Opinion issued May 14, 2026
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00750-CR ——————————— DON MICHAEL SNIDER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from Criminal District Court No. 4 Tarrant1 County, Texas Trial Court Case No. 1788689
1 The Texas Supreme Court transferred this appeal from the Court of Appeals for the Second District of Texas. See TEX. GOV’T CODE ANN. § 73.001 (authorizing transfer of cases between courts of appeals). Under the Texas Rules of Appellate Procedure, “the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court’s decision otherwise would have been inconsistent with the precedent of the transferor court.” TEX. R. APP. P. 41.3. The parties have not cited, nor has our research revealed, any conflict between the precedent of the Second Court of Appeals and that of this court on any relevant issue. MEMORANDUM OPINION
A jury convicted appellant, Don Michael Snider, of one count of aggravated
sexual assault and one count of prohibited sexual conduct. Having found the
habitual offender notice “true,” the jury assessed appellant’s punishment at eighty-
seven years’ confinement on each count. In two issues, appellant contends that (1)
the State violated its obligations under Brady v. Maryland2 and Article 39.14 of the
Texas Code of Criminal Procedure by failing to disclose an immunity agreement to
the defense, and (2) his right to a speedy trial was violated. We affirm.
Background
The complainant, M.S, lived at the Morado Senior Living Center (“senior
center”), in Pantego, Texas. M.S., who was eighty-seven years old, suffered from
dementia and needed assistance with bathing, changing her diaper, taking her
medications, and eating. Charles, M.S.’s older son, hired Anna Tham (“Tham”), a
certified nursing aide, and Maxine Hickman (“Hickman”), a caregiver, to care for
M.S.
After suffering a fall in October 2021, M.S.’s health began deteriorating
quickly. Tham testified that M.S. was skinny, weak, and frail, was unable to care
for herself, and seemed close to passing away.
2 407 S.W.3d 514 (1972). 2 In the early morning hours of October 23, 2021, a front desk employee of the
senior center called Hickman to report a man in M.S.’s room. Hickman called Tham,
who was at the facility and getting ready to go home after working overnight with
another patient. Tham went to M.S.’s room at around 6:00 a.m. to check on M.S.
Tham testified that when she opened the door, she saw appellant, M.S.’s younger
son, lying naked next to his mother in her bed, with his genitals close to her. Tham
testified that M.S.’s clothing had been pulled up and her diaper had been pulled
away, exposing her genitals.
Tham, in shock, screamed at appellant, “Did you sleep with your mom?”
Tham testified that appellant responded, “I just want to get closer to her.” Tham
began taking photos of the scene with her cell phone. The photos were admitted into
evidence at trial. Tham testified that she took the photos so that there would be
evidence of what appellant had done and he could not deny it. Tham testified that
appellant appeared unphased and continued to lie in bed with M.S.
Tham called Hickman. When Hickman arrived, she shouted at appellant to
get out of M.S.’s bed. Appellant then left the facility. Tham called Charles and sent
him the photos she had taken. Tham took a vaginal and a buccal swab from M.S.
Afterwards, Tham and Hickman cleaned M.S. up, changed her clothing, and put her
into bed. Tham testified that M.S. was still alive at that time.
3 Tham testified that M.S. had made prior allegations of being sexually
assaulted, but no one at the facility believed her. According to Tham, Charles also
knew of M.S.’s prior sexual assault allegations but had attributed them to her
dementia.
Hickman testified that in the early morning hours of October 23, 2021, she
received a call from the senior center notifying her that M.S.’s son was at the facility.
Hickman called Tham and asked her to check on M.S. while Hickman remained on
the phone so she could hear what was said. Hickman testified that she heard Tham
scream. When Hickman asked what was wrong, Tham stated, “I think he fucked his
mom.” Hickman testified that Tham was “freaking out.” Hickman told Tham to try
and calm down and to step out of the room. When Hickman asked what M.S’s son
was doing, Tham told her that he was sleeping in the bed with M.S. Hickman told
Tham to stay quiet and take pictures so there would be proof.
When Hickman arrived at the facility, Tham opened the back door to let her
in and together they went to M.S’s room. Hickman testified that she saw M.S. on
the bed. When appellant came out of the room, he was dressed only in white boxer
shorts. Hickman testified that he was very aggressive toward her and asked, “Who
the fuck are you?” Hickman responded, “Who the fuck are you, because I’m here –
I’m the one here taking care of your mom.” Appellant replied, “I’m her fucking
son.” Hickman told appellant, “Well, I’ve never seen you, and this is not acceptable.
4 Put your fucking clothes on.” Appellant then left the facility. Hickman testified that
M.S., who was unable to communicate, began to cry.
Arlington Emergency Medical Services (“EMS”) Paramedic Jacob Menjarez
was dispatched to the senior center to respond to a call that an elderly, non-verbal
woman had possibly been sexually assaulted. Menjarez testified that the initial plan
was to transport M.S. to a hospital for a sexual assault examination. However,
during his assessment, Menjarez discovered that M.S. was not breathing. After
determining that resuscitation efforts would be futile, M.S. was declared dead.
Dr. Stacy Murthy with the Tarrant County Medical Examiner’s Office
performed an autopsy on M.S. Dr. Murthy determined that M.S. died from
hypertensive atherosclerotic cardiovascular disease and classified her death as
natural. During the autopsy, Dr. Murthy collected vaginal, oral, and anal swabs from
M.S.’s body as part of a sexual assault examination.
Forensic DNA Analyst Farah Plopper testified that she obtained a Y-STL
profile from the vaginal swab taken from M.S. by Tham and compared it to the
known Y-STL profile developed from the buccal swab taken from appellant.
Plopper testified that appellant (or any patrilineal relative) could not be excluded as
a contributor. She testified that the probability that another Caucasian individual
would have the same DNA was estimated to be at 1 in 2,834. (R.R. VI:31, 33).
Plopper also obtained a partial Y-STR profile from the vaginal swab obtained during
5 the autopsy and compared it to the profile from appellant’s buccal swab. She
testified that appellant (or any patrilineal relative) could not be excluded as a
contributor, and that the probability that another Caucasian individual would have
the same DNA was 1 in 501.
The jury found appellant guilty of one count of aggravated sexual assault3 and
one count of prohibited sexual contact. It found the habitual offender notice “true”
and assessed appellant’s punishment at eighty-seven years’ confinement on each
count. The trial court signed judgments of conviction on September 14, 2023. That
same day, the trial court appointed Monroe Solomon III (“Solomon”), one of
appellant’s trial attorneys, to represent appellant on appeal.
On October 9, 2023, appellant filed a motion for new trial arguing that the
verdict was contrary to the law and the evidence.
On May 8, 2024, Solomon moved to withdraw from the appeal on the grounds
that he had discovered potential discovery violations that had occurred during his
representation of appellant at trial that rendered him a potential fact witness at an
evidentiary hearing. Solomon requested that this Court abate his appeal and
3 In the amended indictment, appellant was charged with two counts of aggravated sexual assault. Count One alleged that appellant “intentionally or knowingly cause[d] the mouth of [appellant] to contact the female sexual organ of M.S.” Count Two alleged that appellant “intentionally or knowingly cause[d] the penis of [appellant] to contact [] the female sexual organ of M.S.” The jury found appellant “not guilty” of Count One, and it found him “guilty” of Count Two. 6 authorize an out-of-time motion for new trial. This Court ordered the trial court to
consider counsel’s request to withdraw and appoint new appellate counsel, if
necessary, and abated the appeal.
In accordance with this Court’s order, the trial court held a hearing on
Solomon’s motion to withdraw. Solomon testified that he learned of an immunity
agreement between the State and Tham. The agreement, which was admitted into
evidence at the hearing, was filed with the Tarrant County District Clerk’s Office on
September 12, 2023. Solomon testified that the State never disclosed the immunity
agreement to defense counsel, and that the first time he saw the agreement was on
May 7, 2024, while he was reviewing the clerk’s record for the appeal.
Harmony Schuerman (“Schuerman”), appellant’s lead trial counsel, testified
that she did not learn of the immunity agreement until Solomon sent it to her in May
2024. She testified that she filed a generic motion for new trial after the trial
concluded, as is the practice in Tarrant County, and that she did not look at the
clerk’s record before she filed the new trial motion. She testified that the immunity
agreement was in the district clerk’s file when she filed the motion for new trial.
Following the hearing, the trial court granted Solomon’s motion to withdraw
as appellate counsel and appointed new counsel for appellant. This Court lifted the
abatement and reinstated the appeal.
Brady and Article 39.14 Violations
7 In his first issue, appellant contends that the State violated the requirement of
Brady v. Maryland when it failed to disclose the immunity agreement with Tham to
the defense. Alternatively, he asserts that the State violated its obligations under
Article 39.14 of the Texas Code of Criminal Procedure by failing to disclose the
immunity agreement. The State responds that appellant did not preserve his claim
for appellate review. It further asserts that appellant failed to establish by a
preponderance of the evidence that the State failed to disclose favorable, material
evidence.
A. Applicable Law
Brady requires the prosecution to disclose evidence that is favorable to the
accused when that evidence is material to guilt or punishment. Brady v. Maryland,
373 U.S. 83, 87 (1963); Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011)
(“Brady held that the State has a constitutional duty to disclose to a defendant
material, exculpatory evidence.”). To establish a Brady violation, an appellant must
demonstrate that (1) the State failed to disclose evidence, regardless of the
prosecution’s good or bad faith; (2) the withheld evidence is favorable to him; and
(3) the evidence is material, that is, there is a reasonable probability that, had the
evidence been disclosed, the outcome of the trial would have been different. Ex
parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012).
8 Article 39.14(h) of the Texas Code of Criminal Procedure provides that
“[n]otwithstanding any other provision of this article, the state shall disclose to the
defendant any exculpatory, impeachment, or mitigating document, item, or
information in the possession, custody, or control of the state that tends to negate the
guilt of the defendant or would tend to reduce the punishment for the offense
charged.” TEX. CODE CRIM. PROC. ANN. art. 39.14(h).
B. Analysis
Appellant contends that he has established all three prongs of his Brady
violation claim. First, he asserts that the State failed to disclose the immunity
agreement between the State and Tham. According to appellant, a copy of the
agreement was not delivered to defense counsel and no testimony was elicited to
show that the immunity agreement had been delivered to appellant. Instead, the
testimony of appellant’s trial counsel demonstrates that the agreement was never
delivered to the defense. Second, the withheld evidence was favorable to him
because the immunity agreement related to the only purported eyewitness at trial
and, had the agreement been disclosed, defense counsel could have impeached
Tham. Third, the withheld evidence was material. According to appellant, the State
used its direct examination of Tham to portray her as an assistant to law enforcement
as well as a hero in its arguments to the jury. Additionally, Tham provided a link
between appellant’s alleged conduct and the scientific evidence that was presented
9 at trial. Appellant asserts that, alternatively, the failure to disclose this evidence
violated Article 39.14 of the Texas Code of Criminal Procedure and affected his
substantial rights.
Assuming, without deciding, that the State failed to disclose the immunity
agreement, appellant has not preserved this claim for our review.
To preserve a complaint for appellate review, a defendant must show that he
first presented to the trial court a timely request, objection, or motion stating the
specific grounds for his desired ruling. TEX. R. APP. P. 33.1(a)(1)(A). The record
also must show that the trial court either “ruled on the request, objection, or motion,
either expressly or implicitly” or “refused to rule on the request, objection, or
motion, and the complaining party objected to the refusal.” TEX. R. APP. P.
33.1(a)(2)(A), (B). This preservation requirement applies to prosecutorial
misconduct. See Hajjar v. State, 176 S.W.3d 554, 566 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref’d); see also Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App.
1999) (noting Brady claim, like most errors, must be preserved at trial to be raised
on appeal); Keeter v. State, 175 S.W.3d 756, 759–60 (Tex. Crim. App. 2005)
(holding defendant did not preserve Brady claim for review because he failed to raise
it in motion for new trial or at hearing).
Here, appellant filed a motion for new trial on October 9, 2023, alleging that
the verdict was contrary to the law and evidence. His motion did not raise a Brady
10 or Article 39.14 claim regarding Tham’s immunity agreement, despite the fact that
the agreement was filed on September 12, 2023, and was part of the trial court’s file.
Appellant’s attempt to address his Brady and Article 39.14 claims at the
hearing on Solomon’s motion to withdraw does not alter our analysis. This Court
granted an abatement so that the trial court could consider Solomon’s request to
withdraw as appellate counsel and to appoint new counsel, if necessary. This Court
did not authorize the trial court to conduct an out-of-time motion for new trial on
appellant’s Brady and Article 39.14 claims, nor do the appellate rules authorize it.
See Fakeye v. State, 227 S.W.3d 714, 717–18 (Tex. Crim. App. 2007) (concluding
trial court’s error in failing to admonish defendant as to deportation consequences
of his plea was not remediable error under Texas Rule of Appellate Procedure 44.4
because it did not prevent proper presentation of case to appellate court); see also
Haynes v. State, No. 02-14-00396-CR, No. 02-14-000397-CR, 2015 WL 4043258,
at *1–2 (Tex. App.—Fort Worth July 2, 2015, no pet.) (mem. op., not designated for
publication) (declining to grant abatement to allow defendant to file out-of-time new
trial motion to develop record so that post-conviction habeas proceeding could be
avoided); Porter v. State, No. 01-17-00534-CR, 2018 WL 4169482, at *9 (Tex.
App.—Houston [1st Dist.] Aug. 30, 2018, pet. ref’d) (mem. op., not designated for
11 publication) (holding issues defendant sought to develop for motion for new trial
“can be properly raised in a post-conviction writ of habeas corpus”).4
We further note that the trial court granted Solomon’s motion to withdraw as
appellate counsel and appointed new counsel for appellant without ruling on or
otherwise addressing appellant’s Brady and Article 39.14 claims. See TEX. R. APP.
P. 33.1(a)(1) (stating to preserve complaint for appellate review, party must make
timely request, objection or motion stating specific grounds for desired ruling and
obtain ruling from trial court); Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim.
App. 2012). Because appellant did not preserve his Brady or Article 39.14 claims
for our review, we overrule his first issue.
Speedy Trial Challenge
In his second issue, appellant asserts that his right to a speedy trial was
violated. The State responds that appellant did not preserve this issue for review. It
further asserts that he did not establish a speedy trial violation.
4 Appellant may properly raise his claim regarding Tham’s immunity agreement in a post-conviction habeas corpus proceeding. See, e.g., Rodriguez v. State, No. 01-22- 00295-CR, 2023 WL 8262839, at *20 (Tex. App.—Houston [1st Dist.] Nov. 30, 2023, no pet.) (mem. op., not designated for publication) (noting claims not abated for an out-of-time motion for new trial may be raised in post-conviction hearing).
12 A. Preservation of Error
Preservation requirements apply to speedy trial claims. Henson v. State, 407
S.W.3d 764, 768 (Tex. Crim. App. 2013). The requirement of preservation allows
for development of a record in the trial court sufficient for a speedy trial analysis
under the balancing test set forth in Barker v. Wingo.5 Id. An accused waives a
speedy trial issue by not (1) raising the claim before trial begins, (2) presenting
evidence of the claim to the trial court, or (3) obtaining a ruling after presentation of
evidence of the claim. See Grimaldo v. State, 130 S.W.3d 450, 454 (Tex. App.—
Corpus Christi–Edinburg 2004, no pet.).
Here, appellant filed a pro se speedy trial motion on June 17, 2022, and his
trial counsel filed a second speedy trial motion on May 17, 2023. The record does
not show that appellant presented either motion to the trial court, that the court held
a hearing on them, or that the court ruled on them. See TEX. R. APP. P. 33.1(a).
Consequently, the trial court had no opportunity to develop the evidence pertinent
to an analysis under Barker. Filing a speedy trial motion alone, without taking the
additional steps of presenting evidence of the claim to the trial court and obtaining
an adverse ruling from the trial court, is insufficient to preserve an alleged speedy
trial violation for appellate review. See Grimaldo, 130 S.W.3d at 454 (holding
speedy trial complaint not preserved when appellant fails to raise it before trial
5 407 U.S. 514 (1972). 13 begins, present evidence of claim to trial court, or obtain ruling); see also Quigley v.
State, No. 02-15-00441-CR, 2017 WL 930066, at *12 (Tex. App.—Fort Worth
March 9, 2017, no pet.) (mem. op., not designated for publication) (concluding
defendant failed to preserve speedy trial claim for review where he filed speedy trial
motion but record did not show that he presented motion to trial court, trial court
held hearing on it, or trial court ruled on it).
However, even if appellant had preserved this issue, he still would not prevail.
B. Applicable Law
The United States Constitution and Texas Constitution both guarantee an
accused the right to a speedy trial. U.S. CONST. amend. VI; TEX. CONST. art. 1,
§ 10; see also State v. Lopez, 631 S.W.3d 107, 113 (Tex. Crim. App. 2021)
(describing Texas Constitution as containing “the same guarantee” as United States
Constitution). We evaluate a speedy trial claim under the four-factor test set out in
Barker v. Wingo, which considers the length of the delay, the reasons for the delay,
the extent to which the accused asserted the right to a speedy trial, and any prejudice
suffered by the accused due to the delay. See Wingo, 407 U.S. at 530; Lopez, 631
S.W.3d at 113. The first of these four factors—the length of the delay—functions
as a threshold mechanism: courts will not entertain a speedy trial motion unless the
length of delay is sufficiently unreasonable. State v. Beck, 695 S.W.3d 729, 738
(Tex. App.—Houston [1st Dist.] 2024, no pet.); see also Gonzales v. State, 435
14 S.W.3d 801, 808 (Tex. Crim. App. 2014) (explaining that court does not examine
other factors unless accused first makes threshold showing that length of delay is
unreasonable enough to warrant further inquiry). The conduct of the State and the
defendant are weighed under each factor, though no single factor alone is necessary
or sufficient to establish a speedy-trial violation. Barker, 407 U.S. at 533.
We apply a bifurcated standard of review: an abuse of discretion standard for
the factual components and a de novo standard for the legal components. See Lopez,
631 S.W.3d at 113–14. While an evaluation of these factors includes fact
determinations and legal conclusions, “the balancing test as a whole is a purely legal
question that we review de novo.” Balderas v. State, 517 S.W.3d 756, 768 (Tex.
Crim. App. 2016) (citation omitted).
C. Barker Factors
1. Length of Delay
We assess the length of delay in two ways: first, we consider whether the delay
is sufficiently lengthy to trigger consideration of the other Barker factors, and second
we analyze the extent to which the delay weighs in favor of a speedy trial violation
finding. See Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim. App. 2017). The
15 length of delay is measured from the time an accused is arrested or indicted until he
demands a speedy trial or is tried. Zamorano v. State, 84 S.W.3d 643, 649 (Tex.
Crim. App. 2002). But a given delay must be evaluated on its own facts, taking into
account circumstances like the seriousness of the crime, complexity of the case, and
whether the accused can make bail or will remain confined in jail while awaiting
trial. Beck, 695 S.W.3d at 738. A defendant carries the burden to show that the
delay is presumptively prejudicial. Gonzales, 435 S.W.3d at 808.
Appellant argues that the delay in this case was presumptively prejudicial.
Appellant was arrested on October 25, 2021. He was indicted on April 27, 2022 and
reindicted on July 21, 2023. His trial began on September 11, 2023, twenty-three
months after his arrest. Because appellant was arrested, his right to a speedy trial
began running from that date, as opposed to April 27, 2022, the date on which the
formal charge was filed. See United States v. Marion, 404 U.S. 307, 321 (1971)
(“Invocation of the speedy trial provision . . . need not await indictment, information,
or other formal charge.”); see also State v. Page, No. 05-18-01391-CR, 2020 WL
1899453, at *4 (Tex. App.—Dallas Apr. 17, 2020, no pet.) (mem. op., not designated
for publication) (noting that defendant’s right to speedy trial began to run from date
of arrest rather than date on which information was formally filed).
“Generally, a delay of eight months to a year, or longer, is presumptively
prejudicial and triggers a speedy trial analysis.” Lopez, 631 S.W.3d at 114. In felony
16 sexual assault cases, the Court of Criminal Appeals has held that a four-month delay
is not sufficient, see Pete v. State, 501 S.W.2d 683, 687 (Tex. Crim. App. 1973),
while a seventeen-month delay is, see Phillips v. State, 650 S.W.2d 396, 399 (Tex.
Crim. App. [Panel Op.] 1983). On appeal, the State concedes that the delay in this
case is sufficiently long to trigger a full Barker analysis.
Once the Barker analysis is triggered, we then analyze the second part of the
inquiry—“to what extent [the delay] stretches beyond this triggering length.”
Hopper, 520 S.W.3d at 924. We consider the complexity of the case in determining
the weight given to this factor. See Deeb v. State, 815 S.W.2d 692, 705 (Tex. Crim.
App. 1991). A delay that is constitutionally intolerable as to mundane lesser
offenses, like ordinary street crimes, may be constitutionally tolerable for more
serious or complex crimes that require greater preparation to present to a jury. See
Beck, 695 S.W.3d at 742 (citation omitted). Appellant was indicted with two counts
of aggravated sexual assault and one count of prohibited sexual conduct. This was
a first-degree felony trial with DNA evidence. See Deeb, 815 S.W.2d at 705
(considering complex nature of “conspiracy to commit capital murder” case against
appellant in determining that fifteen-month delay was not intolerable); see also
Colbert v. State, No. 06-24-00055-CR, 2025 WL 794845, at *2 (Tex. App.—
Texarkana Mar. 13, 2025, no pet.) (mem. op., not designated for publication)
(considering complexity of case in which defendant was charged with one count of
17 aggravated sexual assault of child under fourteen years old and one count of
indecency with child by sexual contact, first-degree felony trial was conducted, and
DNA evidence was presented in evaluating length-of-delay factor). However, we
also consider that appellant spent twenty-three months in jail awaiting trial.6 While
the complexity of the case and seriousness of the offense weigh in favor of the State,
the length of time appellant spent in jail awaiting trial favors appellant. We
conclude, however, that the twenty-three months stretches beyond the minimum
needed to trigger the inquiry. See Zamorano, 84 S.W.3d at 656 (noting “eight
months to a year has generally been considered the minimum to trigger a speedy trial
analysis”). Under these circumstances, we conclude that the length of the delay
weighs in favor of finding a speedy trial violation.
2. Reasons for Delay
With respect to the second factor, the State bears the burden of justifying the
delay. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). The weight
courts assign to delay differs depending on its cause. Hopper, 520 S.W.3d at 924.
Deliberate delay by the State to hamper the defense weighs heavily against the
government. Id. More neutral reasons, like negligence or overcrowded dockets, still
weigh against the government but less heavily so. Id. Justifiable delay does not
6 The judgments of conviction assessed a credit of 692 days toward appellant’s sentences.
18 count against the government. See Gonzales, 435 S.W.3d at 810 (observing that
delay counts toward length of delay requiring explanation only when delay is
unjustifiable in nature while delay is discounted when it is justifiable). Delay
attributable to the defense weighs against finding a speedy trial violation. See
Hopper, 520 S.W.3d at 924; see also Balderas, 517 S.W.3d at 768 (stating that delay
caused by defendant or defense counsel weighs against finding of speedy-trial
violation). In the absence of a reason given for the delay, a court may presume
neither that the delay is justified nor unjustified. Balderas, 517 S.W.3d at 768.
The record does not show that the State filed any trial continuances or
otherwise acted to deliberately delay the trial.7 In his speedy trial motion filed by
counsel, appellant asserted that neither he nor defense counsel had committed any
act or omission contributing to the delay, and that he had announced ready at each
of the five court settings. However, the record also shows that appellant was
originally appointed a different defense attorney on October 26, 2021, and that he
filed a declaration of conflict between attorney and client and motion for substitution
of appointed counsel on July 12, 2022. Ms. Schuerman was not appointed to
represent him until August 5, 2022. Thus, more than nine months of the twenty-
three month delay, or approximately forty percent, is attributable to appellant’s
7 The only continuance occurred when the trial court granted the parties’ joint motion for a continuance of the pretrial hearing on appellant’s application for writ of habeas corpus and motion and reset the hearing for two weeks later. 19 conflict with his original counsel and request for substitute counsel. See Porter v.
State, 540 S.W.3d 178, 182 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d)
(concluding that delay was caused by, among other things, defendant’s conflicts with
his trial counsel, which resulted in three different appointments of counsel); see also
White v. State, 03-22-00771-CR, 2024 WL 4520692, at *4 (Tex. App.—Austin Oct.
18, 2024, pet. ref’d) (mem. op., not designated for publication) (noting delay was
partially caused by defendant’s conflicts with her trial counsel, appointment of
substitute counsel, and by new counsel needing to prepare for trial, which weighed
against finding speedy trial violation).
Assuming that the remaining delay was attributable to overcrowded dockets,
this reason weighs against the State but less heavily than deliberate delay. See
Hopper, 520 S.W.3d at 924 (noting that neutral reasons for delay, like crowded
dockets, weigh against State but do so less heavily than deliberate delay by State).
Because the delay in this case is attributable to both parties, this factor weighs neither
for nor against finding a speedy trial violation.
3. Assertion of the Right
Appellant bore the burden to timely “assert his right to a speedy trial.” Cantu,
253 S.W.3d at 280 (citing Barker, 407 U.S. at 531). “A defendant’s ‘assertion of his
speedy trial right is entitled to strong evidentiary weight in determining whether the
defendant is being deprived of the right.’” Lopez, 631 S.W.3d at 116 (quoting
20 Zamorano, 84 S.W.3d at 651). A speedy trial demand should be unambiguous.
Henson v. State, 407 S.W.3d 764, 769 (Tex. Crim. App. 2013); Ussery v. State, 596
S.W.3d 277, 286 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d).
Appellant filed his pro se motion for speedy trial on June 17, 2022. While
appellant’s motion constituted some effort to invoke his right to a speedy trial, the
invocation was not unambiguous because the record does not show that it was
presented to the trial court or that the trial court was even aware of its existence. See
Ussery, 596 S.W.3d at 288. Schuerman filed a second speedy trial motion on May
17, 2023. Similarly, the record does not show that the second motion was presented
to the trial court or that the trial court was aware of it. See id. And, it was filed nine-
and-a-half months after Schuerman’s appointment and less than four months before
trial. Given the delay, coupled with the fact that trial occurred less than four months
after assertion of the right, this factor does not weigh in favor of finding a speedy
trial violation. See Kelly v. State, 163 S.W.3d 722, 729 (Tex. Crim. App. 2005)
(finding delay of more than one year in asserting right to speedy trial, and fact that
trial occurred only two months later, weighed against defendant); see also Wickware
v. State, No. 12-22-00180-CR, 2023 WL 5666218, at *6 (Tex. App.—Tyler Aug.
31, 2023, no pet.) (mem. op., not designated for publication) (concluding that
defendant’s delay in asserting right to speedy trial, and fact that trial occurred
21 slightly less than four months following assertion of right, weighed against
defendant).
4. Prejudice
“Because ‘pretrial delay is often both inevitable and wholly justifiable,’ the
fourth Barker factor examines whether and to what extent the delay has prejudiced
the defendant.” Cantu, 253 S.W.3d at 285 (quoting Barker, 407 U.S. at 532). We
analyze this factor “in light of the defendant’s interests that the speedy-trial right
was designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to
minimize the accused’s anxiety and concern, and (3) to limit the possibility that the
accused’s defense will be impaired.” Id. The last form of prejudice “is the most
serious ‘because the inability of a defendant adequately to prepare his case skews
the fairness of the entire system.’” Id. The defendant has the burden of showing
prejudice but need not show actual prejudice. Balderas, 517 S.W.3d at 772.
Conclusory assertions are not sufficient to carry a defendant’s burden to show that
he was prejudiced by delay. State v. Moreno, 651 S.W.3d 399, 415 (Tex. App.—
Houston [1st Dist.] 2022, no pet.).
We note that the trial court did not hold an evidentiary hearing on appellant’s
speedy trial motions. This fact is especially significant with respect to the issue of
prejudice because prejudice is a fact-intensive inquiry. See Henson, 407 S.W.3d at
22 769 (characterizing prejudice as fact intensive and stating it may not be readily
apparent without factual development in trial court).
In his pro se motion, appellant asserted that he was prejudiced by the delay
because “defense witnesses are becoming unavailable” and the remaining witnesses
“will have forgotten facts that would be beneficial” to him. His motion did not
identify the witnesses who had become unavailable or specify which facts the
remaining witnesses would have forgotten. See Beck, 695 S.W.3d at 748 (noting
conclusory assertions do not demonstrate prejudice). In his second speedy trial
motion, appellant asserted that he had suffered oppressive pre-trial incarceration as
well as anxiety and concern regarding the outcome of the trial; however, he did not
provide any underlying factual details about the effect his incarceration had on him
or about his anxiety or concern. See id. Moreover, a defendant’s anxiety must be
greater anxiety or concern than the level normally associated with a criminal charge
or investigation to be sufficient proof of prejudice. See Cantu, 253 S.W.3d at 286
(requiring evidence of “greater anxiety or concern beyond the level normally
associated with a criminal charge or investigation” to suffice as proof of prejudice
factor under Barker). We conclude that appellant’s conclusory assertions are
insufficient to show that he was prejudiced by the delay. This factor weighs against
finding a speedy trial violation.
5. Balancing of Barker Factors
23 “[C]ourts 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.” Id. at
281. Although the twenty-three month delay weighs in appellant’s favor, the second
factor is neutral and the third and fourth factors weigh against finding a violation of
appellant’s speedy trial right. We conclude that the weight of the factors, when
balanced together, weighs against appellant and his right to a speedy trial was not
violated. We overrule appellant’s second issue.
Conclusion
We affirm the trial court’s judgment.
Kristin M. Guiney Justice
Panel consists of Chief Justice Adams and Justices Guerra and Guiney.
Do not publish. TEX. R. APP. P. 47.2(b).