COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RICHARD ANTHONY MONTEZ

,

Appellant

,

v.

THE STATE OF TEXAS

,

Appellee

. §

§

§

§

§ No. 08

- 23

- 000 26

- CR

Appeal from the

187 th Judicial D istrict Court

o f Bexar County, Texas

(TC# 2022

- CR

- 9260 )

MEMORANDU M OPINION

This appeal turns our attention to the Sixth Amendment right to a speedy trial. 1 Appellant,

Richard Anthony Montez

, was arrested in February 2018 but not tried until November 2022

. He

was found guilty of capital murder and sentenced to life imprisonment without the possibility of

parole. In a single issue on appeal, Appellant contends the four

- year

- nine

- month delay between

his arrest and trial violated the constitutional right to a speedy trial. Th e delay here is extraordinary.

But the cause of the delay is a confluence of several factors : the COVID

- 19 pandemic

, Appellant ’ s

c hange in counsel, discovery issues in a complex case

, and some actions that can be attributed to

1 This case was transferred from the Fourth Court of Appeals pursuant to a docket equalization order issued by the

Supreme Court of Texas. See T EX

. G OV ’ T C ODE A NN

. § 73.001

. We follow the precedent of the Fourth Court of

Appeals to the extent it might conflict with our own. See T EX

. R. A PP

. P. 41.3

.2

the State. While not condoning the aggregate delay here

— which should be the rare exception and

not the rule

— we affirm the conviction

.



### B ACKGROUND

On February 2

, 2018, San Antonio Police Department officers r esponded to reports of

gunfire at a public

- housing apartment complex. O fficers located one gunshot victim in an

apartment in the complex

, 14

- year

- old Angel Gebara

, and another gunshot victim in a nearby car

,

69

- year

- old Benito Gallegos

. Each victim was transported to the hospital for treatment

. After a n

approximate six

- to

- ten

- hour standoff at an apartment in the complex

, Appellant and other

individuals, including Juan Martinez and Andres Martinez

, were taken into custody in connection

with the shooting

. Despite medical inte r vention

, both Gebara and Gallegos died from gunshot

wound s to the head. On May 10, 2018, Appellant was indicted for the capital murder s of Gebara

and Gallegos in c ause n umber 2018

- CR

- 4785B

. Juan and Andres Martinez were also indicted for

the capital murders of Gebara and Gallegos in c ause n umbers 2018

- CR

- 4785A and 2018

- CR

4785C.

A. The August 2022 t rial s etting

T h e case against Appellant was set for trial on August 1, 2022. But on the day of trial, t he

State announced not ready for trial and moved for a continuance mostly because three of its

witnesses were unavailable. The State c laimed that two of the three witnesses were retired police

investigators, both of whom were out of town at the time

. The third witness was currently under

mental health treatment. Defense counsel objected to the continuance

, arguing the State should

have secured the appearance of these witnesses by serving the m with subpoenas. After the trial

court denied th e continuance

, the State moved to dismiss the indictment

, informing the trial court3

and Appellant that the case would be reindicted. A fter conferring with Appellant, his counsel had

no object ion to the State ’ s motion to dismiss. T he trial court then dismissed the case.

B. The s econd i ndictment

, Appellant ’ s m otion to d ismiss i ndictment on s peedy

- t rial

g rounds

, and the trial.

On September 27, 2022, the State then re

- indicted Appellant for capital murder in cause

number 2022

- CR

- 9260. Through counsel, Appellant promptly moved to set aside th e indictment

on speedy

- trial grounds under the Sixth Amendment and articles 1.03, 1.04, and 1.05 of the Texas

Code of Criminal Procedure

. At a November 10 th hearing on the motion

, the trial court took

testimony from Appellant and his investigator. Along with three exhibits admitt ed at the hearing

,

the trial court took judicial notice of the clerk ’ s record in the original and re

- indicted case. Those

proofs document a chronology of events that we outline below.

At the hearing, Appellant contended that the dismissal and then reindictment of the case

was done to give the State a strategic advantage because it was not ready for trial

. The State

responded that its lead detective was out of the country for the August trial setting, and any delay

before that trial setting resulted from the amount of discovery for the case, the COVID

- 19

pandemic

, and the death of one of Appellant ’ s attorneys. At the end of the hearing

, the trial court

denied the motion to dismiss without explanation and informed the parties that the trial would

commence on November 29, 2022. 2

The case proceeded to trial at that time

. Following eight days for the guilt

- innocence phase

of trial, with 30 witnesses and over 400 exhibits, the jury returned a guilty verdict

. 3 As required

2 The trial court did not prepare findings of fact and conclusions of law in response to Appellant ’ s request that it do

so

. Appellant does not complain on appeal about the absence of the requested findings of fact and conclusions of law.

3 Juan Martinez accepted a plea deal, agreeing to plead guilty to murder as a party and to testify, if required, in

exchange for a 24

- year sentence. At Appellant ’ s eventual trial, Juan testified that he, along with Andres Martinez and

Appellant, committed the murders.4

by law, the trial court sentenced Appellant to confinement for life without the possibility of parole.

T EX

. P ENAL C ODE A NN

. § 12.31 ( establishing mandatory sentence for any person over 18 who

commits cap i tal murder where the State does not seek the death penalty )

. His sole issue on appeal

complains of the denial of his motion to dismiss the indictment based on a violation of the Sixth

Amendment right to a speedy trial. We step back to give a more detailed picture of how this case

progressed.

C. Chronology of e vents

Appellant was arrested on February 3, 2018, and originally indicted on May 1 0

, 2018

. The

court appointed attorney David Woodard to represent him

. While still represented by counsel,

Appellant filed several pro se motions on January 29, 20 19. One of those motions sought either a

“ speedy trial or that said indictment be dismissed [.] ” Another motion asked the court to dismiss

his appointed counsel because Appellant “ lost faith in counsel and no longer trusts counsel ’ s

advice. ” In April 2019, the Bexar County District Attorney recuse d himself from the case and

moved to have p ro t em counsel appointed because one of Appellant ’ s co

- defendants was

represented by an attorney who later joined the district attorney ’ s office. 4

On June 12, 2019, attorney David Woodard moved to withdraw from the case. His motion

recites that the case was set for trial on June 17, 2019, but Appellant in May had filed a grievance

against him with the State Bar. The court granted the motion and appointed attorney Oscar

Cantu, Jr. to represent Appellant. In September 2019

, t he attorney p ro t em

, citing to the “ volumes

of documents, videos, photos and scientific evidence ” along with the “ numerous witnesses,

4 O ur record does not contain an order granting that motion, but soon after attorney Miguel Najera began filing

pleadings as the p ro t em attorney representing the State.5

officers, sheriff deputies, experts, and family members of the victim ” involved in the case moved

for and obtained the appointment of an advocate attorney for the victims, and an investigator

.

In October 2019, attorney Cantu moved to obtain Appellant ’ s release from jail. Th e court

granted that motion, a nd Appellant was released from jail on December 6, 2019. Pro tem counsel

stated at that hearing on the motion that the State was not ready for trial. T he same month, the

attorney p ro t em, again citing to the size and seriousness of the case

, asked for the appointment of

second chair counsel.

The COVID

- 19 pandemic hit in the Spring of 2020. 5 The record here su pports that in

Bexar County some in

- person jury trial s resume d in August 2021

, but that regular in

- person jury

practice did not resume until March 2022. But all was not quiet d uring this interim COVID

- 19

period

. On June 17, 2020

, A ppellant was rearrested on a different charge

, and sent back to jail

.

And during the summer of 2020, the trial court heard a contested motion to compel discovery.

Local procedure includes the filing of a “ discovery acknowledgment ” form that certifies that the

State has produced the categor ies of materials described on the form ; the form includes a signature

line for defense counsel to ack nowledge the same

. Counsel for Appellant, and his two co

defendants, contended that they could not approve the form because of claimed discrepancies in

the volume of documents produced. The State had down loaded onto hard drives discovery

responses for all three cases against the three defendants, totaling 658, 466, and 643 gigabytes of

data for the respective cases. The State had also downloaded 98 additional items onto hard drives

5 On March 13, 2020, Texas Governor Greg Abbott issued a proclamation under the Texas Disaster Act of 1975

certifying that “ COVID

- 19 poses an imminent threat of disaster ” in all 254 Texas counties; he renewed that declaration

in successive months

. T he Governor of the State of Tex., Proclamation No. 41

- 3720, 45 Tex. Reg. 2087, 2095 (2020).

The same day, the Texas Supreme Court issued its first order that “ subject only to constitutional limitations, ” all courts

were required to modify their procedures to avoid the risk to court staff

, parties, attorneys

, jurors

, and the public. First

Emergency Ord. Regarding COVID

- 19 State of Disaster

, 596 S.W.3d 265 ( Tex. 2020)

.6

that were too large to produce through the E

- filing portal. These hard drives were loaded in

February and May 2020

. After taking testimony from the IT manager for the Bexar County District

Attorney ’ s office (who had collected and forwarded all the files to the several pro tem attorneys),

and after hearing argument, the trial court concluded in a contested hearing on July 23, 2020, that

the State was in discovery compliance

.

Four days later, pro tem counsel announced that the State would not seek the death penalty

against Appellant. The trial court then required that Appellant and State complete any plea

negotiations by August 31, 2020

. 6 The trial court held another status hearing on June 24, 2021,

where Appellant confirmed that he rejected the State ’ s plea offer. The parties conferred and agreed

to a December 7, 2021, trial date. Appellant ’ s counsel agreed that he had received all the State ’ s

discovery.

But in September 2021, Appellant ’ s lead attorney, Oscar Cantu , Jr.

, passed away. The trial

court in November 2021 appointed attorney Kelly Pittl to then assist in the defense. Our record

does not show an order formally continuing the December 2021 trial, but Appellant acknowledged

at the speedy trial hearing that the case could not move forward based on Cantu ’ s death.

Appellant ’ s new counsel filed written discovery requests on November 23, 2021. In

February 2022, counsel moved for the S tate to provide a witness list

, and production of material

germane to any listed witness

. The same month, counsel filed additional written requests for

documents

, and a request for a formal designation of experts and production of expert reports

. The

Clerk ’ s file contains rulings on some of those requests by the trial court on February 23, 2022

. The

trial court held other discovery hearings in March and April

. And t he Clerk ’ s record contains a

6 Appellant ’ s then counsel stated on the record that he had not gotten a complete set of the discovery materials because

the hard drive he provided to the State was too small, but that he would provide a larger drive that same afternoon.7

July 7, 2 022

, discovery acknowledgment form detailing the materials provided to Appellant and a

two

- page witness list filed by the State. At the speedy

- trial hearing, the trial court recited the litany

of discovery hearing events from its docket sheet but did not assign fault to either party for any

discovery abuse.

And as we note above, following these discovery hearings, the case was set for trial on

August 2, 2022

, but the original case and indictment were dismissed when the trial court denied

the State ’ s motion for continuance. After Appellant was reindicted, the case proceeded to trial in

November 2022, resulting in a guilty verdict.



### S TANDARD OF 

### R EVIEW AND 

### C ONTROLLING 

### L AW

The Sixth Amendment to the U.S. Constitution, made applicable to the States through the

Due Process Clause of the Fourteenth Amendment

, guarantees a defendant a right to a speedy

trial. 7 See U.S. C ONST

. amend. VI ; Klopfer v. State of North Carolina

, 386 U.S. 213, 222

– 26

(1967) ; State v. Lope z, 631 S.W.3d 107, 113 ( Tex. Crim. App. 2021) ; Balderas v. State

, 517

S.W.3d 756, 767 ( Tex. Crim. App. 2016)

. When a defendant claims that the right to a speedy trial

has been violated, courts analyz e and weigh four factors: (1) the length of delay; (2) the reason for

the delay; (3) the defendant ’ s assertion of the right; and (4) prejudice to the defendant. Barker v.

Wingo

, 407 U.S. 514, 530 (1972) ; Lopez

, 631 S.W.3d at 113 ; Balderas

, 517 S.W.3d at 767

. Courts

must weigh the strength of each of the Barker factors and then balanc e their relative weights

considering the State ’ s and defendant ’ s conduct. Cantu v. State

, 253 S.W.3d 273, 280 ( Tex. Crim.

App. 2008)

.

7 A defendant also holds the right to a speedy trial under A rticle 1.05 of the Texas Code of Criminal Procedure

. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 1.05 ; Hull v. State

, 699 S.W.2d 220, 221 ( Tex. Crim. App. 1985) (en banc)

. On

appeal

, Appellant does not raise a separate issue under state law

.8

The evidentiary burden differs depending on the Barker factor at stake. The State carries

the burden to justify the length of the delay

. Cantu

, 253 S.W.3d at 280

. The defendant carries the

burden to show the delay is “ presumptively prejudicial ” and to prove he or she asserted his right

and suffered prejudice

. Lopez

, 631 S.W.3d at 113

– 14 ; Cantu

, 253 S.W.3d at 280

.

In reviewing the trial court ’ s analysis of the Barker factors, we apply a bifurcated standard

of review. Lopez

, 631 S.W.3d at 113

– 14 ; Balderas

, 517 S.W.3d at 767

– 68

. Factual components

are reviewed under an abuse of discretion standard, but we review legal components de novo.

Lopez

, 631 S.W.3d at 113

– 14

. Consequently, we defer to explicit or implicit findings if they are

supported by the record and sustain the trial court ’ s ruling

. Id. at 114 ; Balderas

, 517 S.W.3d at

767

– 68

. Engaging in the Barker speedy

- trial analysis on appeal requires us to assess each factor

individually yet balance them holistically

. Lopez , 631 S.W.3d at 114 ; Balderas , 517 S.W.3d at

768

.



### D ISCUSSION

A. Length of d elay

The first Ba r ker factor

— t he len gth of delay

— is a threshold factor. A defendant carries the

burden to show the delay is presumptively prejudicial. Lopez

, 631 S.W.3d at 113

– 114

. A defendant

satisfies that burden by convincing the reviewing court that the delay in the case has crossed the

threshold dividing ordinary from presumptively prejudicial delay. Lopez

, 631 S.W.3d at 114

( citing Doggett v. U.S.

, 505 U.S. 647, 651

– 52 (1992) ). If the defendant fails to carry that burden,

the reviewing court need not trigger a full Barker speedy

- trial analysis. Lopez

, 631 S.W.3d at 114

.

The delay is measured from the time the defendant is arrested or charged to the time of trial or

demand for a speedy trial. State v. Lampkin

, 630 S.W.3d 559, 563 ( Tex. App.

— San Antonio 2021,

no pet.)

. Because the length of delay in each case depends on the unique circumstances of that9

case, there is no formula for concluding that a certain delay is presumptively prejudicial. Lopez

,

631 S.W.3d at 114

. Even so, there are signposts. A delay approaching one year can trigger the

Barker speedy

- trial analysis. Balderas

, 517 S.W.3d at 768

. A delay exceeding three and one

- half

years is well beyond the minimum necessary to trigger th is analysis. Id. at 768

.

Here, the delay of four y ears and nine months between Appellant ’ s arrest and his trial is

sufficient to trigger a complete Barker speedy

- trial analysis. At the hearing on the motion

,

Appellant offered uncontroverted testimony of his arrest in February 2018

, and defense counsel

argued the length of the delay triggers a full Barker speedy

- trial analysis. T he State did not ar gue

otherwise below

, or on appeal

.

On appeal, Appellant contends that the delay of four years and nine months between his

arrest and trial also “ weighs heavily in [his] favor

. . . . ” The State “ concedes that

. . . the length of

delay here is sufficient to trigger the speedy

- trial inquiry[,] ” but counters that the length of the

delay, “ does not independently weigh against either party in its own right. ” (emphasis original).

According to the State, any weight attributable to the length of the delay should be considered

under the fourth Barker factor

— prejudice

— not under the first factor

— length

— to prevent “ double

counting ” the effect of a lengthy delay in Appellant ’ s favor. In support of its argument, the State

directs our attention to the following passage in Doggett

, it alicizing the last sentence for our

benefit:

The first of these is actually a double enquiry. Simply to trigger a speedy trial

analysis, an accused must allege that the interval between accusation and trial has

crossed the threshold dividing ordinary from “ presumptively prejudicial ” delay,

since, by definition, he cannot complain that the government has denied him a

“ speedy ” trial if it has, in fact, prosecuted his case with customary promptness. If

the accused makes this showing, the court must then consider, as one factor among

several, the extent to which the delay stretches beyond the bare minimum needed

to trigger judicial examination of the claim. This latter enquiry is significant to the

speedy trial analysis because, as we discuss below, the presumption that pretrial10

delay has prejudiced the accused intensifies over time. In this case, the

extraordinary 8 1⁄2

- year lag between Doggett ’ s indictment and arrest clearly suffices

to trigger the speedy trial enquiry; its further significance within that enquiry will

be dealt with later

.

Doggett

, 505 U.S. at 651

– 52 (emphasis added) (internal citations omitted)

.

Yet, in Zam o rano v. State

, 84 S.W.3d 643

, 649 ( Tex. Crim. App. 200 2 ) (en banc)

, the Court

of Criminal Appeals appears to have considered this very passage in Doggett in analyzing the first

Barker factor

. The court concluded that a sufficient delay by itself could weigh heavily against the

State

. See Zam o rano

, 84 S.W.3d at 648

– 49

. There, the c ourt concluded that because delays of two

years and ten months between arrest and speedy

- trial hearing and of nearly four years between

arrest and plea hearing “ in this plain

- vanilla DWI case

, ” “ stretched well beyond the bare minimum

needed to trigger judicial examination of the claim, [and] this factor

— in and of itself

— weighs

heavily against the State. ” Id. at 649

.

This case was not a plain

- vanilla DWI case

. I t was a capital

- murder case with co

defendants and involv ed pro tem prosecutors

, a succession of defense counsel

, and disrupt ion by

the COVID

- 19 pandemic

. That said, the nearly

- five

- year delay here stretched far beyond the

minimum needed to trigger the added inquiry

. So this factor weighs heavily in favor of finding a

speedy

- trial

- right violation. See Baldera s, 517 S.W.3d at 768 (eight

- year delay) ; Zamorano

, 84

S.W.3d at 649 (nearly

- four

- year delay) ; Dragoo v. State

, 9 6 S.W.3d 308, 314 ( Tex. Crim. App.

2003) (three

- and

- a

- half

- year delay).

B. Reasons for d elay

The second Barker factor addresses the reason for the delay. T he State bears the burden to

justify the length of the delay. Cantu

, 253 S.W.3d at 280

. In assessing the State ’ s justification, “ we

assign different weights to different reasons. ” Balderas

, 517 S.W.3d at 768

. “ A deliberate attempt11

to delay the trial in order to hamper the defense should be weighted heavily against the

government. ” In contrast, “ [d]elay caused by either the defendant or his counsel weighs against

the defendant. ” Baldera s, 517 S.W.3d at 768

. “ In the absence of an assigned reason for the delay,

a court may presume neither a deliberate attempt on the part of the State to prejudice the defense

nor a valid reason for the delay. ” Id. (internal quotation marks omitted). The Court also

acknowledges a middle ground b etween “ diligent prosecution and bad

- faith delay ” that it termed

“ official negligence [.] ” Doggett

, 505 U.S. at 656

– 57

. “ While not compelling relief in every case

where bad

- faith delay would make relief virtually automatic, neither is negligence automatically

tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him. ” Id.

On appeal, the State argues that it can at most be held responsible for only ten months of

the delay and that its culpability was not intentional but at most, negligent

. The ten months is made

up of (1) six

- months that the State suggests it may have contributed to discovery issues

, and (2)

the four

- month s between the August 2, 2022, trial setting and the eventual No vember 2022 trial.

Even for that, the State claims any failure on its part was merely negligent and was not for some

strategic advantage. Appellant counters that the State has no justification for the delay and the

second Barker factor should weigh heavily against the State. Appellant ’ s assertion is belied by the

record.

(1) Delay a ttributed to Appellant

The pleadings record (that the trial court took judicial notice of) establishes that a portion

of the delay is attributable to Appellant. He was represented by four attorneys during this case.

The first attorney, David Woodard, was appointed on May 1, 2018

. But Woodard moved to

withdraw on June 12, 2019, five days before a first trial setting

, because Appellant filed a grievance

against him with the State Bar the month before

. T he trial court appointed his second attorney,12

Oscar Cantu , Jr.

, on June 24, 2019. Appellant ’ s third attorney, Orlando Castanon, was appointed

on July 23, 2020 to assist defense counsel Cantu. Defense counsel Cantu died on September 26,

2021

. Appellant ’ s fourth attorney, Kelly Pittl, was appointed on November 9, 2021. Defense

counsels Castanon and Pittl represented Appellant during the speedy

- trial hearing and the trial on

the merits.

At the hearing on his motion to dismiss, Appellant agreed that because of Cantu ’ s death

and defense counsel Pittl ’ s later appointment, the trial setting in December 2021 was postponed.

Appellant also agreed with the State that the case had been reset a few times on the defense ’ s

behalf to ensure that his attorneys “ had everything ” in terms of discovery, even before the COVID

19 pandemic. The record suggests that the case would have proceeded to trial earlier if not for the

withdrawal of Woodard and the death of Cantu. Because the record contains evidence suggesting

that Appellant ’ s changes in counsel delayed two potential trial settings

, the second Barker factor

weighs against him for significant periods between the date of arrest through December 2021

. See

Vermont v. Brillon

, 556 U.S. 81, 90

– 91 (2009) (reaffirming that an attorney is the defendant ’ s

agent when acting or failing to act and delay caused by defense counsel is charged to the

defendant).

(2) Indeterminate periods of delay

Some periods of delay can be assigned neither to Appellant n or the State. The suspension,

and then later limitations on jury trials because of COVID

- 19 fits that category. See State v.

Elizondo

, No. 04

- 21

- 00489

- CR, 2022 WL 3047103, at *3 ( Tex. App.

– San Antonio Aug. 3, 2022)

(mem. op., not designated for publication) ( “ However, courts that have considered the impact of

the pandemic on speedy

- trial rights have nearly all countenanced additional delays resulting from

the pandemic. ” ); United States v. Dunn

, 83 F.4th 1305, 1316 (11th Cir. 2023) ( “ The government13

points out that our sister circuits have held that the national public health emergency caused by the

global COVID

- 19 pandemic provided sufficient justification for a district court ’ s district

- wide

blanket order temporarily continuing jury trials during this pandemic and excluding that time under

the Speedy Trial Act ’ s ends

- of

- justice exception. ” ) (collecting cases). Although some delays, like

overcrowded courts, can still count “ less heavily ” against the State, we are reluctant to put the

early phase of the COVID

- 19 pandemic in that category. And for the later periods of the pandemic

,

when our record shows that some jury trials were proceeding, Appellant lost his December 2021

trial setting due to the unfortunate passing of his counsel.

Nor does our record show that the State is uniquely responsible for any specific period of

delay arising from discovery issues. Instead, the case involved documents and exhibits measured

in gigabytes. Over 400 exhibits were eventually admitted at trial through some of the 30 testifying

witnesses. O n July 23, 2020

, t he trial court determined that the State complied with its discovery

obligations

. Yet when new counsel entered the case in late 2021, new written discovery motions

were filed. Other than an issue over a ballistic s expert, which is little explained in our record, we

cannot determine that the discovery hearings in the Spring of 2022 were caused by the State or

advanced the case. Although we might discern some limited periods of indeterminate delay, th ey

would only count slightly against the State.

(3) Delay Attributed to Stat e

We can assign four months and 27 days of delay to the State based on the dismissal of the

indictment on August 1, 2022

, which postponed trial until Novem ber 29, 2022. What is less clear

is if t hat action was based on negligence of pr o tem counsel in not arranging for three witnesses to

make themselves available for the August trial date, or if it was designed to gain a strategic14

advantage. As there is sufficient evidence in the record to suggest only negligence, we could not

disturb an implied finding of negligence (and not a deliberate attempt to delay the trial).

In summary, the reason for much of the delay in this case can be assigned to Appellant or

his agent attorneys. Additionally, much is due to neutral factors that weigh neither against the

Appellant or the State

, or only s omewhat against the State

. Of the 57 months it took to resolve this

case, we can only confidently assign almost a five

- month period to the State. Th e reason for delay

factor weighs heavily for the State

.

C. Assertion of r ight to s peedy t rial

The third Barker factor focuses on the defendant ’ s assertion of the right to a speedy trial.

Balderas

, 517 S.W.3d at 771

. Appellant carries the burden to prove he asserted his right. Id

. That

assertion “ should be, at the very least, unambiguous. ” Henson v. State

, 407 S.W.3d 764, 769

( Tex. Crim. App. 2013)

. And t he assertion of the right “ is entitled to strong evidentiary weight in

determining whether the defendant has been deprived of that right. ” Balderas

, 517 S.W.3d at 771

.

“ A defendant ’ s lack of a timely demand for a speedy trial indicates strongly that he did not really

want one. ” Id. “ The longer the delay becomes, the more likely a defendant who wished a speedy

trial would be to take some action to obtain it. ” Id. (internal quotation marks omitted). This factor

acknowledges “ the reality that defendants may have incentives to employ delay as a ‘ defense

tactic ’ : delay may ‘ work to the accused ’ s advantage ’ because ‘ witnesses may become unavailable,

or their memories may fade ’ over time. ” Brillon

, 556 U.S. at 90 ( quoting Barker

, 407 U.S. at 521 )

.

“ Thus, inaction weighs more heavily against a violation the longer the delay becomes. ” Balderas

,

517 S.W.3d at 771 (internal quotation marks omitted).

Appellant argues on appeal that “ [ he ] timely asserted his speedy trial right ” when he

“ requested a speedy trial in 2019 and filed his speedy trial motion on October 26, 2022. ” We15

disagree. Appellant ’ s 2019 pro se motion s for a speedy trial w ere filed while he was being

represented by counsel. The first motion, titled “ Motion for Speedy Trial ” was filed on January 29,

2019. It was one of several motions filed by Appellant that day. 8 He was represented then by

defense counsel David Woodard. The second motion, titled “ Motion to Set Aside Indictment ”

, was

filed on July 10, 2019. At that time, Appellant was represented by defense counsel Oscar Cantu

, Jr.

A defendant has no right to hybrid representation

, and so a trial court can disregard any pro

se motion filed by a defendant who is represented by counsel. Melendez v. State

, 467 S.W.3d 586,

591 ( Tex. App.

— San Antonio 2015, no pet.) ( citing Robinson v. State

, 240 S.W.3d 919, 922

( Tex. Crim. App. 2007) ). Nothing in the record shows that Appellant ’ s two pro se motions were

adopted by appointed counsel, presented to the trial court, or ruled on by the trial court. These pro

se filings cannot be considered assertions of the speedy

- trial right under the Barker analysis

because they were not considered and ruled on by the trial court

. See Ussery v. State

, 596 S.W.3d

277, 288 ( Tex. App.

— Houston [1st Dist.] 2019, pet. ref ’ d ) (concluding that defendant ’ s assertion

of speedy

- trial right in his pro se motions was ambiguous because motions “ were not required to

be considered by the trial court and it is unclear if, or when, those motions or other assertions of

his right to speedy trial were presented to the trial court ” ); Daniels v. State

, No. 04

- 18

- 00474

- CR,

2019 WL 1139553, at *4 n.5 ( Tex. App.

— San Antonio Mar. 13, 2019, no pet .) (mem. op., not

designated for publication) (holding that “ [b]ecause [defendant] was represented by counsel when

he filed his pro se motions, [reviewing court] cannot consider them for purposes of the Barker

analysis ” )

.

The only motion mentioning the right to a speedy trial ruled on by the trial court is the one

filed by appointed counsel on October 26, 2022. In that motion, Appellant did not demand a speedy

8 Appellant moved to quash the indictment, to dismiss, and to reduce bond. He also filed a motion in limine.16

trial. Instead, he sought dismissal of the indictment on speedy

- trial grounds. During the hearing on

th e motion, defense counsel similarly asked the trial court to “ dismiss ” the case. “ Filing for a

dismissal instead of a speedy trial will generally weaken a speedy

- trial claim because it shows a

desire to have no trial instead of a speedy one. ” Cantu

, 253 S.W.3d at 283

.

Because Appellant did not validly and unambiguously assert his right to a speedy trial and

sought a dismissal rather than a speedy trial, we conclude that the third factor weighs heavily

against him.

D. Prejudice

The fourth Barker factor encompasses any prejudice to the defendant because of the length

of delay. Appellant carries the burden to show some prejudice

, but a showing of actual prejudice

is not required

. Balderas

, 517 S.W.3d at 77 2

. In determining whether a defendant has been

prejudiced, we consider the three interests a speedy trial is intended to guarantee : “ (1) preventing

oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3)

limiting the possibility that the defense will be impaired. ” Id. at 772

. Of these interests, the third

one “ is the most important because the fairness of the criminal

- justice system is distorted when a

defendant is unable to adequately prepare his defense. ” Id

.

Taking these interests in turn, we find that Appellant presented some evidence of pr ejudice,

yet we cannot assign great weight to it because none of that prejudice is shown to have impaired

his ability to defend himself

— the third and most important interest

.

Appellant te stified that he had been incarcerated for “ three years and eleven months

altogether ” as of August 2022 when trial was scheduled to begin. For some of that period, he was

assigned to a segregated jail unit ( “ red ” ) that meant being held in a small cell for 23 hours but

sometimes for 32 hours, not communicating with family, not seeing the sun, and not exercising17

outside the cell. The record does not show how much of Appellant ’ s incarceration included this

segregated unit. And Appellant was incarcerated t hree times; (1) from his initial arrest o n

February 3

, 2018 until he was released on a personal recognizance bond on December 6

, 2019 ; (2)

starting o n June 1 7

, 2020 when he was rearrest ed for violating his PR bond based on a new charge

until August 1

, 2022 when the State dismissed the first indictment; and (3) from his rearrest on the

new indictment on October 10, 2022 until trial

.

Appellant also testified that his lengthy pretrial incarceration impacted his mental health,

even while released: “ It ’ s messed me up a lot. It

-- this is a lot. It ’ s depressing. It ’ s discouraging.

A lot of things. When I got out, I didn ’ t feel right. I felt people staring at me and I just

-- this has

taken a real big toll on me. ” He added that his detention had impacted his family relationships.

According to Appellant, he was unable to see his children while incarcerated and, because of his

charges, he could not continue custody proceedings of his daughter, who was molested after being

returned to her family. Appellant also related that his grandparents died while he was incarcerated

and that he was unable to attend their funerals.

The record corroborat es Appellant ’ s lengthy pretrial incarceration, though more than half

of it could have result ed in his own actions leading to the revocation of the PR bond. There is no

other evidence in the record corroborating or rebutting Appellant ’ s testimony as to his anxiety and

concern. But the State argues that Appellant ’ s testimony is not enough to conclude that he suffered

any anxiety or concern beyond that ordinarily associated with being charged with a crime. See

Cantu

, 253 S.W.3d at 286 ( “ [E]vidence of generalized anxiety, though relevant, is not sufficient

proof of prejudice under the Barker test, especially when it is no greater anxiety or concern beyond

the level normally associated with a criminal charge or investigation. ” ). Appellant recognizes in

his brief, many of the purported harms

— psychological distress, family disruption, and solitary18

confinement

— resulted from the nature of the charges against him rather than the length of delay.

Even so, there is no dispute that Appellant was incarcerated for years while awaiting trial. There

is thus probative evidence of some prejudice

.

On appeal, Appellant focuses on the length of incarceration and its impacts on Appellant

but he does not develop a factual basis for how it impaired his defense at trial. 9 Instead, relying

on Doggett

, Appellant argues that he need not spe cifically show how the delay impaired his

defense because the excessive delay alone presumptively establishes prejudice

, an argument he

did not raise in the trial court

. Appellant focus es on the Court ’ s statement in Doggett that

“ excessive delay presumptively compromises the reliability of a trial in ways that neither party can

prove

. . . or identify. ” Doggett

, 505 U.S. at 655

– 56

. But t hat reliance is misplaced because Doggett

itself recognized, in the very next sentence that “ such presumptive prejudice cannot alone carry a

Sixth Amendment claim without regard to the other Barker criteria

. . . . ” Id

. at 656

. Moreover, the

period of delay that might create presumptive prejudice must be assignable to the State, either

through its negligent delay or intentional conduct. Id. at 657

– 58

. As discussed above, we assign

only a small portion of the delay to th e State, which occurred later in the proceedings. It is hard to

conceptualize how that delay presumptively prejudiced Appellant. Furthermore, any presumptive

prejudice that may exist because of the length of the delay is extenuated by a defendant ’ s

acquiescence in the delay or by his failure to employ a remedy that would have guaranteed him a

speedy trial. Dragoo

, 96 S.W.3d at 315 ; Hopper v. State

, 520 S.W.3d 915, 929 ( Tex. Crim. App.

2017)

. Indeed, “ [d]elay is not an uncommon defense tactic ” and “ may work to the accused ’ s

advantage. ” Barker

, 407 U.S. at 521

.

9 At the hearing below, Appellant called his private investigator who identified two witnesses that the investigator

was not able to locate, and one who had died by the time the investigator located him

. He does not advance in his brief

on appeal that these persons would have helped his defense.19

We assess this fourth Barker factor as neutral or at most only slightly favoring Appellant

.

A lthough Appellant has shown some evidence of prejudice to his person resulting from his lengthy

pretrial incarceration, th e prejudice is mitigated greatly by his own behavior, his acquiescence in

much of the delay, and his failure to establish that the delay presumptively impaired his defense.

E. Balancing the f

actors

While we rely on the trial court ’ s first

- hand view to decide facts, o ur balance of the four

factors is de novo

. Balderas

, 517 S.W.3d at 768

. That de novo review is guided by these cautionary

comments from the Texas Court of Criminal Appeals:

Because dismissal of the charges is a radical remedy, a wooden application of the

Barker factors would infringe upon “ the societal interest in trying people accused

of crime, rather than granting them immunization because of legal error. ” Thus,

courts must apply the Barker balancing test with common sense and sensitivity to

ensure that charges are dismissed only when the evidence shows that a defendant ’ s

actual and asserted interest in a speedy trial has been infringed. The constitutional

right is that of a speedy trial, not dismissal of the charges.

Cantu

, 253 S.W.3d at 281 ( quoting United States v. Ewell

, 383 U.S. 116, 121 (1966) (footnotes

omitted ) ).

The length of delay weighs heavily in Appellant ’ s favor. We also acknowledge that he has

shown some prejudice from this delay for its impact on him, but not for the conduct of his defense.

The factor that weighs most heavily against Appellant was the failure to assert his right to a speedy

trial, and when he first did so, he sought dismissal and not trial

. Other than the pro se filings of a

represented party

— which courts do not consider

— the first mention of the speedy trial right

appears in the 53 rd month of a 57

- month proceeding

. And finally, while we can ascribe s ome delay

to the State, and some to the judicial system

, most of the delay stemmed from factors outside

anyone ’ s control or Appellant ’ s (or his counsel ’ s) conduct. A holistic balance of the four factors

does not support Appellants ’ claim. See Balderas

, 517 S.W.3d at 773 (reaching the same20

conclusion based on analogous a ssessment of the same factors ); Munoz

- Cruz v. State

, No. 04

- 21

-

00173

- CR, 2022 WL 3908847, at *4

– 5 ( Tex. App.

— San Antonio Aug. 31, 2022

, no pet. )

(mem. op., not designated for publication) (same)

.



### C ONCLUSION

We overrule Appellant ’ s sole issue. We affirm the trial court ’ s judgment.

JEFF ALLEY

, Chief Justice

January 31, 2024

Before Alley

, C.J., Palafox and Soto

, JJ.

(Do Not Publish)