Opinion filed July 16, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-13-00172-CR

__________

LARRY TORRES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 244th District Court

Ector County, Texas

Trial Court Cause No. C-33,146

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

Larry Torres appeals his jury conviction for aggravated robbery. TEX. PENAL 

CODE ANN. § 29.03 (West 2011). The trial court assessed his punishment at 

confinement in the Institutional Division of the Texas Department of Criminal 

Justice for a term of thirty years. In four issues on appeal, Appellant argues that the 

trial court erred when it denied his motion to set aside the indictment for a violation 

of his right to a speedy trial, when the trial court allowed a chemist to testify about 
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the chemical makeup of a substance without the actual substance being admitted, 

when the trial court failed to suppress evidence found as a result of a purportedly 

illegal search of his vehicle, and when the trial court failed to find that the basis for 

the stop was invalid. We affirm.

Background Facts

Appellant was found guilty of aggravated robbery that was alleged to have

occurred on May 16, 2005. Appellant was indicted on May 8, 2006. Appellant did 

not go to trial until April 30, 2013. The day before trial, Appellant filed a motion to 

set aside the indictment for violation of his right to a speedy trial. The trial court 

conducted a hearing and denied Appellant’s motion.

The jury found Appellant guilty, and he elected for the trial court to assess

punishment. During the punishment phase of trial, evidence was admitted about an 

extraneous offense that occurred on August 1, 2012. Appellant was stopped for 

failure to come to a complete stop at the designated point. Appellant stopped 

approximately five feet past a stop sign. Officers asked Appellant to step out of the 

vehicle, and they found a substance in a clear plastic bag in Appellant’s hand. After 

searching his vehicle, officers found several more clear plastic bags filled with white 

powder.

The State questioned Marissa Silva, a chemist with the Texas Department of 

Public Safety Laboratory in Midland, during the punishment phase. Silva testified 

that she analyzed the substance found during the traffic stop on August 1, 2012. 

Silva concluded that it was 1.07 grams of cocaine. Appellant did not object to this 

testimony. The actual cocaine was not admitted into evidence.

Analysis

In his first issue, Appellant asserts that his right to a speedy trial was violated 

when the trial court denied his motion to set aside the indictment. The Sixth 

Amendment of the United States Constitution, made applicable to the states through 
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the Fourteenth Amendment, provides that, “[i]n all criminal prosecutions, the 

accused shall enjoy the right to a speedy and public trial.” U.S. CONST. amend. VI; 

see also Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014). Courts 

determine a speedy trial claim on an “ad hoc basis” by analyzing and weighing four 

factors: (1) the length of the delay, (2) the State’s reason for the delay, (3) the 

defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant 

because of the length of delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); 

Gonzales, 435 S.W.3d at 808. The State has the burden to justify the length of the 

delay, while the defendant has the burden to prove he asserted his right and is 

prejudiced. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). The 

defendant’s burden on the latter two factors “varies inversely” with the State’s 

degree of culpability for the delay. Id. (quoting Robinson v. Whitley, 2 F.3d 562, 

570 (5th Cir. 1993)) (internal quotation marks omitted). When conducting the 

balancing test, no single factor is determinative, and the conduct of both the 

prosecutor and the defendant must be weighed. Barker, 407 U.S. at 530, 533; State v. 

Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

To trigger a speedy trial analysis, the defendant must make an initial showing 

that “the interval between accusation and trial has crossed the threshold dividing 

ordinary from ‘presumptively prejudicial’ delay.” Gonzales, 435 S.W.3d at 808

(quoting Doggett v. United States, 505 U.S. 647, 651–52 (1992)) (internal quotation 

marks omitted). If the defendant makes a threshold showing of presumptive 

prejudice, the court must consider and weigh each of the remaining Barker factors.

Id. (citing Munoz, 991 S.W.2d at 821–22).

If the right to a speedy trial has been violated, the remedy is dismissal of the 

charging instrument with prejudice. Cantu, 253 S.W.3d at 281. Because this is an 

extreme remedy, “courts must apply the Barker balancing test with common sense 

and sensitivity to ensure that charges are dismissed only when the evidence shows 
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that a defendant’s actual and asserted interest in a speedy trial has been infringed.” 

Id. “The constitutional right is that of a speedy trial, not dismissal of the charges.” 

Id.

When reviewing the trial court’s ruling on a speedy trial claim, we apply a 

bifurcated standard of review. See Gonzales, 435 S.W.3d at 808. Because the State 

prevailed in the trial court, we presume the trial judge resolved any disputed fact 

issues in the State’s favor, and we defer to the implied findings of fact that the record 

supports. Cantu, 253 S.W.3d at 282 (citing Zamorano v. State, 84 S.W.3d 643, 648 

(Tex. Crim. App. 2002)). We review legal questions de novo to determine whether 

there was sufficient presumptive prejudice to proceed to a Barker analysis and the 

weighing of the Barker factors. Gonzales, 435 S.W.3d at 809. We must uphold the 

trial court’s ruling if it is supported by the record and is correct under the applicable 

law. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003).

The alleged incident occurred in 2005, and Appellant was indicted in 2006. 

Appellant waived arraignment in March 2012. He filed a motion for continuance on 

June 14, 2012. Appellant did not go to trial until April 2013. Thus, almost seven

years passed between when Appellant was indicted and when Appellant went to trial. 

This multiple-year delay was presumptively prejudicial and weighs against the State. 

See Cantu, 253 S.W.3d at 281 (citing Doggett, 505 U.S. at 652 n.1). Accordingly, 

we must proceed with an analysis of the remaining Barker factors.

The next factor considers the reasons for the delay. Barker assigns different 

weights to different reasons to justify the delay. Barker, 407 U.S. at 531. “A 

deliberate attempt to delay the trial in order to hamper the defense should be weighed 

heavily against the government.” Id. However, a more neutral reason should be 

weighed less heavily, but is still considered against the State, since the ultimate 

responsibility for a speedy trial rests with the State. Id. “Finally, a valid reason, 

such as a missing witness, should serve to justify appropriate delay.” Id. The State 
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argues that the delay was due to Appellant’s incarceration. Appellant has not 

asserted that the State deliberately delayed trial. Thus, the more neutral reason 

should be considered. This factor weighs against the State, although less heavily. 

Id.

Regarding the third Barker factor, the defendant bears the responsibility to 

assert his right to a speedy trial. Cantu, 253 S.W.3d at 282. Whether and how a 

defendant chooses to assert his right “is closely related to the other three factors 

because the strength of his efforts will be shaped by them.” Id. at 282–83. A 

defendant’s failure to timely seek a speedy trial does not amount to a waiver of the 

right. Shaw, 117 S.W.3d at 890 (citing Barker, 407 U.S. at 532). However, a 

defendant’s failure to timely demand a speedy trial makes it difficult for the 

defendant to prevail on a speedy trial claim because the failure to timely demand a 

speedy trial indicates strongly that he did not really want a speedy trial and was not 

prejudiced by not having one. Id.; see also Barker, 407 U.S. at 536 (“[B]arring 

extraordinary circumstances, we would be reluctant indeed to rule that a defendant 

was denied this constitutional right on a record that strongly indicates . . . that the 

defendant did not want a speedy trial.”); Harris v. State, 827 S.W.2d 949, 957 (Tex.

Crim. App. 1992) (“[A]ppellant’s lack of a timely demand for a speedy trial indicates 

strongly that he did not really want a speedy trial.”). The longer the delay becomes, 

the more heavily a defendant’s inaction weighs against him. Shaw, 117 S.W.3d at 

890. A request that the trial court dismiss the charges for a speedy trial violation, 

rather than a request for a prompt trial setting, weakens the strength of a speedy trial 

claim because it indicates a desire to avoid trial rather than to obtain a speedy trial. 

Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. [Panel Op.] 1983); 

Orosco v. State, 827 S.W.2d 575, 577 (Tex. App.—Fort Worth 1992, pet. ref’d).

Appellant first asserted his speedy trial right when he moved to set aside the 

indictment almost seven years after he had been indicted. Appellant asserted this 
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right one day before trial was to begin. This factor weighs heavily against finding a 

speedy trial violation because Appellant’s actions demonstrated only the desire to 

avoid a trial and obtain a dismissal rather than to obtain a speedy trial. See 

Barringer v. State, 399 S.W.3d 593, 601–02 (Tex. App.—Eastland 2013, no pet.).

The last Barker factor to consider is prejudice to the defendant. “Because 

‘pretrial delay is often both inevitable and wholly justifiable,’” this factor “examines 

whether and to what extent the delay has prejudiced the defendant.” Cantu, 253 

S.W.3d at 285 (quoting Doggett, 505 U.S. at 656). The prejudice must be assessed 

in light of the interests that the speedy trial right is meant to protect: (1) preventing 

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

and (3) limiting the possibility that the defense will be impaired. Id.; see also Barker, 

407 U.S. at 532. Of these three interests, the possibility the defense will be impaired 

by dimming memories and the loss of exculpatory evidence is the most serious 

“because the inability of a defendant adequately to prepare his case skews the 

fairness of the entire system.” Barker, 407 U.S. at 532; see also Doggett, 505 U.S. 

at 654; Gonzales, 435 S.W.3d at 812.

Appellant was incarcerated for another offense for the majority of the delay. 

There was no evidence of oppressive pretrial incarceration for this offense. 

Although Appellant testified at the hearing, there is no evidence that Appellant 

suffered from anxiety or concern because of the delay. Finally, Appellant’s counsel

expressed concerns about memories fading. However, there was no showing of any 

actual prejudice in the form of lost exculpatory evidence. Shaw, 117 S.W.3d at 890–

91. Appellant did not present any witnesses at trial. Additionally, his trial counsel

was able to cross-examine the State’s primary witness about her memory from eight

years ago. Accordingly, this factor weighs against finding a violation of Appellant’s 

right to a speedy trial.
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Weighing in favor of finding a violation of Appellant’s right to a speedy trial 

are the length of delay and the neutral reason for the delay by the State. However, 

the factors weighing against Appellant are the facts that Appellant failed to assert 

his right until the day before trial was to begin and that he failed to demonstrate any 

prejudice. We hold that the weight of the four factors, balanced together, is against 

finding a violation of Appellant’s right to a speedy trial. Barker, 407 U.S. at 534;

Shaw, 117 S.W.3d at 891. Thus, the trial court did not abuse its discretion when it 

denied Appellant’s motion to set aside the indictment on speedy trial grounds. We 

overrule Appellant’s first issue. 

In his second issue, Appellant challenges the admission of Silva’s testimony 

during the punishment phase about her analysis of the substance found in 

Appellant’s possession at the time of his arrest. Appellant argues that, since the 

cocaine was not admitted as evidence, Silva could not testify that what she tested 

was cocaine. The State questioned Silva about her credentials as a chemist for the 

Texas Department of Public Safety Laboratory in Midland. Silva testified that she 

analyzed the substance and concluded that it was 1.07 grams of cocaine. Appellant 

did not object to this testimony. The actual cocaine was not admitted into evidence.

Appellant has waived any objection to the admission of Silva’s testimony by 

not objecting at trial. TEX.R. APP. P. 33.1. However, even if Appellant had objected 

at trial, it would not have been error for the trial court to admit Silva’s testimony. 

We review a trial court’s decision to admit evidence under an abuse of discretion 

standard. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). A 

chemist’s opinion is admissible even if the facts or data relied upon are not admitted 

into evidence. TEX. R. EVID. 703; Henderson v. State, 822 S.W.2d 171, 173 (Tex. 

App.—Houston [1st Dist.] 1991, no pet.). The trial court did not abuse its discretion 

when it admitted the testimony of Silva concerning the cocaine. We overrule 

Appellant’s second issue. 
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In his third issue, Appellant contends that the trial court erred when it failed 

to suppress any evidence found inside the vehicle he was driving after the police 

stopped him at an intersection. Appellant alleges that the search of his vehicle was 

illegal as a search incident to an arrest. See Arizona v. Gant, 556 U.S. 332, 339 

(2009). The State argues that the search was reasonable under the automobile 

exception to the Fourth Amendment. See Wiede v. State, 214 S.W.3d 17, 24 (Tex. 

Crim. App. 2007). In this regard, “Gant did not diminish the reach of the automobile 

exception.” Barnes v. State, 424 S.W.3d 218, 225 (Tex. App.—Amarillo 2014, no 

pet.) (citing Gant, 556 U.S. at 346–47).

Appellant did not object at trial to the search that he complains about on 

appeal. Thus, Appellant has waived this issue. TEX. R. APP. P. 33.1. However, we 

further conclude that the trial court would not have abused its discretion if it had 

overruled an objection to the contraband discovered inside his vehicle during the 

search. Under the automobile exception, officers “may conduct a warrantless search 

of a vehicle if it is readily mobile and there is probable cause to believe that it 

contains contraband.” Keehn v. State, 279 S.W.3d 330, 335 (Tex. Crim. App. 2009). 

Police may conduct a warrantless search of a vehicle if they have probable cause to 

believe that the vehicle contains contraband. Id. Probable cause exists when there 

is a “fair probability” of finding inculpatory evidence at the location being searched. 

Illinois v. Gates, 462 U.S. 213, 238 (1983). We consider the totality of the 

circumstances to determine probable cause. Id.; Wiede, 214 S.W.3d at 25.

Appellant was stopped for a traffic violation by Deputy Javier Leyva. As he 

approached Appellant’s vehicle, Deputy Leyva observed Appellant attempting to 

tuck something under either his seat or his leg. Deputy Leyva testified that this 

conduct was consistent with an attempt to conceal something. When Appellant 

stepped out of the vehicle, Deputy Leyva and his partner observed Appellant holding 

something in his hand. Deputy Leyva stated that it was “a clear plastic bag 
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containing a white powder substance” that the officers believed to be a controlled 

substance. Deputy Leyva then “went around to the driver’s side and conducted a 

search and then located some more clear plastic bags with a white powder 

substance.” The deputy’s observation of Appellant’s attempt to conceal something

inside his vehicle as the officers approached it, coupled with Appellant’s possession 

of what appeared to be a controlled substance in his hand, provided the officers with 

probable cause to search Appellant’s vehicle under the automobile exception. Thus, 

the trial court would not have abused its discretion in overruling a suppression 

objection to the evidence seized from Appellant’s vehicle. We overrule Appellant’s 

third issue. 

In his fourth issue, Appellant challenges the officers’ basis for initiating the 

stop of his vehicle for a traffic violation. Appellant preserved this issue by objecting 

on this basis to Deputy Leyva’s testimony about the traffic stop. Deputy Leyva 

testified that he and his partner stopped Appellant for a traffic violation when 

Appellant drove past a stop sign and stopped five feet into an intersection. 

Deputy Leyva stated that there was a “white line” that was “directly parallel” with 

the stop sign and that Appellant drove past the white line before stopping. The 

Transportation Code requires a driver to stop at a clearly marked stop line. TEX.

TRANSP. CODE ANN. § 544.010(c) (West 2011). An officer may lawfully stop and 

reasonably detain a person for a traffic violation. Garcia v. State, 827 S.W.2d 937, 

944 (Tex. Crim. App. 1992); see also Walter v. State, 28 S.W.3d 538, 542 (Tex.

Crim. App. 2000) (In general, the decision to stop an automobile is reasonable when 

an officer has probable cause to believe that a traffic violation has occurred.). Here, 

officers observed Appellant commit a traffic violation when he crossed the white 

line that was parallel with the stop sign. Accordingly, the trial court did not abuse 

its discretion when it overruled Appellant’s objection based on the legality of the 

traffic stop. We overrule Appellant’s fourth issue.
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This Court’s Ruling

We affirm the judgment of the trial court. 

JOHN M. BAILEY 

JUSTICE

July 16, 2015

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.