Opinion issued May 2, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00003-CR ——————————— THE STATE OF TEXAS, Appellant V. JUSTIN TYLER BECK, Appellee
On Appeal from the County Court at Law Austin County, Texas Trial Court Case No. 22CR-36804
O P I N I O N
The State charged Justin Tyler Beck with the misdemeanor offense of driving
while intoxicated. Beck successfully moved to dismiss the prosecution on the basis
that the State violated his constitutional right to a speedy trial. The State appeals.
We reverse and remand. BACKGROUND
Beck was arrested for the offense of driving while intoxicated on August 10,
2020. He bonded out of jail the next day, and he has since remained out on bond.
Almost 14 months elapsed before the State charged Beck for the offense. On
January 5, 2022, the State filed an information alleging that Beck had operated a
motor vehicle in a public place while intoxicated by alcohol, drugs, or both.
During the intervening 14 months or so, there were multiple court settings.
Beck appeared in court on November 12, 2020, May 6, 2021, July 21, 2021,
November 4, 2021, January 6, 2022, March 17, 2022, June 15, 2022, July 20, 2022,
September 15, 2022, and November 2, 2022. Each of these settings is documented
by a notice of setting. Each notice is signed by Beck or by his defense counsel.
Beck was not represented by counsel until the June 15, 2022 setting. The prior
two notices of setting, which are dated January 6 and March 17, indicate that the
case was continued so that Beck could hire a lawyer to represent him.
Beck’s counsel moved for a speedy trial on June 14, 2022. He requested that
the trial court “set this case for an immediate trial without further delay.” In the
motion, Beck asserted that due to the elapse of approximately 22 months he no
longer had “an independent memory of the facts leading up to his arrest and
prosecution” and therefore was “no longer able to effectively aid counsel in his own
defense.” He further stated that the repeated court appearances and delay in drug-
2 testing his blood sample caused him “great anxiety and concern.” The motion was
verified by Beck’s counsel, who averred that the facts were true and correct.
Beck did not set his speedy-trial motion for hearing by the trial court.
At the July 20, 2022 setting, the State announced ready for trial. Beck
announced not ready for trial because his defense counsel had a scheduling conflict,
specifically, a trial setting in a felony prosecution in another trial court.
On September 7, Beck’s counsel moved to dismiss the case on the ground that
his client’s right to a speedy trial had been violated. In the motion, Beck asserted
that no trial date was set despite his prior speedy-trial motion. He asserted the same
prejudice due to memory loss and anxiety recited in the first motion. Once again,
Beck’s counsel verified the motion, averring the facts were true and correct.
Beck did not set his motion to dismiss for hearing by the trial court.
At the September 15, 2022 setting, the State announced ready for trial. Beck
announced not ready because his defense counsel again had a scheduling conflict,
specifically, a trial setting in another felony prosecution in another trial court.
At the next setting, on November 2, 2022, the State announced ready for trial.
Beck objected to going forward without an immediate hearing on his motion to
dismiss. The trial court then immediately held a hearing on the motion.
Beck did not testify at the hearing, which was non-evidentiary in nature.
Defense counsel and the prosecutor each presented argument regarding the delay.
3 At the hearing, it was agreed that the State received a blood-alcohol analysis
from the laboratory on September 17, 2020. It showed Beck had a blood-alcohol
concentration of 0.017, which is below the 0.080 legal limit for intoxication. But the
Department of Public Safety’s laboratory had not yet analyzed his blood for drugs.
On March 24, 2022, DPS issued its drug analysis. But DPS failed to forward
its analysis to the district attorney’s office. Consequently, the prosecution did not
learn of the report until June 15, 2022, when the district attorney inquired of DPS.
The drug-test results indicated that Beck’s blood contained THC or THC
metabolites. But the record does not reflect the significance of these test results. The
district attorney attributed the delay of the test results to “a significant backlog.” The
district attorney acknowledged that trial was delayed in part due to delay in receipt
of the drug-test results but suggested that he had no way to make DPS be timelier.
At the conclusion of the hearing, the trial court indicated that it would “go
ahead and grant the motion.” By way of explanation, the trial court stated, “I know
that it’s been an ongoing struggling with the DPS to get these results here and we’ve
asked and we’ve tried to get DPS to speed things up. So, maybe the message from
this case would help speed things up.” Several days later, on November 8, 2022, the
trial court signed an order granting the motion to dismiss and dismissed the case.
Two weeks later, the State filed a motion for reconsideration. The State argued
that the trial court should not have dismissed the case for two alternative reasons.
4 First, the State argued that Beck’s speedy-trial challenge was not cognizable because
he had agreed to the delay by agreeing to reset the case at each and every setting.
Second, the State argued that even if Beck’s speedy-trial challenge was cognizable
in spite of the multiple agreed resets, the circumstances as a whole did not support a
finding that the State had infringed the constitutional guarantee of a speedy trial.
The assistant criminal district attorney who was the State’s trial counsel
submitted an affidavit in conjunction with the motion for reconsideration. In his
affidavit, he averred that the trial court reset the case seven times before Beck filed
his speedy-trial motion and that each reset was with the agreement of the parties. He
further averred that the primary causes of delay “were to await pending blood
analysis results from DPS and to give [Beck] the opportunity to hire an attorney.”
On January 2, 2023, the trial court signed findings of fact and conclusions of
law confirming its earlier order dismissing the case. The trial court concluded that:
● the delay of 22 months between Beck’s arrest and his speedy-trial motion was unreasonable and weighed against the State’s position;
● the delay was due to the lab’s failure to timely test the evidence and thus was attributable solely to the State’s negligence or misconduct;
● Beck was not required to assert his constitutional right to a speedy trial at any point prior to when he filed his motion for speedy trial; and
● the delay created a presumption of prejudice, caused Beck undue anxiety, and caused him to suffer memory loss that would damage his defense.
When the preceding factors were considered together, the trial court reasoned, they
showed a violation of the speedy-trial guarantee and supported dismissal of the case. 5 The State appeals.
DISCUSSION
Speedy-Trial Challenges
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 U.S. Constitution); Shaw
v. State, 117 S.W.3d 883, 888 (Tex. Crim. App. 2003) (indicating that courts apply
same legal standard to state and federal constitutional speedy-trial challenges).
Courts evaluate a speedy-trial claim under a four-factor test that 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.
Lopez, 631 S.W.3d at 113. The first of these four factors—the length of the delay—
also essentially functions as a threshold mechanism, in that courts will not entertain
a speedy-trial motion unless the length of delay is sufficiently unreasonable. Id.; see
also Gonzales v. State, 435 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 first step in a speedy-trial analysis, therefore, is to calculate the length of
the delay. Gonzales, 435 S.W.3d at 809. The length of delay is measured from the
6 time an accused is arrested or indicted until he demands a speedy trial or is tried.
Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). In general, a delay
of eight months to a year or more is sufficient to cross the threshold requiring a court
to conduct a complete speedy-trial analysis. Lopez, 631 S.W.3d at 114. 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. Id. The accused bears the
burden of showing that the length of delay is unreasonable enough to require a
complete speedy-trial analysis. Gonzales, 435 S.W.3d at 808.
Assuming that the length of delay is sufficiently unreasonable to require a
complete speedy-trial analysis, a court must assess the strength of each of the four
factors and balance their relative weights in light of both sides’ conduct. Cantu v.
State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008). No single factor is necessary
or sufficient on its own to support a finding that the accused’s right to a speedy trial
has been violated. Id. The four factors must be considered together. Id. In addition,
the four factors are not exclusive. Johnson v. State, 954 S.W.2d 770, 772–73 (Tex.
Crim. App. 1997). A court should likewise consider any other relevant
circumstances in conjunction with the four factors. Cantu, 253 S.W.3d at 281.
The length of delay is not just a threshold issue but also a relevant factor when
the threshold necessitating further inquiry is crossed. See Hopper v. State, 520
7 S.W.3d 915, 924 (Tex. Crim. App. 2017) (characterizing length of delay as “a double
inquiry,” with court first assessing whether delay is lengthy enough to trigger further
analysis and, if so, then assessing extent to which delay stretches beyond length
required to trigger further analysis). The longer the delay stretches beyond the
threshold triggering a complete speedy-trial analysis, the more the delay weighs in
favor of finding a speedy-trial violation. Gonzales, 435 S.W.3d at 809. For example,
the Court of Criminal Appeals has held that a delay of several years beyond the
threshold, in and of itself, weighs heavily in favor of finding a speedy-trial violation.
E.g., Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003) (holding three-
and-a-half-year delay between arrest and trial “stretched far beyond the minimum
needed to trigger” complete inquiry and thus weighed heavily in favor of finding
violation). Lengthier delay weighs in favor of finding a violation because prejudice
associated with delay usually increases over time. Zamorano, 84 S.W.3d at 649.
With respect to the second factor, reasons for the delay, the State bears the
burden of justifying the delay. Cantu, 253 S.W.3d at 280. 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 count against the
government. See Gonzales, 435 S.W.3d at 810 (observing that delay counts toward
8 length of delay requiring explanation only when delay is unjustifiable in nature while
delay is discounted when delay is justified). For example, delay due to good-faith
plea negotiations or good-faith dismissal of a criminal charge followed by filing of
a new criminal charge is justified. State v. Munoz, 991 S.W.2d 818, 824 (Tex. Crim.
App. 1999) (plea negotiations); Deeb v. State, 815 S.W.2d 692, 705 (Tex. Crim.
App. 1991) (dismissal and refiling of criminal charges). Delay attributable to the
defense weighs against finding a speedy-trial violation. Hopper, 520 S.W.3d at 924;
see also Balderas v. State, 517 S.W.3d 756, 768 (Tex. Crim. App. 2016) (stating that
delay caused by defendant or defense counsel weighs against finding of speedy-trial
violation). When the State simply fails to explain the delay, a court may presume
neither that the delay is justified nor unjustified. Balderas, 517 S.W.3d at 768.
As to the third factor, the extent to which the accused asserted the right to a
speedy trial, the accused bears the burden of proving he asserted the right. Cantu,
253 S.W.3d at 280. While the accused does not have a duty to bring himself to trial,
he does have a responsibility to assert his right to a speedy trial. Zamorano, 84
S.W.3d at 651; see also Henson v. State, 407 S.W.3d 764, 768–69 (Tex. Crim. App.
2013) (holding speedy-trial right is subject to ordinary error-preservation rules).
When the accused fails to timely assert his right to a speedy trial, his failure to do so
strongly indicates that he did not desire one. Balderas, 517 S.W.3d at 771. The
longer trial is delayed, the more likely an accused who desires a speedy trial would
9 be to assert his right to one. Id. Hence, prolonged inaction by the accused weighs
more heavily against finding that the speedy-trial guarantee has been violated. Id.
With respect to the fourth factor, prejudice, the accused generally bears the
burden to show the delay harmed him in some manner. Cantu, 253 S.W.3d at 280.
But affirmative proof of particularized prejudice is not always required. Hopper, 520
S.W.3d at 924. Excessive delay may compromise the reliability of a trial in ways the
parties cannot identify let alone prove. Id. When the delay is this excessive, the
accused is excused from the requirement to show that the delay prejudiced him.
Gonzales, 435 S.W.3d at 812. In these instances, prejudice is presumptive, and the
State must either vitiate the presumption by proving the accused acquiesced in the
delay or by persuasively rebutting the presumption of prejudice. Id. at 814–15.
Courts must evaluate prejudice in view of the interests the speedy-trial
guarantee safeguards. Hopper, 520 S.W.3d at 924. The speedy-trial guarantee is
intended to prevent oppressive pretrial incarceration, minimize the anxiety and
concern of the accused, and limit the possibility the defense will be impaired. Id.
The last of these three interests is the most important one because the truth-seeking
function of a trial is compromised when the accused is unable to adequately prepare
a defense due to delay that is beyond his control. Gonzales, 435 S.W.3d at 812.
Courts must also be mindful that the speedy-trial guarantee differs from other
constitutional rights, inasmuch as the infringement of the right can also benefit the
10 accused. Henson, 407 S.W.3d at 766. Delay can adversely impact memories of
witnesses or cause witnesses to become unavailable altogether. Id. at 766–77. But
these consequences may impact the State as well, making it more difficult for the
prosecution to carry its burden of proof at trial. Id. Thus, if the accused quietly
acquiesces in the delay, any prejudice is extenuated. Hopper, 520 S.W.3d at 929.
When, on balance, the four factors show a violation of the speedy-trial
guarantee, dismissal with prejudice is the lone remedy. Shaw, 117 S.W.3d at 888;
Dragoo, 96 S.W.3d at 313. Because dismissal of the charges is an extreme measure,
courts must apply this balancing test with common sense and sensitivity so that they
dismiss solely when the evidence shows that an accused’s actual and asserted interest
in a speedy trial has been violated. Cantu, 253 S.W.3d at 281. The constitutional
guarantee safeguards the right to a speedy trial, not dismissal of the charges. Id.
Standard of Review
A trial court’s ruling on a motion to dismiss based on the speedy-trial
guarantee is subject the same standard of review as a ruling on a motion to suppress.
Gonzales, 435 S.W.3d at 808. We defer to the trial court’s findings of fact, provided
they are supported by the record. Id.; see also State v. Munoz, 991 S.W.2d 818, 821
(Tex. Crim. App. 1999) (advising that appellate court must presume trial court
resolved disputed fact issues in favor of its findings and defer to these findings so
long as record supports them). We likewise defer to the inferences the trial court
11 draws from the facts, as long as these inferences are not conjectural or speculative.
Kelly v. State, 163 S.W.3d 722, 726–27 (Tex. Crim. App. 2005). However, whether
the length of delay is unreasonable enough to warrant a complete speedy-trial
analysis and whether on balance the four factors and any other relevant
considerations ultimately demonstrate a speedy-trial violation are questions of law,
which we review de novo. Gonzales, 435 S.W.3d at 809; see also Cantu, 253 S.W.3d
at 282 (noting that evaluation of individual factors entails factual determinations and
legal conclusions but that balancing of four factors poses purely legal question).
Finally, our review of the trial court’s ruling is confined to the evidence that was
before the trial court when it made its ruling. Gonzales, 435 S.W.3d at 809.
Analysis
I. Speedy-Trial Threshold Inquiry
The State argues that the trial court erred in conducting a complete speedy-
trial analysis because the length of delay did not cross the required threshold for
unreasonableness. The State reasons that the entire period of delay between Beck’s
arrest and his assertion of the right to a speedy trial is attributable to agreed resets
and therefore cannot be counted when calculating the applicable length of delay.
The essence of the State’s position is that the trial court was required to
discount any delay attributable in whole or in part to the accused when it calculated
whether the length of delay was sufficiently unreasonable to warrant a complete
12 speedy-trial analysis. In support of this position, the State relies in part on Porter v.
State, 540 S.W.3d 178 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
Our decision in Porter does not support the State’s position. In Porter, we
stated that delay caused by the defense weighs against an accused, and we discounted
delay that was “attributable to or agreed to by” the accused in that case. 540 S.W.3d
at 182. In particular, we discounted delay the accused caused by requesting resets
and by quarreling with his own counsel, which resulted in the appointment of three
different lawyers. Id. But we discounted this delay in our evaluation of the second
factor of the speedy-trial analysis, the reasons for delay, after already concluding the
length of delay crossed the threshold requiring a complete speedy-trial analysis. Id.
As a result, we concluded that the second factor weighed strongly against dismissal
because the delay was largely attributable to or agreed to by the accused. Id.
Our mode of analysis in Porter is consistent with the legal standard articulated
by the Court of Criminal Appeals. The Court has repeatedly stated that delay caused
by the defense weighs against finding a speedy-trial violation, but it has done so in
the context of discussing the second factor of a complete speedy-trial analysis. E.g.,
Balderas, 517 S.W.3d at 768. The State does not cite, and we have not found, a
decision from the Court in which it incorporated the reasons for delay into the
threshold calculation of the length of delay. Nor would doing so be without
consequence. The accused has the burden to show the length of delay is unreasonable
13 enough to require a complete speedy-trial analysis, while the State bears the burden
to explain the delay when a complete speedy-trial analysis is required. See Gonzales,
435 S.W.3d at 808 (stating defense must make threshold showing before court is
required to consider and weigh all factors); Cantu, 253 S.W.3d at 280 (specifying
State has burden to justify length of delay). So, if we incorporated the reasons for
delay into the threshold calculation, we would be shifting the burden to the accused
to disprove he contributed to the length of delay at the outset. Perhaps, doing so
would be reasonable. But this would not be consistent with the assignment of
burdens set forth by the Court. Notably, when the Court has considered resets in its
speedy-trial analysis, it has not done so as part of the threshold calculation of the
length of delay. See Balderas, 517 S.W.3d at 768–71 (discussing agreed and
unagreed resets in evaluation of second factor concerning reasons for delay);
Zamorano, 84 S.W.3d at 651–52 (noting lack of clarity as to whether accused had
objected to resets in evaluating third factor concerning assertion of right to speedy
trial); Emery v. State, 881 S.W.2d 702, 708–09 & n.12 (Tex. Crim. App. 1994)
(stating that some delay was attributable to resets resulting from requests for
continuance made by accused in evaluating second factor concerning reasons for
delay); Grayless v. State, 567 S.W.2d 216, 221 (Tex. Crim. App. [Panel Op.] 1978)
(considering agreed resets in evaluating third factor concerning assertion of right to
speedy trial); Black v. State, 505 S.W.2d 821, 824 (Tex. Crim. App. 1974) (factoring
14 in agreed resets in evaluation of second factor concerning reasons for delay);
McKinney v. State, 505 S.W.2d 536, 542 (Tex. Crim. App. 1974) (accounting for
resets agreed to and requested by accused in evaluating second factor concerning
reasons for delay).
Ordinarily, the Court’s evaluation of whether the length of delay is
sufficiently unreasonable to require a complete speedy-trial analysis is perfunctory,
consisting of no more than the most basic sort of calculation. E.g., Shaw, 117 S.W.3d
at 889 (calculating length of delay based on dates of indictment and trial and holding
that 38 months triggered complete speedy-trial analysis). The Court has
characterized the necessary threshold showing as a prima facie one. Id.; see also
Knox v. State, 934 S.W.2d 678, 681 (Tex. Crim. App. 1996) (assuming 10-month
delay “was, prima facie, unreasonable under the circumstances”); Harris v. State,
827 S.W.2d 949, 956 (Tex. Crim. App. 1992) (assuming 13-month delay “was,
prima facie, unreasonable under the circumstances”). This characterization suggests
the threshold inquiry is a very limited one. See Prima Facie, BLACK’S LAW
DICTIONARY (11th ed. 2019) (describing prima facie showing as one “based on what
seems to be true on first examination, even though it may later be proved to be
untrue”); see, e.g., Smith v. State, 530 S.W.2d 827, 830–31 (Tex. Crim. App. 1975)
(holding elapse of two years and four months from arrest to trial called for further
15 consideration of speedy-trial claim but ultimately concluding there was no violation
of guarantee).
To the extent the Court considers other circumstances at the threshold, these
circumstances appear to be limited to matters 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. Lopez, 631 S.W.3d at 114. These matters are
salient because 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. Id.
So, for example, a delay of eight months to a year or more may not trigger a complete
speedy-trial analysis in a capital murder case even though it will in a less
complicated one. See Deeb, 815 S.W.2d at 705 (indicating that 15-month delay was
not unreasonable in light of complexity of prosecution alleging conspiracy to
commit capital murder but nonetheless conducting complete speedy-trial analysis).
Here, the record indicates that this is a garden-variety DWI case that remains subject
to the general rule that delay of eight months to a year or more calls for a complete
speedy-trial analysis. See Zamorano, 84 S.W.3d at 649 (agreeing that delay of two
years and ten months between arrest and hearing on speedy-trial motion in “plain-
vanilla DWI case” was lengthy enough to trigger complete speedy-trial analysis).
16 In addition to our decision in Porter, the State also relies on several decisions
rendered by our sister court, in which it held that delay attributable to agreed resets
is not to be counted when calculating the length of delay for purposes of deciding
whether a complete speedy-trial analysis is required. Richardson v. State, 631
S.W.3d 269, 275 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d); Lopez v State,
478 S.W.3d 936, 943–44 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); Smith
v. State, 436 S.W.3d 353, 365 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d);
Celestine v. State, 356 S.W.3d 502, 507 (Tex. App.—Houston [14th Dist.] 2009, no
pet.); State v. Kuri, 846 S.W.2d 459, 463 (Tex. App.—Houston [14th Dist.] 1993,
pet. ref’d). We acknowledge that these decisions unequivocally support the State’s
position. However, we decline to follow this line of decisions for several reasons.
First, as explained, our own precedent is to the contrary. Porter, 540 S.W.3d
at 182; see also Cavitt v. State, 507 S.W.3d 235, 245 & n.3 (Tex. App.—Houston
[1st Dist.] 2015, pet. ref’d) (holding delay of 18 months required complete speedy-
trial analysis and assessing impact of resets agreed to and requested by accused as
part of that analysis); Ervin v. State, 125 S.W.3d 542, 546 (Tex. App.—Houston [1st
Dist.] 2002, no pet.) (calculating length of delay as “over eight months” from
accusation to trial in spite of several resets, most of which were agreed, and
concluding that this delay was sufficiently unreasonable to require complete speedy-
trial analysis); Coleman v. State, 760 S.W.2d 356, 357–59 (Tex. App.—Houston [1st
17 Dist.] 1988, pet. ref’d) (reasoning that 16-month delay did not violate speedy-trial
guarantee in part because some of this delay was justifiable as it was attributable to
agreed resets but not excluding these periods of delay from calculation of length of
delay itself); cf. Ussery v. State, 596 S.W.3d 277, 283–85 (Tex. App.—Houston [1st
Dist.] 2019, pet. ref’d) (rejecting argument State advances here without respect to
law because trial court found that most resets were not agreed to or requested by
accused and record supported this finding). We are, of course, obligated to follow
our own precedent when it diverges from the decisions of another court of appeals.
See Mitschke v. Borromeo, 645 S.W.3d 251, 256 (Tex. 2022) (instructing that three-
judge panels must follow materially indistinguishable decisions of earlier panels of
same court unless higher authority has superseded prior panel decision).
Second, as outlined above, our precedent is consistent with the decisions of
the Court of Criminal Appeals, which has not incorporated reasons for delay, like
agreed resets, into the threshold calculation of the length of delay. In contrast, our
sister court’s contrary rule does not seem consistent with the Court’s precedent.
Third, the doctrinal foundation on which our sister court’s contrary rule rests
is no longer as firm as it once may have been. Our sister court’s rule is to a significant
degree derivative of its decision in Caicedo v. State, 769 S.W.2d 597 (Tex. App.—
Houston [14th Dist.] 1989, no pet.). In that case, the court of appeals rejected an
appellant’s contention that the trial court erred in denying his speedy-trial motion,
18 holding the appellant had waived his right to a speedy trial by agreeing to reset the
case. Id. at 598. Based largely on Caicedo, the court of appeals later said that it had
previously held “time covered by a defendant’s agreed resets is to be excluded from
speedy trial consideration.” Kuri, 846 S.W.2d at 463 (citing Caicedo in support).
However, Caicedo’s holding is no longer valid. In Henson, the Court of
Criminal Appeals agreed that an accused may waive his right to a speedy trial, but
it did so based on conventional error-preservation analysis, framing the issue as
“whether a defendant must first preserve error for appellate review through a timely
objection in the trial court.” 407 S.W.3d at 767 & n.10 (citing Rule 33.1 of Texas
Rules of Appellate Procedure, which governs error preservation). There, the Court
held that the accused had in fact waived his right to a speedy-trial because he raised
this issue for the first time on appeal. See id. at 766, 769 (stating that accused raised
issue for first time in court of appeals and had made no effort to demand speedy trial
in trial court). The Court did also observe that the accused had agreed to each and
every reset of the case. Id. at 769. But the Court made this observation in rejecting
the accused’s contention that his announcement of ready for trial constituted a
speedy-trial demand. See id. The Court reasoned that the accused’s announcement
of ready, which was ambiguous at best with respect to the speedy-trial issue, could
not be construed as reflecting an implicit request for a speedy trial on his part because
all his other conduct, including the agreed resets, was inconsistent with a demand
19 for a speedy trial. See id. Caicedo’s holding—that an accused who makes a speedy-
trial motion in the trial court can nonetheless waive the issue by agreeing to resets—
cannot be squared with Henson’s conventional error-preservation analysis. Under
that conventional analysis, agreed resets may affect the merits of a speedy-trial
motion, but they cannot waive that motion. See TEX. R. APP. P. 33.1(a) (generally
providing that to preserve error party must make timely request, objection, or motion
and obtain ruling from trial court or object to trial court’s refusal to rule).
The lone other authority our sister court has cited in support of its rule
excluding agreed resets from speedy-trial calculations is Lewis v. State, 686 S.W.2d
243 (Tex. App.—Houston [14th Dist.] 1985), judgm’t aff’d, 711 S.W.2d 41 (Tex.
Crim. App. 1986). But Lewis is far less apposite than it might otherwise seem. In
that case, the court of appeals excluded the time attributable to an agreed reset in
deciding whether the State had complied with a deadline imposed by Texas’s now-
repealed Speedy Trial Act. Id. at 244–45. But the reason the court did so, which goes
unmentioned in the decision, is because the Act required exclusion of these periods
from statutory speedy-trial calculations. See Robinson v. State, 707 S.W.2d 47, 49–
50 & n.2 (Tex. Crim. App. 1986) (explaining that agreed resets were equivalent to
continuances and thus not included in calculations because Act excluded time
attributable to requested and agreed continuances from statutory deadlines). Thus,
Lewis cannot be marshaled for the position that courts must exclude delay resulting
20 from agreed resets in calculating the length of delay when deciding whether a
complete speedy-trial analysis is required under the federal or Texas constitutions.
In sum, we reject the State’s position that delay attributable to agreed resets is
not counted when calculating the length of delay to decide whether the delay is
unreasonable enough to require a complete speedy-trial analysis. We do so on the
basis of our precedent, which is contrary to the State’s position. But even if we were
considering this issue as a matter of first impression, we would still reject the State’s
position because it is inconsistent with the decisions of the Court of Criminal
Appeals and based on intermediate appellate court decisions that are mistaken.
We overrule the State’s first issue.
II. Complete Speedy-Trial Analysis
The State argues in the alternative that the trial court erred in its evaluation of
the four factors applicable to a complete speedy-trial analysis. The State maintains
that the trial court miscalculated the length of delay, discounted Beck’s acquiescence
in any delay, misapprehended that the delay in lab testing weighed heavily against
the State, and presumed the delay prejudiced Beck without an adequate factual basis.
A. Length of Delay
The trial court concluded that the delay between Beck’s arrest and his speedy-
trial motion, which spanned about one year and ten months, was unreasonable
enough to require a complete speedy-trial analysis and weighed against the State.
21 From Beck’s arrest until he filed his initial speedy-trial motion, one year and
ten months elapsed. This delay exceeds the threshold that typically warrants a
complete speedy-trial analysis. See Lopez, 631 S.W.3d at 114 (stating delay of eight
months to a year or more generally crosses threshold requiring complete analysis).
The record indicates this is an ordinary DWI prosecution that remains subject to the
customary threshold. See Zamorano, 84 S.W.3d at 649–50 (indicating that “simple
DWI” prosecution was not “complex case” and remained subject to usual threshold).
In addition, the delay in question exceeds the threshold by between ten to
fourteen months. This is sufficiently well beyond the threshold for the length of
delay, in and of itself, to weigh heavily against the State. Cf. id. at 649 (indicating
delay of two years and ten months from arrest to speedy-trial hearing was sufficiently
unreasonable in length that, standing alone, it weighed heavily against State).
Accordingly, the record supports the trial court’s evaluation of the first factor.
B. Reasons for Delay
The trial court concluded that DPS, as an agent of the State, was to blame for
the delay in this case and that “all delay” was therefore “attributable solely to the
State’s negligence or misconduct.” It held the delay weighed against the State.
The State contends Beck agreed to all resets and that any delay attributable to
these resets is therefore justifiable and cannot be held against the State. All the reset
forms are signed by Beck or his lawyer. But the forms themselves do not state
22 whether the parties agreed to or opposed the resets or otherwise indicate the effect
of a signature. The lone evidence in the record supporting the State’s position that
Beck agreed to all the resets is the affidavit made by the assistant criminal district
attorney, in which he avers Beck did so. The trial court, however, did not find the
resets were agreed. Instead, the trial court stated in its findings of fact and
conclusions of law that its policy is to assign a reset date and have the parties sign
the reset form “to acknowledge receipt of the written notice of the next setting.”
The trial court implicitly rejected the State’s position that Beck agreed to all
the resets. We cannot say the limited evidence in the record refutes the trial court’s
finding of fact. For this reason, we defer to the trial court’s finding that Beck did not
agree to the resets. See Gonzales, 435 S.W.3d at 808 (instructing that appellate courts
almost entirely defer to trial court’s findings of fact so long as its findings are
supported by the record); Kelly, 163 S.W.3d at 726–28 (instructing that trial court’s
findings are entitled to deference, in part because trial court’s personal knowledge
of parties and sequence of events place it in better position to draw inferences from
proceedings than appellate court, and noting that trial court is entitled to disbelieve
evidence so long as it possesses reasonable articulable basis for doing so); see also
Ussery, 596 S.W.3d at 284 (noting that trial court discounted reset forms that stated
they were agreed because all of its forms say so even when they are not, and holding
that record did not support State’s position that accused agreed to resets).
23 But two of the reset forms—signed by Beck on November 4, 2021 (resetting
the case until January 6, 2022) and January 6, 2022 (resetting the case until March
17, 2022)—show the case was reset to allow Beck to hire counsel. Together, these
forms indicate that just over four months of delay is justifiable because it is
attributable to Beck, not the State. See Balderas, 517 S.W.3d at 768 (stating that
delay attributable to accused or his counsel weighs against speedy-trial violation).
The record shows the remainder of the delay is attributable to the delay by the
DPS in analyzing Beck’s blood for intoxicants and reporting those results. Delay of
this sort is considered negligence, and it counts against the State but not heavily. See
Hopper, 520 S.W.3d at 924 (observing that neutral reasons for delay, like crowded
dockets, weigh against State but do so less heavily than deliberate delay by State).
Therefore, while the trial court erred in finding that all of the delay was
attributable to the State, the record shows that most of it was attributable to the State.
Similarly, the trial court erred in concluding that delay resulted either from
negligence or misconduct, since there is no evidence of misconduct. See Balderas,
517 S.W.3d at 768 (indicating court cannot simply presume misconduct).
Nonetheless, the trial court’s overall conclusion that this factor weighed against the
State remains correct, given that one year and six months of the delay is attributable
to the State’s negligence in timely analyzing and reporting Beck’s blood sample. See
24 Shaw, 117 S.W.3d at 890 (concluding that second factor weighed against State in
case in which “State did not justify most of the lengthy delay” in question).
C. Assertion of the Right
Consistent with Beck’s position, the trial court concluded that Beck was not
required to assert his right to a speedy trial before he filed his motion. The trial court
reasoned that because Beck did not waive his right to a speedy trial, he timely
asserted the right. The trial court further reasoned that because Beck timely asserted
his right to a speedy trial, Beck did not acquiesce in the delay. We cannot agree.
Contrary to the trial court’s reasoning, preservation of error as to the right to
a speedy trial does not necessarily render the assertion of the right timely. See
Richardson, 631 S.W.3d at 277 (noting that tardy assertion of right to speedy trial
does not waive right but does make it hard to show denial of right); Smith, 436
S.W.3d at 366 (agreeing that accused did not waive right to speedy trial but
observing that his actions were inconsistent with demand for speedy trial). An
accused must timely assert his right to a speedy trial, and it weighs against a speedy-
trial challenge when the accused fails to do so. Balderas, 517 S.W.3d at 771.
Here, the record shows that Beck waited about one year and ten months before
he asserted his right to a speedy trial. The Court of Criminal Appeals has
characterized speedy-trial motions filed after comparable lengths of time as being
tardy. See Kelly, 163 S.W.3d at 729 (describing motion to dismiss filed after more
25 than year of delay as tardy); Zamorano, 84 S.W.3d at 651 (agreeing that speedy-trial
motion filed about two-and-a-half years after accused’s arrest was tardy).
Moreover, the record shows Beck acquiesced in this delay. While the record
does not show he agreed to all resets, no evidence exists that suggests he asserted
his speedy-trial right at any point before he filed his initial speedy-trial motion.
Because the burden to show the timely assertion of the right rests on the accused, the
Court of Criminal Appeals has held that when, as here, the record indicates quiet
acquiescence, this indication weighs very heavily against a finding of a speedy-trial
violation. E.g., Shaw, 117 S.W.3d at 890; Dragoo, 96 S.W.3d at 315.
We acknowledge that Beck could not have filed a speedy-trial motion until
the State formally charged him, which the State did not do until about one year and
five months after his arrest. See Cantu, 253 S.W.3d at 283 (stating accused cannot
file speedy-trial motion “until formal charges are made”). But the right to a speedy
trial “can be asserted in other ways” beforehand. Id. And Beck did not do so.
Contrary to the trial court’s conclusion that Beck did not acquiesce in the
delay, its own findings of fact further demonstrate that he did so. For example, with
respect to Beck’s initial speedy-trial motion, the trial court found that he “did not
request a hearing or trial date in the motion” or its accompanying proposed order.
Likewise, with respect to Beck’s second motion seeking dismissal, the trial court
again found that he “did not request a hearing” on the motion. The mere filing of a
26 motion unaccompanied by a timely request for a hearing or ruling indicates
acquiescence in the delay. See Shaw, 117 S.W.3d at 890 (faulting accused for not
seeking hearing on motion to dismiss for several months after filing of motion).
In addition, the trial court found that Beck announced he was not ready for
trial after filing his initial speedy-trial motion. The trial court further found that Beck
announced he was not ready for trial after filing his motion to dismiss. Both
announcements were based on his lawyer’s scheduling conflicts. But the record lacks
evidence that Beck sought to set the case for trial on the first available trial date for
which his lawyer did not have a conflict. When, as here, an accused files a speedy-
trial motion but agrees to or requests further delay afterward, this circumstance
weighs against dismissal. See Emery, 881 S.W.2d at 709 (noting that accused
requested multiple continuances after asserting speedy-trial right and stating that this
circumstance showed accused was not persistent in demanding speedy trial); see also
Zamorano, 84 S.W.3d at 650 (holding delay attributable to defense’s announcement
that it was not ready for trial rendered defense responsible for that resetting).
Hence, we reject the trial court’s findings and conclusion that Beck timely
asserted his right to a speedy trial and did not acquiesce in the delay. Beck’s demand
for a speedy trial was tardy and much of his conduct was inconsistent with someone
who desired a speedy trial rather than dismissal. This is especially true here, given
the length of the delay. See Dragoo, 96 S.W.3d at 314 (stating accused who desires
27 speedy trial is more likely to take action to obtain one when delay persists and noting
lack of timely demand strongly indicates accused does not want speedy trial). The
third factor weighs very heavily against Beck’s request for dismissal. See id. at 314–
15 (holding that accused’s tardy assertion of right and quiet acquiescence in delay
weighed very heavily against him in light of lengthy nature of delay).
D. Prejudice from Delay
The trial court found that “the delay caused Beck to suffer undue anxiety” and
also “caused Beck to suffer memory loss of the event that would damage his ability
to effectively assist his defense at trial.” However, these findings are conclusory.
At the outset, we note that the trial court did not hold an evidentiary hearing
on Beck’s speedy-trial motions. See Lopez, 631 S.W.3d at 115 (noting lack of
evidentiary hearing to support accused’s factual claims). This is especially
significant with respect to the issue of prejudice because prejudice is fact-intensive.
See Henson, 407 S.W.3d at 769 (characterizing prejudice as fact-intensive and
stating it may not be readily apparent without factual development in trial court).
The lone evidence Beck submitted in support of prejudice consists of his trial
lawyer’s verifications accompanying the two speedy-trial motions, in which his
lawyer averred that the facts stated in the motions were true and correct. In the
motions, Beck’s lawyer recited that the delay caused Beck “great anxiety and
concern,” but he did not provide any underlying factual details about this anxiety or
28 concern. Similarly, Beck’s lawyer recited that due to the delay Beck no longer has
an accurate, “independent memory of the facts leading up to his arrest” without
specifying what Beck had forgotten or explaining why these lapses are material.
Conclusory assertions of this sort do not demonstrate prejudice. State v. Moreno,
651 S.W.3d 399, 415 (Tex. App.—Houston [1st Dist.] 2022, no pet.). The bare
assertion of lapsed memory is not evidence of an impaired defense. Munoz, 991
S.W.2d at 829. An accused must show a material impairment of memory. Id.
In addition, trial counsel’s representations on these subjects would not be
competent evidence even if they were not conclusory in nature. A lawyer cannot
testify in lieu of his client about the client’s memory and state of mind to establish
prejudice for purposes of a speedy-trial challenge. See Lopez, 631 S.W.3d at 115
(disagreeing with conclusion that trial court could have made finding based on
unsworn statements of defense counsel because these statements are not competent
evidence unless counsel has personal knowledge on subject); Gonzales, 435 S.W.3d
at 811 (reiterating that statements of counsel on record may be considered as
evidence only when he is speaking based on first-hand knowledge). These facts can
only be established by the client himself. See, e.g., Gonzales, 435 S.W.3d at 805–07
(discussing speedy-trial hearing testimony of accused and his mother regarding their
own lack of memory about underlying events that transpired six years before).
29 The trial court sidestepped these evidentiary defects by concluding that the
length of delay was so excessive that prejudice was presumptive, and the State thus
bore the burden of showing that Beck’s ability to defend himself was unimpaired.
See id. at 812–15 (advising that sometimes “the length of delay may be so excessive”
that it presumptively compromises reliability of trial in ways not susceptible to
proof, and indicating State must rebut presumption of prejudice in these instances
unless record otherwise shows accused acquiesced in excessive delay).
On this record, we do not agree that the length of delay was so excessive as to
excuse Beck from making a particularized showing of prejudice. Here, the length of
delay was one year and ten months from the time of Beck’s arrest until he moved
for a speedy trial. We are unaware of any decision by the Court of Criminal Appeals
in which it has held there was presumptive prejudice due to a delay of this length.
See id. (holding delay was so excessive as to be presumptively prejudicial in case in
which underlying events occurred six years beforehand and relying on federal
decisions with similarly excessive periods of delay, including more than five years,
eight-and-a-half years, and almost ten years); Shaw, 117 S.W.3d at 889–90
(presuming delay of three years and two months prejudiced defense); Dragoo, 96
S.W.3d at 315 (agreeing three-and-a-half-year delay between arrest and trial of
accused was so excessive as to be presumptively prejudicial). Furthermore, this one-
year-and-ten-months delay occurred in a simple DWI prosecution, in which Beck is
30 accused of operating a motor vehicle under the influence in a public place.
Notwithstanding that this much delay is generally unreasonable in a mundane case
like this one, this is not the kind of complex prosecution in which material evidence
is likely to have become lost or unavailable over the course of just one year and ten
months. Cf. Shaw, 117 S.W.3d at 886 (aggravated sexual assault of a child).
In any event, when, as here, an accused acquiesces in the delay, his
acquiescence extenuates any presumptive prejudice. Shaw, 117 S.W.3d at 890;
Dragoo, 96 S.W.3d at 314–15. When this is the case, the accused must show some
prejudice for this factor to favor dismissal. See Shaw, 117 S.W.3d at 890–91
(discounting presumptive prejudice because accused acquiesced in delay and
holding fourth factor weighed against finding of speedy-trial violation, given that
accused failed to show any prejudice); Dragoo, 96 S.W.3d at 315–16 (same). As we
have noted, apart from Beck’s trial lawyer’s conclusory assertion that Beck’s
memory has faded in some unspecified manner, Beck has not identified evidence
that has become lost or unavailable or any other way in which he was prejudiced.
Beck also relies on his “great anxiety and concern” as prejudicial. But as with
his claimed lapse of memory, his evidence of anxiety and concern is conclusory.
Additionally, to support dismissal, anxiety and concern usually must consist of more
than the ordinary anxiety and concern associated with being criminally charged. See
Cantu, 253 S.W.3d at 285–86 (stating general anxiety is relevant but insufficient to
31 show prejudice if it is no more than is usually associated with criminal charge);
Shaw, 117 S.W.3d at 890 (noting accused did not offer evidence of “unusual anxiety
or concern” exceeding that “normally associated with being charged” for offense).
It is undisputed that Beck made bond after his arrest and remained free for the
duration of the proceedings. Therefore, he suffered no prejudice from incarceration.
See Shaw, 117 S.W.3d at 890 (holding pretrial incarceration was immaterial to
prejudice from delay given that accused “was out on bond at all relevant times”).
In conclusion, the trial court erred in its findings and conclusion as to
prejudice. As a matter of law, the record does not establish presumptive prejudice.
As a matter of fact, the record contains no evidence of any prejudice. For these
reasons, the fourth factor—prejudice—does not support a speedy-trial violation.
F. Balancing the Four Factors
The trial court concluded all four factors weighed in favor of finding that the
State violated Beck’s right to a speedy trial. Having concluded on review that two
of these factors—specifically, assertion of the right and prejudice from delay—do
not support finding a speedy-trial violation, we necessarily disagree. Here, the trial
court correctly found the length of delay to be unreasonable, and this would
otherwise weigh heavily against the State. Moreover, the record shows that most of
this delay—all but four months attributable to Beck’s effort to hire a lawyer—
resulted from the State’s negligence, specifically, the undue delay by the DPS
32 laboratory in testing Beck’s blood and in failing to timely report the results of the
test afterward. This too weighs in favor of finding a speedy-trial violation, albeit not
heavily so. But the evidence shows as a matter of law that Beck was tardy in asserting
his right to a speedy trial, doing so only a year and ten months after he was charged
with DWI. It also shows he quietly acquiesced in the delay caused by the State.
Together, these circumstances strongly suggest that Beck did not desire a speedy
trial, especially given the prolonged nature of the delay as to the testing and repeated
case resets. Beck’s conduct after moving for a speedy trial corroborates a lack of
earnestness. In particular, he did not set his speedy-trial motions for hearing, did not
put on evidence in support of dismissal when a hearing occurred, and announced he
was not ready for trial more than once. Finally, the delay was not so excessive that
prejudice is presumptive, and Beck did not introduce any competent evidence of
prejudice. Balancing these four factors, we hold they do not weigh in favor of finding
a violation of Beck’s right to a speedy trial. See Dragoo, 96 S.W.3d at 316 (holding
on net that accused’s quiet acquiescence in delay and lack of prejudice outweighed
three-and-a-half-year delay and State’s failure to explain or justify this delay).
We sustain the State’s second issue.
33 CONCLUSION
We reverse the trial court’s order dismissing this cause, and we remand the
cause for further proceedings consistent with our opinion and judgment.
Gordon Goodman Justice
Panel consists of Justices Goodman, Landau, and Hightower.
Publish. TEX. R. APP. P. 47.2(b).