Realities of the Right to a Speedy Trial

Originally published by Benson Varghese.

The Right to a Speedy Trial in Texas

The government bears the burden of bringing cases to trial—not the defendant—but how long must a defendant wait for his day in court?

The Right

Under the federal constitution and the Texas constitution, the accused in a criminal prosecution is guaranteed the right to a speedy trial. But neither source nor Texas law defines what “speedy” is. That means once a person is accused—either by being arrested or charged—he could wait months or even years before being brought to trial. During this waiting game, evidence may get lost and witnesses may disappear resulting in a weakened defense for the accused.

The Remedy: Dismissal

The “silver lining” of this game is that the defendant’s charges may be fully dismissed if the court finds the accused was deprived of his right to a speedy trial. However, since the sole remedy is a dismissal, courts are hesitant in finding a deprivation of the speedy trial right. This means defendants may bear a heavy burden when claiming they have been denied their constitutional right to a speedy trial.

When has the right to a speedy trial been violated?

The accused’s right to a speedy trial is violated where there has been an unjustified delay between the accusation and trial that results in prejudice to the accused. First, there must exist a delay that is presumptively prejudicial. Then the court will assess whether there has been a deprivation of the speedy trial right. To do so, Texas courts use a balancing test established by the Supreme Court in Barker v. Wingo.

A “Presumptively Prejudicial” Delay

In assessing whether a defendant has been deprived of his speedy trial right, there must first exist a delay that is “presumptively prejudicial.” There is no set time frame that triggers the presumption, but a delay approaching one year is sufficient to trigger a speedy trial inquiry. Orand v. State, 254 S.W.3d 560 (Tex. App. Fort Worth 2008). Once it has been determined there is a presumptively prejudicial delay, the court will use the Barker Balancing Test to assess whether the defendant was deprived of his speedy trial right, and thus entitled to a dismissal.

The Barker Balancing Test

Under the Barker balancing test, there are four factors that the court assesses:

Whether the length of the delay was uncommonly long;
Whether the reason for the delay was justified;
Whether the accused asserted his right; and
Whether the delay resulted in prejudice to the accused.

Barker v. Wingo, 407 U.S. 514 (1972).

Of the four factors, the state bears the burden with regards to the first two factors and the defendant bears the burden of proving the other two factors. The court will evaluate the factors, separately and together, to determine whether they weigh in favor of the state or the defendant. If a majority of the factors weigh in favor of the defendant, the court may find that his right has been violated and his charges may be dismissed.

Defendant’s Burden: Assertion of the Right & Prejudice to His Case

To claim a deprivation of a speedy trial right, the defendant must have asserted his right to a speedy trial. A failure to assert the right may be viewed as the defendant not having the desire for a speedy trial, but rather no trial. Cantu v. State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008). Furthermore, the court may construe a failure to assert the right as an indication that the defendant suffered no prejudice from the delay. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). The defendant may assert the right by clear and unambiguous communications to the court or prosecution seeking a speedy trial. However, a motion to dismiss based upon a speedy trial right may be viewed as not an assertion to a right to a speedy trial, but rather seeking no trial. Adkins v. State, No. 2-01-288-CR, 2003 WL 1524138, at *4 (Tex. App.–Fort Worth Mar. 24, 2003, pet. ref’d).

State’s Burden: Length of the Delay & Reason for the Delay

There is no particular length in delay that constitutes a violation of the right to a speedy trial. Furthermore, portions of the delay may be attributable to the defendant, thus weighing against him. Kelly v. State, 163 S.W.3d 722 (Tex. Crim. App. 2005). However, where there is a deliberate attempt to delay trial to hamper the defense, this factor would weigh heavily against the state. Starks v. State, 266 S.W.3d 605 (Tex. App. El Paso 2008). Common neutral events—such as overcrowded dockets—weigh less heavily against the state. Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002).

Conclusion

Though courts are reluctant to find a defendant has been deprived of this constitutional right, and a defendant may bear the bulk of the burden, it is not impossible. The key to raising this claim lies in properly asserting the right to a speedy trial. It should be asserted timely and frequently in the appropriate manner as to notify the court and prosecution of the accused’s desire for a speedy trial. A slight misstep may result in the court finding that the right was never asserted.

Right to a Speedy Trial was not Denied

Harris v. State, 827 S.W.2d 949 (Tex, Crim. App. 1992).	Capital Murder	13 months
State v. Greenlee, 2007 WL 2460045 (Tex. App.ÑTyler Aug. 31, 2007, pet refÕd).	Misdemeanor possession	13 months
Deeb v. State, 815 S.W.2d 692 (Tex. Crim. App. 1991)	Conspiracy to commit capital murder	15 months
Kelly v. State, 163 S.W.3d 722 (Tex. Crim. App. 2005)	Simple drug possession	17 months
Bryan v. State, 2007 WL 1133216 (Tex. App.ÑSan Antonio Apr. 18, 2007, no pet.)	Possession of drug paraphernalia	18 months
Webb v. State, 36 S.W.3d 164 (Tex. App.ÑHouston [14thÊDist.] 2000, pet refÕd)	Aggravated sexual assault	20 months
Mendez v. State, 212 S.W.3d 382 (Tex. App.ÑAustin 2006, pet. refÕd)	Aggravated assault	23 months
Ortega v. State, 2015 WL 4594113 (Tex. App.ÑHouston [14thÊDist.] July 30, 2015)	Possession of gambling device	More than 27 months
Massey v. State, 2004 WL 2307418 (Tx. App.ÑHouston [1stÊDist.] Oct. 14, 2004, no pet.)	Aggravated robbery	28 months
Phillips v. State, 2004 WL 299279 (Tex. App.ÑTexarkana Feb. 18, 2004, no pet.)	Assault (of corrections officer)	28 months
Adkins v. State, 2003 WL 1524138 (Tex. App.ÑFort Worth Mar. 24, 2003, pet. refÕd)	Possession with intent to deliver	32 months
State v. Smith, 76 S.W.3d 541 (Tex. App.ÑHouston [14thÊDist.] 2002, pet. refÕd)	Burglary and attempted aggravated assault	Over 3 years
Harlan v. State, 975 S.W.2d 387 (Tex. App.ÑTyler 1998, pet. refÕd)	DWI	4 years and 5 months
Ex parte Beech, 591 S.W.2d 502 (Tex. Crim. App. 1979)	Speeding	8 years

Right to a Speedy Trial was Denied

Gonzales v. State, 435 S.W.3d 801 (Tex. Crim. App. 2014).	Injury to child and indecency with child	6 years
State v. Wei, 447 S.W.3d 549, 554 (Tex. App.ÑHouston [14th Dist.] 2014).	DWI	4 years and 3 months
Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002).	DWI	4 years
Chapman v. Evans, 744 S.W.2d 133 (Tex. Crim. App. 1998).	Delivery of controlled substance	2 years and 6 months
Turner v. State, 545 S.W.2d 133 (Tex Crim. App. 1976).	Felony Theft	2 years and 3 months

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