AFFIRMED and Opinion Filed June 27, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01045-CR
DERRICK WALTON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F17-41375
MEMORANDUM OPINION Before Justices Nowell, Goldstein, and Breedlove Opinion by Justice Goldstein Derrick Walton appeals his aggravated assault with a deadly weapon against
a family member conviction. Pursuant to a plea bargain agreement, appellant
entered a guilty plea, and the trial court found him guilty and sentenced him to fifteen
years’ confinement. In a single issue, appellant complains that the trial court erred
in denying his motion to dismiss the indictment for violation of his right to a speedy
trial. We affirm the trial court’s judgment. BACKGROUND
On October 10, 2017, appellant was charged by indictment in Dallas County
on a charge of aggravated assault with a deadly weapon against a family member.
The probable cause affidavit stated that, on August 1, 2017, appellant “drop kicked”
his uncle, Amos Walton, in the head and then “fled the scene in a Penske truck.”
Amos spent two days in the hospital to recover from his injuries, and police
interviewed Amos on August 4, 2017. Amos stated he had a broken jaw requiring
surgery, a broken nose, and a broken arm resulting from appellant drop kicking
Amos to the ground and kicking, stomping, and punching Amos.
Also on August 4, 2017, appellant struck another vehicle in Collin County.
The record contains a Collin County probable cause affidavit stating that appellant
was driving the Penske rental truck at the time of the accident, and he left the scene
after the accident. Police interviewed Belinda Wright, appellant’s passenger at the
time of the accident, and she stated her relationship with appellant had recently
ended, but she got in the truck with appellant so they could talk. Appellant drove
off at a high rate of speed and refused to stop and let Wright out of the truck. After
the accident, appellant drove away from the scene and eventually lost control of the
truck, striking a tree in a parking lot where Wright was able to exit the truck and run
away. Appellant yelled at Wright to get back in the truck and drove toward her as if
he was going to run her over, but Wright escaped. Appellant was arrested in Collin
–2– County for driving while intoxicated, unlawful restraint, aggravated assault with a
deadly weapon, and accident involving damage to vehicle.
On August 9, 2017, an at-large warrant for appellant’s arrest on a charge of
aggravated assault was issued in Dallas County. On October 3, 2017, appellant
posted a $15,000 bond in Dallas County. When appellant failed to appear at a trial
setting on January 25, 2018, his bond was forfeited and a warrant for his arrest was
issued. On June 22, 2018, Amos died while appellant remained at large with an
active warrant. The warrant was executed on November 29, 2018. On December
13, 2018, the trial court in Dallas County appointed an attorney to represent
appellant. On September 26, 2019, appellant’s bond in Dallas County was
discharged because appellant was incarcerated in the Denton County jail. On
February 7, 2020, a Denton County jury convicted appellant and sentenced him to
ten years’ confinement. Appellant was sent to the Institutional Division of the Texas
Department of Criminal Justice on March 12, 2020.
On January 31, 2022, at the State’s request, a bench warrant was issued, and
appellant was booked into Dallas County jail on February 11, 2022. On June 22,
2022, appellant rejected the State’s plea bargain offer, and appellant orally asserted
the clear invocation of the right to a speedy trial.1 On July 21, 2022, appellant filed
a motion to dismiss for violation of his right to a speedy trial. The next day, the trial
1 In asserting the right, counsel remarked that appellant “may have asserted it before,” but the record is devoid of any prior assertion. –3– court denied appellant’s motion to dismiss. On August 29, 2022, appellant and the
State reached a plea bargain agreement in which appellant pled guilty and agreed to
a sentence of fifteen years’ confinement. At a hearing that same day, the trial court
agreed appellant preserved the right to appeal his speedy trial motion. The trial
court’s certification of appellant’s right of appeal provided that this case is a plea-
bargain case, but matters were raised by written motion filed and ruled on before
trial and not withdrawn or waived, and appellant had the right of appeal. This appeal
followed.
DISCUSSION
In a single issue, appellant complains that the trial court erred in denying his
motion to dismiss the indictment for violation of his right to a speedy trial.
The Sixth Amendment to the U.S. Constitution guarantees the accused in a
criminal prosecution the right to a speedy trial. See U.S. CONST. amend. VI. 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). 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); Cantu, 253 S.W.3d at 280. The
State has the burden to justify the length of the delay, while the defendant has the
–4– burden to prove he asserted his right and has been prejudiced. Cantu, 253 S.W.3d
at 280.
We apply a bifurcated standard of review in a speedy trial analysis: we employ
an abuse of discretion standard for the factual components and a de novo standard
for the legal components. State v. Lopez, 631 S.W.3d 107, 113–14 (Tex. Crim. App.
2021). Thus, we give almost total deference to the trial court’s historical findings of
fact that are supported by the record. Gonzales v. State, 435 S.W.3d 801, 808 (Tex.
Crim. App. 2014). The balancing test of the Barker factors is a purely legal question
that we review de novo. Balderas v. State, 517 S.W.3d 756, 767–68 (Tex. Crim.
App. 2016).
The Length of the Delay
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)); see also Barker,
407 U.S. at 530–32 (length of delay is “triggering mechanism” for analysis of other
factors). Here, at the hearing on appellant’s motion to dismiss, the State agreed that
the delay of four years and eight months between appellant’s indictment on October
10, 2017, and his assertion of his right to a speedy trial on June 22, 2022, was
sufficient to trigger a full Barker analysis. We agree that, in this case, the length of
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AFFIRMED and Opinion Filed June 27, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01045-CR
DERRICK WALTON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. F17-41375
MEMORANDUM OPINION Before Justices Nowell, Goldstein, and Breedlove Opinion by Justice Goldstein Derrick Walton appeals his aggravated assault with a deadly weapon against
a family member conviction. Pursuant to a plea bargain agreement, appellant
entered a guilty plea, and the trial court found him guilty and sentenced him to fifteen
years’ confinement. In a single issue, appellant complains that the trial court erred
in denying his motion to dismiss the indictment for violation of his right to a speedy
trial. We affirm the trial court’s judgment. BACKGROUND
On October 10, 2017, appellant was charged by indictment in Dallas County
on a charge of aggravated assault with a deadly weapon against a family member.
The probable cause affidavit stated that, on August 1, 2017, appellant “drop kicked”
his uncle, Amos Walton, in the head and then “fled the scene in a Penske truck.”
Amos spent two days in the hospital to recover from his injuries, and police
interviewed Amos on August 4, 2017. Amos stated he had a broken jaw requiring
surgery, a broken nose, and a broken arm resulting from appellant drop kicking
Amos to the ground and kicking, stomping, and punching Amos.
Also on August 4, 2017, appellant struck another vehicle in Collin County.
The record contains a Collin County probable cause affidavit stating that appellant
was driving the Penske rental truck at the time of the accident, and he left the scene
after the accident. Police interviewed Belinda Wright, appellant’s passenger at the
time of the accident, and she stated her relationship with appellant had recently
ended, but she got in the truck with appellant so they could talk. Appellant drove
off at a high rate of speed and refused to stop and let Wright out of the truck. After
the accident, appellant drove away from the scene and eventually lost control of the
truck, striking a tree in a parking lot where Wright was able to exit the truck and run
away. Appellant yelled at Wright to get back in the truck and drove toward her as if
he was going to run her over, but Wright escaped. Appellant was arrested in Collin
–2– County for driving while intoxicated, unlawful restraint, aggravated assault with a
deadly weapon, and accident involving damage to vehicle.
On August 9, 2017, an at-large warrant for appellant’s arrest on a charge of
aggravated assault was issued in Dallas County. On October 3, 2017, appellant
posted a $15,000 bond in Dallas County. When appellant failed to appear at a trial
setting on January 25, 2018, his bond was forfeited and a warrant for his arrest was
issued. On June 22, 2018, Amos died while appellant remained at large with an
active warrant. The warrant was executed on November 29, 2018. On December
13, 2018, the trial court in Dallas County appointed an attorney to represent
appellant. On September 26, 2019, appellant’s bond in Dallas County was
discharged because appellant was incarcerated in the Denton County jail. On
February 7, 2020, a Denton County jury convicted appellant and sentenced him to
ten years’ confinement. Appellant was sent to the Institutional Division of the Texas
Department of Criminal Justice on March 12, 2020.
On January 31, 2022, at the State’s request, a bench warrant was issued, and
appellant was booked into Dallas County jail on February 11, 2022. On June 22,
2022, appellant rejected the State’s plea bargain offer, and appellant orally asserted
the clear invocation of the right to a speedy trial.1 On July 21, 2022, appellant filed
a motion to dismiss for violation of his right to a speedy trial. The next day, the trial
1 In asserting the right, counsel remarked that appellant “may have asserted it before,” but the record is devoid of any prior assertion. –3– court denied appellant’s motion to dismiss. On August 29, 2022, appellant and the
State reached a plea bargain agreement in which appellant pled guilty and agreed to
a sentence of fifteen years’ confinement. At a hearing that same day, the trial court
agreed appellant preserved the right to appeal his speedy trial motion. The trial
court’s certification of appellant’s right of appeal provided that this case is a plea-
bargain case, but matters were raised by written motion filed and ruled on before
trial and not withdrawn or waived, and appellant had the right of appeal. This appeal
followed.
DISCUSSION
In a single issue, appellant complains that the trial court erred in denying his
motion to dismiss the indictment for violation of his right to a speedy trial.
The Sixth Amendment to the U.S. Constitution guarantees the accused in a
criminal prosecution the right to a speedy trial. See U.S. CONST. amend. VI. 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). 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); Cantu, 253 S.W.3d at 280. The
State has the burden to justify the length of the delay, while the defendant has the
–4– burden to prove he asserted his right and has been prejudiced. Cantu, 253 S.W.3d
at 280.
We apply a bifurcated standard of review in a speedy trial analysis: we employ
an abuse of discretion standard for the factual components and a de novo standard
for the legal components. State v. Lopez, 631 S.W.3d 107, 113–14 (Tex. Crim. App.
2021). Thus, we give almost total deference to the trial court’s historical findings of
fact that are supported by the record. Gonzales v. State, 435 S.W.3d 801, 808 (Tex.
Crim. App. 2014). The balancing test of the Barker factors is a purely legal question
that we review de novo. Balderas v. State, 517 S.W.3d 756, 767–68 (Tex. Crim.
App. 2016).
The Length of the Delay
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)); see also Barker,
407 U.S. at 530–32 (length of delay is “triggering mechanism” for analysis of other
factors). Here, at the hearing on appellant’s motion to dismiss, the State agreed that
the delay of four years and eight months between appellant’s indictment on October
10, 2017, and his assertion of his right to a speedy trial on June 22, 2022, was
sufficient to trigger a full Barker analysis. We agree that, in this case, the length of
time without a trial setting merits our addressing the three remaining Barker factors.
–5– The Reason for the Delay
The State blamed the delay in bringing appellant to trial, in part, on restrictions
in court procedures during the Covid-19 outbreak. Specifically, the State pointed
out that, from mid-March 2020 to April 21, 2021, no jury trials occurred in Dallas
County due to the Covid-19 pandemic. The State argued further that the reason for
the delay was “primarily the defendant’s own conduct” in “failing to appear for
nearly a year with an active warrant” and “the defendant’s other criminal conduct”
and conviction in Denton County. The State conceded, however, that a delay of
thirteen months was due to State “negligence outside the period of the Covid-19
pandemic.” Yet the State argued that, during that time, appellant was “in custody
serving a TDC sentence, so he has not suffered any pretrial incarceration, essentially,
at the hands of” the State.
Delay caused by the onset of a pandemic cannot be attributed as fault to the
State. State v. Conatser, 645 S.W.3d 925, 930 (Tex. App.—Dallas 2022, no pet.).
There is no evidence that the State deliberately delayed appellant’s trial for strategic
gain. See id. Moreover, the record shows appellant failed to appear at his first trial
setting in January of 2018 while out on bond, and he remained at large with an active
warrant from August 2017 until November 2018. Appellant was appointed counsel
in December 2018.2 By September 2019, appellant was incarcerated in the Denton
2 During the hearing an exchanged occurred between appellant and the prosecutor relative to counsel signing pass slips resetting the case between January 2019 and September 2019. However, the record does
–6– County jail, and on February 7, 2020, a Denton County jury convicted appellant and
sentenced him to ten years’ confinement. Under the facts and circumstances of this
case, we conclude the second Barker factor weighs against neither the State nor
appellant.
Appellant’s Assertion of the Right
There is no evidence in the record that Appellant asserted his right to a speedy
trial prior to the oral invocation in June of 2022 after plea bargain negotiations failed.
The subsequent written motion sought only to dismiss the indictment for violation
of the right to a speedy trial. Appellant’s assertion of his right should receive “strong
evidentiary weight” in our determination of whether he has been deprived of that
right. See Balderas, 517 S.W.3d at 771. If a defendant does not timely demand a
speedy trial, we must assume that he did not really want one. Id. And the longer the
delay before trial, the more likely it would be that a defendant wanting a speedy trial
would request it. Id.
Here, the record reflects that appellant first raised the issue of a speedy trial
approximately four years and eight months after he was arrested and indicted in
Dallas County. When he finally raised the issue, defense counsel orally invoked the
right to a speedy trial at the conclusion of a June 22, 2022 hearing. However, in the
motion he filed on July 21, 2022, he solely sought dismissal of the indictment.
not contain these pass slips or an affirmative representation that the same were part of the court’s file; therefore, this seven month span is without explanation. –7– “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. We conclude appellant’s focus on the dismissal of the indictment as
opposed to a speedy trial weighs against him.
Prejudice to Appellant
The fourth and final Barker factor we consider is the prejudice caused to the
defendant as a result of the State’s delay. The defendant has the burden of showing
prejudice. Id. at 280. We assess this factor in light of the three interests the right to
a speedy trial is intended 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. Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim.
App. 2017).
Here, appellant testified that his memory was “much sharper a couple of years
ago,” and his memory had “eroded” since he had been in the Institutional Division
of the Texas Department of Corrections. In response to questioning, appellant
testified he knew Amos had passed away in 2018, and the underlying events
occurred in 2017. The prosecutor argued that anxiety and loss of memory were “the
weakest most attenuated form of prejudice.” We conclude that appellant failed to
identify any significant prejudice caused by the State’s delay in bringing him to trial.
See id. The most significant prejudice, the loss of the complainant Amos, occurred
approximately eleven months after the date an at-large warrant for appellant’s arrest
–8– on a charge of aggravated assault was issued in Dallas County and was not caused
by the State’s delay. At the time of Amos’ death appellant was not seeking a speedy
trial but instead remained at large with an active warrant. This factor weighs heavily
against him.
We agree that the delay in this case merits a full Barker analysis; however,
application of the Barker factors shows that the reason for the delay is shared by
both appellant and the state, and is of neutral consideration, while the remaining two
factors weigh to a greater or lesser degree against appellant. We conclude that the
Barker factors weigh against finding a speedy trial violation. See Barker, 407 U.S.
at 530; Cantu, 253 S.W.3d at 280. Therefore, the trial court did not err in denying
appellant’s motion to dismiss the indictment for violation of his right to a speedy
trial. We overrule appellant’s sole issue.
We affirm the trial court’s judgment.
/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 221045F.U05
–9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DERRICK WALTON, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-22-01045-CR V. Trial Court Cause No. F17-41375. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Goldstein. Justices Nowell and Breedlove participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 27, 2023
–10–