied the speedy-trial jurisprudence of this 

State and will no doubt encourage similarly arbitrary decisions by other courts. The 

Doggett presumption of harm is one of the most powerful presumptions in the 

criminal law;4it should not be applied in such an arbitrary and unpredictable 

manner. 

The ultimate holding of the Court of Appeals’s opinion is that at an unknown 

point in time courts will presume an unknown harm. Doggett requires the 

presumption of the unknown harm; this Court should grant review and plainly state 

the law so that prosecutors and defendants will know, at least, when that 

presumption applies.

Second Ground for Review

The Court of Appeals erred in using an unpublished opinion from this Court

as authority to overrule one of its prior precedents.

Prior to this case, a valid, published case from the Fourteenth Court held that 

even after a 57-month delay a defendant must show harm to win dismissal on 

 

4 While Doggett theoretically allows for the prosecution to rebut the presumption of harm, the 

Supreme Court admitted that doing so might be practically impossible. See Doggett, 505 U.S. at 

658 n.4. There are cases where courts have held that the Doggett presumption was “extenuated” 

by showing that the defendant acquiesced to the delay, but the State has been unable to find a 

single case in any jurisdiction where a court has held that the prosecution actually rebutted the 

Doggett presumption.
18

speedy-trial grounds. See Guajardo v. State, 999 S.W.2d 566, 571 (Tex. App.—

Houston [14th Dist.] 1999, pet. ref’d). In its brief and motion for rehearing, the 

State pointed to this case and, while criticizing some of its reasoning, noted that on 

the narrow issue of presumed harm it was still binding precedent that should 

control this case. Citing to a prior, unpublished decision of this Court in Gonzales, 

the Court of Appeals disagreed.

The Fourth Court’s original, unpublished, opinion in Gonzales relied on 

Guajardo’s holding, which the Fourth Court summarized: “[A]lthough showing of 

actual prejudice is not required, defendant has the burden to make some showing 

of prejudice.” See Gonzales v. State, 04-11-00405-CR, 2012 WL 1364981 (Tex. 

App.—San Antonio Apr. 18, 2012) (mem. op. not designated for publication)

(“Gonzales I”). Based on this interpretation of Guajardo, the Fourth Court in 

Gonzales I announced that although it made the Doggett presumption of harm 

based solely on the passage of time, the defendant’s claim failed because he made 

no showing of harm.

5

Id. at *3. In an unpublished opinion, this Court pointed out 

that the entire point of the Doggett presumption was to relieve the defendant of his 

burden to show actual harm and remanded the case to the Court of Appeals for a 

harm analysis. Gonzales v. State, PD-0724-12, 2013 WL 765575 (Tex. Crim. App. 

Feb. 27, 2013) (not designated for publication) (“Gonzales II”). On remand, the 

 

5

The Guajardo court made no such presumption, and did not mention Doggett, so Gonzales I

was a curious application of Guajardo.
19

Fourth Court, in an unpublished opinion, found that the delay was harmful and 

ordered a dismissal, and this Court subsequently affirmed that decision in a 

published opinion. See Gonzales v. State, 04-11-00405-CR, 2013 WL 4500656, at 

*1 (Tex. App.—San Antonio Aug. 21, 2013) (mem. op. not designated for 

publication) (“Gonzales III”); Gonzales, 435 S.W.3d 801 (“Gonzales IV”).

In this case, the Court of Appeals’s original opinion made no reference to 

Guajardo at all. The State filed a motion for rehearing en banc, pointing out that 

the holding in this case conflicted with Guarjardo and requesting that the court 

reconsider en banc which case was controlling. In response, the panel reissued its 

opinion with an additional three paragraphs asserting that Guarjardo somehow 

conflicted with Gonzales IV and was therefore no longer good law. Wei, 2014 WL 

5791548 at *4-5. 

However, this Court’s published opinion in Gonzales IV says nothing that

undermines the validity of Guajardo. The issue in Gonzales IV was whether, after a 

Doggett presumption had been made, the State had rebutted the presumption or 

shown that the defendant acquiesced to the delay. Gonzales, 435 S.W.3d at 814-15. 

Nothing in that opinion spoke to Guajardo’s holding that, after a 57-month delay a 

defendant still must show actual harm in order to gain a dismissal; were it not for 

the discussion of Guajardo in Gonzales I and II, there would be no reason to 

believe that Gonzales IV had any bearing on Guajardo. As noted above, if the 
20

stated holding of Doggett is that at a certain point the presumed harm caused by 

delay becomes strong enough to require dismissal, the unstated holding is that prior 

to that point the presumed harm is not strong enough to require dismissal. 

Guajardo and Gonzales IV are easily reconcilable if that point occurs between 57 

months and 72 months, which is precisely the argument that the State made, but 

which the Court of Appeals did not address.

The State believes the Court of Appeals improperly used an unpublished 

opinion from this Court as authority to overturn inconsistent caselaw. This not only 

violates Rule of Appellate Procedure 77.3, more importantly it deprives this Court 

of the ability to control the precedential value of its own cases. It is not often that 

this Court declines to publish cases on discretionary review, so there must have 

been a good reason for doing so in Gonzales II. By using that opinion’s reasoning 

to reject Guajardo, the Court of Appeals disobeyed the Rules of Appellate 

Procedure and interfered with this Court’s control of the state’s criminal 

jurisprudence. This Court should grant review and reverse the Court of Appeals for 

so doing. 
21

Conclusion

The State asks that this Court grant review and reverse the Court of 

Appeals.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ C.A. Morgan

CLINTON A. MORGAN

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

(713) 755-5826

Texas Bar No. 24071454
22

Certificate of Compliance and Service

I certify that, according to Microsoft Word’s word-counting function, the 

portion of this brief for which Rule of Appellate Procedure 9.4(i)(1) requires a 

word count contains 4,487 words.

I also certify that I have requested that efile.txcourts.gov electronically 

serve a copy of this brief to:

James Stafford

keyserstaf@aol.com

Lisa McMinn

State Prosecuting Attorney

information@spa.texas.gov

/s/ C.A. Morgan

CLINTON A. MORGAN

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002-1923

(713) 755-5826

Texas Bar No. 24071454

Date: January 6, 2014
23

Appendix

State v. Wei, ___ S.W.3d ___, No. 14-14-00054-CR, 2014 WL 5791548

(Tex. App.—Houston [14th Dist.] Oct. 2, 20
State v. Wei, --- S.W.3d ---- (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2014 WL 5791548

Court of Appeals of Texas,

Houston (14th Dist.).

The STATE of Texas, Appellant

v.

Brian WEI, Appellee.

No. 14–14–00054–CR. | Nov. 6, 2014.

Synopsis

Background: Following a delay of 51 months from date charges were filed for driving while intoxicated (DWI) and date of 

defendant’s arrest when he turned himself in, defendant moved to dismiss. The Criminal Court at Law No. 2, Harris County, 

granted motion. State appealed.

Holdings: The Court of Appeals, Sharon McCally, J., held that:

[1] eight-month delay from the time of arrest and the hearing on dismissal motion was not to be included in analysis of speedy 

trial claim;

[2] 51-month delay was presumptively unreasonable and triggered analysis of other three Barker factors for claim;

[3] delay was caused by the State’s negligence;

[4] moving to dismiss rather than seeking a speedy trial did not weaken defendant’s assertion of speedy trial right; and

[5] prejudice caused by delay was presumed.

Affirmed.

West Headnotes (23)

[1] Criminal Law

Constitutional guarantees;  speedy trial in general

The standard to enforce the state constitutional right to a speedy trial is the same standard the federal courts use to 

enforce the Sixth Amendment right to a speedy trial. U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, 

§ 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[2] Criminal Law

Accrual of right to time restraints

The right to a speedy trial attaches once a person is either arrested or charged. U.S.C.A. Const.Amend. 6; Vernon’s 

Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote
State v. Wei, --- S.W.3d ---- (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

[3] Criminal Law

In general;  balancing test

A speedy trial claim is analyzed on a case-by-case basis by balancing the following factors: (1) length of delay; (2) 

the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice inflicted on the defendant by 

the delay. U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[4] Criminal Law

In general;  balancing test

Criminal Law

Circumstances as determinative

No single factor under the Barker speedy trial analysis is either necessary or sufficient to establish a violation of the 

right to a speedy trial; rather, the Barker factors must be considered together, along with any other relevant 

circumstances. U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. art. 

1.05.

Cases that cite this headnote

[5] Criminal Law

Presumptions and burden of proof

If the delay from the date of accusation until trial is unreasonable enough to be presumptively prejudicial, the first 

factor under the Barker speedy trial analysis is satisfied and analysis of the remaining three factors is triggered. 

U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[6] Criminal Law

Presumptions and burden of proof

The State must satisfy its burden under the Barker speedy trial analysis of justifying the length of the delay, while 

the defendant must meet his burden of proving the assertion of the right and showing prejudice; the State’s reason 

for the delay serves to determine how heavily the length of the delay should weigh against it, and defendant’s 

burden of proof varies inversely to the State’s degree of culpability for the delay. U.S.C.A. Const.Amend. 6; 

Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[7] Criminal Law

Demand for trial

Criminal Law

Prejudice or absence of prejudice
State v. Wei, --- S.W.3d ---- (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

The greater the State’s bad faith or official negligence and the longer its actions delay a trial, the less a defendant 

must show actual prejudice or prove diligence in asserting his right to a speedy trial. U.S.C.A. Const.Amend. 6; 

Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[8] Criminal Law

Review De Novo

Criminal Law

Time of trial;  continuance

The Court of Appeals applies a bifurcated standard of review to a trial court’s ruling on a speedy trial claim; the 

factual components are reviewed for an abuse of discretion, while the legal components are reviewed de novo. 

U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[9] Criminal Law

Time for trial

Appellate review of the individual Barker speedy trial factors necessarily involves factual determinations and legal 

conclusions, but the balancing test as a whole is a purely legal question. U.S.C.A. Const.Amend. 6; Vernon’s 

Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[10] Criminal Law

Time of trial and continuance

With regard to the trial court’s determination of factual issues when reviewing a ruling on a speedy trial claim, the 

Court of Appeals views all the evidence in the light most favorable to the trial court’s ruling. U.S.C.A. 

Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[11] Criminal Law

Delay caused by accused

Eight-month delay from the time of defendant’s arrest for driving while intoxicated (DWI) until the hearing on his 

motion to dismiss claiming violation of speedy trial right was not to be included in analysis of claim, where delay 

was the result of seven resets, six of which were requested by defendant, and the State’s sole reset was only for eight 

days. U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote
State v. Wei, --- S.W.3d ---- (2014)

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[12] Criminal Law

Subsequent to arrest

Criminal Law

Presumptions and burden of proof

Delay of 51 months from the filing of driving while intoxicated (DWI) charges against defendant and his arrest was 

sufficiently lengthy to be presumptively unreasonable, and thus delay triggered analysis of other three Barker factors 

in determining claimed speedy trial violation, where delay was 43 months longer than the minimum usually found to 

be presumptively unreasonable. U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; V.T.C.A., 

Penal Code § 49.01; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[13] Criminal Law

Deliberate governmental conduct

In determining the reasons for delay when analyzing a claimed speedy trial violation, intentional or deliberate 

prosecutorial delay will weigh heavily against the State, while neutral reasons, such as negligence or overcrowded 

courts, will be less heavily weighed. U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s 

Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[14] Criminal Law

Delay Attributable to Prosecution

In determining the reasons for delay when analyzing a claimed speedy trial violation, a valid delay should not weigh 

against the State at all. U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas 

C.C.P. art. 1.05.

Cases that cite this headnote

[15] Criminal Law

Presumptions and burden of proof

When the State fails to establish a reason for the delay, a court deciding a claimed speedy trial violation may 

presume neither a deliberate attempt to prejudice the defense nor that the reason is valid. U.S.C.A. Const.Amend. 6; 

Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[16] Criminal Law

In general;  balancing test

In determining the reasons for delay when analyzing claimed speedy trial violation, the reason for the delay is a factspecific inquiry and may not be readily apparent from the trial record. U.S.C.A. Const.Amend. 6; Vernon’s 
State v. Wei, --- S.W.3d ---- (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[17] Criminal Law

Delay Attributable to Prosecution

Delay of 51 months from the filing of driving while intoxicated (DWI) charges against defendant and his arrest was 

caused by the State’s negligence, and thus reason for delay was not valid and weighed against the State, but not 

heavily, in deciding claimed speedy trial violation; defendant continued to live at address listed on complaint during 

relevant time period, law enforcement never attempted to serve warrant, and there was no specific reason for delay. 

U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; V.T.C.A., Penal Code § 49.01; Vernon’s 

Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[18] Criminal Law

Demand for trial

Filing a motion to dismiss based upon a claimed speedy trial violation rather than seeking a speedy trial did not 

weaken defendant’s assertion of speedy trial right, and thus assertion of right weighed in defendant’s favor in 

deciding claim, where defendant was not arrested and did not know that his right had been violated and instead 

turned himself in on charges for driving while intoxicated (DWI) that were filed 51 months earlier upon learning 

there was an outstanding warrant for his arrest, and defendant sought dismissal less than two months after he turned 

himself in. U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; V.T.C.A., Penal Code § 49.01; 

Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[19] Criminal Law

Prejudice or absence of prejudice

Court of Appeals assesses prejudice factor in determining a claimed speedy trial violation in light of the interests 

that the speedy trial right was designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety 

and concern of the accused, and limiting the possibility that the defense will be impaired; of these types of prejudice, 

the last is the most serious because the inability of a defendant adequately to prepare his case skews the fairness of 

the entire system. U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s Ann.Texas C.C.P. 

art. 1.05.

Cases that cite this headnote

[20] Criminal Law

Prejudice or absence of prejudice

In claiming violation of the right to a speedy trial, the defendant has the burden to make some showing of prejudice, 

although a showing of actual prejudice is not required. U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 

1, § 10; Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote
State v. Wei, --- S.W.3d ---- (2014)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

[21] Criminal Law

Presumptions and burden of proof

In claiming violation of the right to a speedy trial, when the defendant makes a prima facie showing of prejudice, the 

burden shifts to the State to show that the defendant suffered no serious prejudice beyond that which ensued from 

the ordinary and inevitable delay. U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; Vernon’s 

Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[22] Criminal Law

Consent to or waiver of delay

Criminal Law

Presumptions and burden of proof

In claiming violation of the right to a speedy trial, a defendant who has made a prima facie showing of prejudice will 

be entitled to relief unless the presumption of prejudice is (1) persuasively rebutted by the State, or (2) extenuated by 

the defendant’s acquiescence in the delay. U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; 

Vernon’s Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote

[23] Criminal Law

Subsequent to accusation

Criminal Law

Prejudice or absence of prejudice

Criminal Law

Presumptions and burden of proof

Prejudice caused by the State’s negligent delay of 51 months from the date of filing driving while intoxicated (DWI) 

charges against defendant and the date of his arrest was presumed, and thus prejudice factor weighed in defendant’s 

favor in deciding claimed speedy trial violation, even though there was no pretrial incarceration and defendant did 

not suffer anxiety or concern due to having been unaware of charges; State failed to prove that defendant acquiesced 

in delay, and State failed to affirmatively prove that delay did not impair defendant’s ability to defend himself. 

U.S.C.A. Const.Amend. 6; Vernon’s Ann.Texas Const. Art. 1, § 10; V.T.C.A., Penal Code § 49.01; Vernon’s 

Ann.Texas C.C.P. art. 1.05.

Cases that cite this headnote
State v. Wei, --- S.W.3d ---- (2014)

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Attorneys and Law Firms

Clinton Morgan, Houston, for the State.

James Stafford, Houston, for Appellee.

Panel consists of Justices McCALLY, BROWN, and WISE.

SUBSTITUTE OPINION

SHARON McCALLY, Justice.

*1 The opinion of October 2, 2014, is withdrawn and this opinion is substituted in its place.

Appellee was charged by information with driving while intoxicated in January 2009. In June 2013, appellee filed a motion 

to dismiss for violation of his right to a speedy trial. The trial court granted the motion and the State brought this appeal. We 

affirm.

BACKGROUND

On the evening of January 2, 2009, appellee struck another vehicle from behind while driving. First responders found 

appellee pinned under his vehicle. Appellee was transported to the hospital where his left arm was amputated at the elbow. 

An analysis of blood taken from him at the hospital showed a blood-alcohol content of .171. Appellee was discharged from 

the hospital on January 10, 2009.

On January 6, 2009, the State filed charges against appellee for driving while intoxicated.1 The arrest warrant was never 

served. In April 2013, appellee learned there was an outstanding warrant for his arrest. Appellee turned himself in and posted 

bond on April 30, 2013.

Subsequently, on June 18, 2013, appellee filed a motion on the grounds the 51–month delay between the date charges were 

filed and the date of his arrest violated his right to a speedy trial. See U.S. CONST. amend. VI; Tex. Const. art. I, § 10; and 

Tex.Code Crim. Proc. art. 1.05. Following a hearing, the trial court granted appellee’s motion.

DISCUSSION

[1] We first note that Texas courts employ the same standard to enforce the state constitutional right to a speedy trial as federal 

courts use to enforce the Sixth Amendment right to a speedy trial. See Harris v. State, 827 S.W.2d 949, 956 

(Tex.Crim.App.1992). Appellee makes no argument that his rights under state law differ from those under federal law.

I. Pertinent Law

[2] [3] [4] The right to a speedy trial attaches once a person is either arrested or charged. Cantu v. State, 253 S.W.3d 273, 281 

(Tex.Crim.App.2008), citing United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). A speedy trial 

claim is analyzed on a case-by-case basis by balancing the following factors: (1) length of delay; (2) the reason for the delay; 

(3) the defendant’s assertion of his right; and (4) the prejudice inflicted on the defendant by the delay. Id. citing Barker v. 

Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See also Henson v. State, 407 S.W.3d 764, 767 

(Tex.Crim.App.2013). No single Barker factor is either necessary or sufficient to establish a violation of the right to a speedy 

trial. Cantu, 253 S.W.3d at 281. Rather, the Barker factors must be considered together, along with any other relevant 

circumstances. Id.
State v. Wei, --- S.W.3d ---- (2014)

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[5] [6] [7] If the delay from the date of accusation until trial is unreasonable enough to be presumptively prejudicial, the first 

factor is satisfied and analysis of the remaining three factors is triggered. Id. at 281, citing Doggett v. United States, 505 U.S. 

647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); and Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App.2002). 

The State must satisfy its burden of justifying the length of the delay while the defendant must meet his burden of proving the 

assertion of the right and showing prejudice. Cantu, 253 S.W.3d at 280. The State’s reason for the delay serves to determine 

how heavily the length of the delay should weigh against the State. Zamorano, 84 S.W.3d at 649. The defendant’s burden of 

proof varies inversely to the State’s degree of culpability for the delay. Cantu, 253 S.W.3d at 280. In other words, “the 

greater the State’s bad faith or official negligence and the longer its actions delay a trial, the less a defendant must show 

actual prejudice or prove diligence in asserting his right to a speedy trial.” Id. at 280–81.

*2 [8] [9] [10] We apply a bifurcated standard of review to a trial court’s ruling on a speedy trial claim. Id. at 282. The factual 

components are reviewed for an abuse of discretion, while the legal components are reviewed de novo. Id. Review of the 

individual Barker factors necessarily involves factual determinations and legal conclusions, but the balancing test as a whole 

is “a purely legal question.” Id. With regard to the trial court’s determination of factual issues, we view all the evidence in the 

light most favorable to the trial court’s ruling. Id.

A. Length of the Delay

[11] [12] A total of 51 months elapsed from the filing of charges against appellee and his arrest.2 The State concedes that the 

delay was sufficiently lengthy to trigger an analysis of the other factors. We agree. See Zamorano, 84 S.W.3d at 649 (delay of 

58 months in a plain-vanilla DWI case was sufficiently lengthy to trigger analysis of the other Barker factors). In this case, 

the delay was 43 months longer than the minimum usually found to be presumptively unreasonable. See Harris v. State, 827 

S.W.2d 949, 956 (Tex.Crim.App.1992) (recognizing that courts generally hold that any delay of eight months or longer is 

presumptively unreasonable and triggers speedy trial analysis). “Because the length of the delay stretched well beyond the 

bare minimum needed to trigger judicial examination of the claim, this factor—in and of itself—weighs heavily against the 

State.” Zamorano, 84 S.W.3d at 649.

B. Reason for the Delay

[13] [14] [15] [16] The burden of justifying the delay falls on the State. Cantu, 253 S.W.3d at 280. The particular reason for the 

delay will determine how heavily this factor should weigh against the State. Zamorano, 84 S.W.3d at 649. While intentional 

or deliberate prosecutorial delay will weigh heavily against the State, neutral reasons, such as negligence or overcrowded 

courts, will be less heavily weighed. Id. (citing Barker, 407 U.S. at 531, 92 S.Ct. 2182). A valid delay should not weigh 

against the State at all. See State v. Munoz, 991 S.W.2d 818, 822 (Tex.Crim.App.1999). When the State fails to establish a 

reason for the delay, we may presume neither a deliberate attempt to prejudice the defense nor that the reason is valid. 

Dragoo v. State, 96 S.W.3d 308, 314 (Tex.Crim.App.2003). The reason for the delay is a fact-specific inquiry and may not be 

readily apparent from the trial record. Henson, 407 S.W.3d at 769.

[17] As set forth above, the relevant time period for the delay is from January 2009 until April 2013. The record reflects that it

was undisputed that during the relevant time period appellee continued to live at the address listed on the complaint. The 

State concedes that there was no evidence that law enforcement ever attempted to serve the warrant in this case. The State 

admits there was no evidence of a specific reason for the 51–month delay in this case. The uncontradicted testimony of 

Sergeant Elofson at the hearing demonstrates the delay was caused by negligence. Because the reason for the delay was not 

valid, this factor does weigh against the State, albeit not heavily because the delay was not intentional or deliberate. See 

Dragoo, 96 S.W.3d at 314.

C. Assertion of the Right

*3 [18] The record reflects appellee sought dismissal for violation of his right to a speedy trial less than two months after he 

learned of the charges and was arrested. Citing Cantu, 253 S.W.3d at 283, the State argues appellee’s claim is weakened 

because he sought dismissal rather than a speedy trial.
State v. Wei, --- S.W.3d ---- (2014)

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The court in Cantu was considering a 16–month delay from the date of arrest until the defendant was charged. The court 

found the trial court’s conclusion that this factor weighed against the defendant was supported by the record showing the 

defendant did not establish “that he had tried to get the case into court so that he could go to trial in a timely manner.” Id. at 

284. In this case however, appellee was not arrested at the outset and did not know, as Cantu did, that his right to a speedy 

trial was being violated. Because charges were filed but no attempt was ever made to arrest appellee, he was unaware of the 

need to “get the case into court.” In a case such as this, where it is undisputed appellee had no knowledge charges were 

pending for over four years, we disagree the filing of a motion to dismiss weighs against him. We conclude appellee’s 

assertion of his right to a speedy trial is a factor that weighs in his favor.

D. Prejudice

[19] [20] [21] [22] We assess prejudice in light of the interests that the speedy trial right was designed to protect: preventing 

oppressive pretrial incarceration, minimizing anxiety and concern of the accused, and limiting the possibility that the defense 

will be impaired. Zamorano, 84 S.W.3d at 652. Of these types of prejudice, the last is the most serious because the inability 

of a defendant adequately to prepare his case skews the fairness of the entire system. Cantu, 253 S.W.3d at 283 (citing 

Dragoo, 96 S.W.3d at 315). The defendant has the burden to make some showing of prejudice, although a showing of actual 

prejudice is not required. Munoz, 991 S.W.2d at 826; State v. Smith, 76 S.W.3d 541, 551 (Tex.App.-Houston [14th Dist.] 

2002, pet. ref’d). When the defendant makes a prima facie showing of prejudice, the burden shifts to the State to show that 

the defendant suffered “no serious prejudice beyond that which ensued from the ordinary and inevitable delay.” Munoz, 991 

S.W.2d at 826; Smith, 76 S.W.3d at 551. A defendant who has made a prima facie showing of prejudice will be entitled to 

relief unless the presumption of prejudice is (1) persuasively rebutted by the State, or (2) extenuated by the defendant’s 

acquiescence in the delay. Doggett v. United States, 505 U.S. 647, 658, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

[23] Appellee concedes there was no pretrial incarceration and he did not suffer anxiety or concern because he was unaware of 

the charges. In his motion, appellee argued a presumption of prejudice was warranted by the lengthy delay. In its brief, the 

State recognizes that a lengthy delay may be presumptively harmful. However, the State seeks a holding from this court that 

unless the delay was longer than six years, a presumption of harm is insufficient to require dismissal in cases where the delay 

is caused by the State’s negligence.

*4 Recently, the Texas Court of Criminal Appeals considered whether a defendant’s right to a speedy trial was violated after 

a six-year delay caused by the State’s negligence in failing to pursue the defendant. Gonzales v. State, 435 S.W.3d 801, 810 

(Tex.Crim.App.2014). In that case, as in this one, the defendant spent no time in jail before his arrest and was unaware an 

indictment had been presented. After finding the first three Barker factors all weighed in favor of the defendant, the court 

considered the fourth factor—prejudice.

The court reiterated that “the length of delay may be so excessive that it ‘presumptively compromises the reliability of a trial 

in ways that neither party can prove or identify.’ ” Id. at 812 (quoting Shaw v. State, 117 S.W.3d 883, 890 

(Tex.Crim.App.2003) (citing Doggett, 505 U.S. at 655, 112 S.Ct. 2686)). “In such instances, the defendant is absolved from 

the requirement to demonstrate prejudice.” Id.

In Gonzales, the court discusses three cases in which a lengthy delay was caused by the State’s negligence. Id. at 812–14

(citing Doggett, 505 U.S. at 653, 112 S.Ct. 2686 (over eight years); United States v. Cardona, 302 F.3d 494, 498 (5th 

Cir.2002) (five years); and United States v. Molina–Solorio, 577 F.3d 300, 304 (5th Cir.2009) (ten years)). In all three cases, 

prejudice was presumed based upon the State’s failure to affirmatively prove the delay left the defendant’s ability to defend

himself unimpaired. Id. (citing Doggett, 505 U.S. at 658, 112 S.Ct. 2686; Cardona, 302 F.3d at 498; and Molina–Solorio, 577 

F.3d at 307). In none of these cases was prejudice presumed because the length of the delay reached a “magic number.”3 The 

delay in this case was only nine months less than that of Cardona and extended more than six times beyond the minimum 

amount of time required to trigger a full Barker analysis. These cases, like Gonzales, turned upon whether the State rebutted 

or extenuated the presumption of prejudice.

Nevertheless, the State implies it bore no burden to rebut because appellee made no allegation of harm in his motion nor put 

on evidence of actual harm at the hearing. We disagree.

The State cites a prior opinion from this court, Guajardo v. State, 999 S.W.2d 566 (Tex.App.-Houston [14th Dist.] 1999, pet. 
State v. Wei, --- S.W.3d ---- (2014)

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ref’d), in which we affirmed the trial court’s denial of a motion to dismiss for violation of the right to speedy trial after a 

delay of less than five years. The State recognizes the reasoning in Guajardo was disapproved of in an unpublished decision 

by the Texas Court of Criminal Appeals in Gonzales v. State, PD–0724–12, 2013 WL 765575 (Tex.Crim.App. Feb. 27, 2013)

but claims it still supports its position that appellant needed to show actual harm to prevail on a speedy trial claim. 4 The 

Gonzales court of appeals decision relied upon our Guajardo decision:

The first three Barker factors weigh in favor of Gonzales. Furthermore, the nearly six-year delay gives 

rise to a presumption that the delay was prejudicial. However, Gonzales has failed to make a prima 

facie showing that his defense was impaired as a result of the delay. See Russell, 90 S.W.3d at 874; 

Guajardo, 999 S.W.2d at 571. We conclude that the lack of prejudice to Gonzales from the delay 

outweighs the first three Barker factors. See Russell, 90 S.W.3d at 8745(finding no speedy trial 

violation when first three factors weighed in appellant’s favor and presumptive prejudice was rebutted 

by failure to demonstrate any prejudice); Guajardo, 999 S.W.2d at 571 (same). Accordingly, we hold 

that Gonzales did not establish that his right to a speedy trial was violated, and we overrule this issue.

*5 Gonzales v. State, 04–11–00405–CR, 2012 WL 1364981 (Tex.App.-San Antonio Apr. 18, 2012, pet. granted (Sept. 26, 

2012)), rev’d, PD–0724–12, 2013 WL 765575 (Tex.Crim.App. Feb. 27, 2013). But then the Texas Court of Criminal Appeals 

reversed, expressly finding that “the Court of Appeals improperly placed the burden on the appellant to demonstrate that he 

was prejudiced by the excessive delay between his indictment and trial.” Gonzales, 2013 WL 765575, at *1. Thus, the court 

remanded to the lower court “for consideration of appellant’s claim under the correct standard for determining prejudice.” Id.

On remand, the court of appeals reviewed the record to “determine whether the State rebutted the presumptive prejudice 

caused by the six-year delay.” Gonzales v. State, 04–11–00405–CR, 2013 WL 4500656 (Tex.App.-San Antonio Aug. 21, 

2013, pet. granted (Dec. 18, 2013)), aff’d, 435 S.W.3d 801 (Tex.Crim.App.2014). After finding the State had not rebutted the 

presumptive prejudice, the court of appeals held the trial court erred in denying Gonzales’s motion to dismiss for lack of a 

speedy trial. The Texas Court of Criminal Appeals affirmed that decision stating “that the State has failed to persuasively 

rebut the presumption of prejudice in this case.” Gonzales, 435 S.W.3d at 815. In Gonzales, the court rejected the placement 

of the burden on a defendant to demonstrate actual harm arising from the delay to prevail on a speedy trial claim. We 

therefore must conclude that the burden of proof we established in Guajardo conflicts with Gonzales and is therefore no 

longer good law.

Absent a showing that appellee acquiesced in the delay, it was the State’s burden to rebut the presumption of prejudice 

because appellee was “absolved from the requirement to demonstrate prejudice.” Id. at 812. As discussed above, the record 

shows that appellee did not acquiesce in the 51–month delay. Accordingly, we conclude the State failed to vitiate the 

presumption of prejudice by proving that appellee acquiesced to the delay.

The State further argues it is “highly improbable that the appellee’s ability to mount a defense was impaired” and that the 

State’s evidence “is unlikely to have deteriorated in a way that will harm the appellee.” The State fails to cite to any evidence 

in the record supporting its suppositions. The court in Gonzales recognized the burden shifted to the State might be difficult 

to meet but it is a necessary one. Id. at 814. See Doggett, 505 U.S. at 654 n. 4, 112 S.Ct. 2686 (recognizing the Government 

“has not, and probably could not have, affirmatively proved that the delay left [the defendant’s] ability to defend himself 

unimpaired.”). Because the State failed to affirmatively prove that the excessive delay did not impair appellee’s ability to 

defend himself, the presumption of prejudice was not rebutted. The dismissal of an indictment is not to be taken lightly but 

because the State neglected to make any effort to pursue appellee for over four years we find the facts of this case fall within 

the parameters of Doggett and Gonzales. Thus the fourth factor also weighs in favor of appellee.

II. Balancing the Barker Factors

*6 Having addressed the four Barker factors, we now balance them. Weighing in favor of finding a violation of appellee’s 

speedy trial right is the excessive delay. The reason for the delay, the State’s negligence, also weighs in favor of appellee. 

Less than two months after his arrest, appellee asserted his right to a speedy trial had been violated. This factor therefore also 

weighs in his favor. Because appellee did not acquiesce to the delay and the State failed to affirmatively prove his ability to 

defend himself was not impaired by the delay, prejudice is presumed. Thus the final factor also weighs in appellee’s favor. 

We hold the weight of the four factors, balanced together, is in favor of finding a violation of appellee’s right to as speedy 
State v. Wei, --- S.W.3d ---- (2014)

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trial. Accordingly, we conclude the trial court did not err in granting appellee’s motion to dismiss the indictment based on a 

speedy trial violation. The State’s sole issue is overruled and the trial court’s order is affirmed.

1 A person is intoxicated if their blood alcohol content is more than 0.08. Tex. Pen.Code § 49.01.

2 Because the eight-month delay from appellee’s arrest until the hearing was a result of seven resets, six of which were requested by 

appellee and the State’s sole reset was only for eight days, we do not disagree with the trial court’s determination not to include 

that time period in its analysis.

3 Even though the delay in Gonzales was six years, the court did not suggest that the length of the delay must be six years to give rise 

to the presumption of prejudice. We therefore decline the State’s request to hold that a presumption of prejudice only arises after a 

delay of six years or more.

4 We discuss the unpublished Gonzales opinion only to explain why we reject the State’s argument.

5 Russell v. State, 90 S.W.3d 865, 873 (Tex.App.-San Antonio 2002, pet. ref’d).

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.