NO. 1442-00







           Cochran, J., delivered the opinion of the Court in which Meyers, Price, Johnson, and Holcomb, J.J., joined. Keller, P.J., filed a dissenting opinion in which Womack and Keasler, J.J., joined. Womack, J., filed a dissenting opinion in which Keller, P.J., joined. Hervey, J., is not participating.


            Appellant was charged with Driving While Intoxicated (“DWI”) in October 1995, but his case was repeatedly reset and lingered on the docket for almost four years. Appellant twice filed speedy trial motions, which the trial court heard and denied. The court of appeals affirmed the trial court’s ruling. Footnote We granted review in this case to determine whether the court of appeals correctly applied the federal constitutional speedy trial factors set out in Barker v. Wingo. Footnote We conclude that, under the applicable United States Supreme Court precedent, appellant was denied his right to a speedy trial. Therefore, we reverse the trial court’s judgment of conviction.


            On October 20, 1995, appellant was charged with DWI– Open Container. He posted bail that same day and made his first court appearance on November 13, 1995. His case was reset to December 13. He appeared on that date. And on December 14, and again on January 16, 1996, when his case was reset for a jury trial. On June 3, 1998, after his case was reset six more times over the subsequent two and one-half years, appellant finally moved to set aside the indictment, arguing that he had been denied his right to a speedy trial. At an August 21, 1998 hearing–in which appellant’s counsel listed each of the prior appearances, appellant testified to how he had been prejudiced, and the State stood silent–the trial judge denied the motion. Appellant continued to appear in court for additional resets. After two more resettings in two months, appellant filed a motion to reconsider his original speedy trial motion.

            Despite the filing of appellant’s motion to reconsider on October 19, 1998, the trial court did not hear it until August 6, 1999. By then, appellant had appeared in court some fifteen times. Almost four years had passed since he was originally charged with DWI. After the trial judge again denied appellant’s speedy trial motion, appellant then pleaded no contest.

            Appellant appealed the denial of his speedy trial motion. The court of appeals affirmed and held that the trial court did not err in denying appellant’s motion for speedy trial and his motion to reconsider. Footnote The court of appeals reasoned that “[a]lthough the State failed to introduce any reason for the delay, [appellant] failed to assert his right for over two and one-half years, and he failed to show that he was prejudiced by the delay.” Footnote


            The Sixth Amendment to the United States Constitution guarantees the accused’s right to a speedy trial. Footnote In addition, Article I, § 10 of the Texas Constitution guarantees the accused in all criminal prosecutions the right to a speedy and public trial. Footnote The Supreme Court has stated that, “On its face, the Speedy Trial Clause is written with such breadth that, taken literally, it would forbid the government to delay the trial of an ‘accused’ for any reason at all.” Footnote Thus, in Barker v. Wingo, the Court “qualified the literal sweep of the provision” by analyzing the constitutional question in terms of four specific factors:

            1)        “whether delay before trial was uncommonly long”; Footnote

            2)        “ whether the government or the criminal defendant is more to blame for that delay”; Footnote

            3)        “whether, in due course, the defendant asserted his right to a speedy trial”; Footnote and

            4)        “whether he suffered prejudice as the delay’s result.” Footnote

The Texas constitutional speedy trial right exists independently of the federal guarantee, but this Court has traditionally analyzed claims of a denial of the state speedy trial right under the factors established in Barker v. Wingo. Footnote

            Under Barker v. Wingo, courts must analyze federal constitutional speedy trial claims by first weighing the strength of each of the above factors and then balancing their relative weights in light of “the conduct of both the prosecution and the defendant.” Footnote None of the four factors is “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Footnote Instead, they are related factors, which must be considered together along with any other relevant circumstances. Footnote No one factor possesses “talismanic qualities,” thus courts must “engage in a difficult and sensitive balancing process” in each individual case. Footnote

            In reviewing the trial court’s ruling on appellant’s federal constitutional speedy trial claim, 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. Footnote Because appellant lost in the trial court on his speedy trial claim, we must presume the trial court resolved any disputed fact issues in the State’s favor, and we must also defer to the implied findings of fact that the record supports. Footnote Because most of the facts are undisputed, the primary issue in this case involves the legal significance of these facts to appellant’s claim. Footnote


A.        Length of the Delay

            The length of the delay between an initial charge and trial (or the defendant’s demand for a speedy trial) acts as a “triggering mechanism.” Footnote Unless the delay is presumptively prejudicial, courts need not inquire into examine the other three factors. Footnote Given the “imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.” Footnote However, the Supreme Court has explained that “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.” Footnote If the accused shows that the interval between accusation and trial has crossed the threshold dividing “ordinary” from “presumptively prejudicial” delay, a court must then consider the extent to which that delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. Footnote This second inquiry is significant to the speedy trial analysis because “the presumption that pretrial delay has prejudiced the accused intensifies over time.” Footnote Thus, any speedy trial analysis depends first upon whether the delay is more than “ordinary”; if so, the longer the delay beyond that which is ordinary, the more prejudicial that delay is to the defendant.

            In this case, the State conceded (and the court of appeals agreed) that the delay between appellant’s arrest and the hearing on his speedy trial motion in this plain-vanilla DWI case, a delay of two years and ten months, was sufficiently lengthy to trigger the court of appeals’ analysis of the other Barker factors. We agree. Footnote Furthermore, the nearly four-year delay between appellant’s October 20, 1995, arrest and his August 6, 1999, plea hearing clearly triggers analysis of the other Barker factors. Because the length of the delay stretched well beyond the bare minimum needed to trigger judicial examination of the claim, this factor–in and of itself--weighs heavily against the State.

B.        Reasons for the Delay

            “[R]elated to length of delay is the reason the government assigns to justify the delay.” Footnote We assign different weights to different reasons. For example,

[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government ... [while a] more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Footnote

Although a finding of “bad-faith delay” renders relief almost automatic, a finding of mere negligence will not become “automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him.” Footnote

            The court of appeals found that this factor weighed against the State “[b]ecause the record is silent regarding the reason for the delay,” but the court of appeals did not weigh it heavily because “no evidence exists that the State deliberately attempted to delay the trial.” Footnote We agree that this factor weighs against the State. The docket sheet shows that twenty-two resets occurred between November 13, 1995 (the date of appellant’s first appearance) and August 6, 1999 (the date of the denial of the motion to reconsider the motion for speedy trial, and plea of no contest).             As the court of appeals notes, and appellant candidly admits, he announced “not ready” on July 19, 1996. One reset is therefore clearly attributable to appellant’s conduct. Footnote But that reset was apparently for three days, until July 22, 1996, to give appellant time to file written pretrial motions in limine, to suppress evidence, and to request a list of the State’s witnesses. Still, the State gave no reason for the remainder of the delay that the court of appeals considered– the delay “between the date Zamorano announced ‘not ready’ and the date his motion for speedy trial was heard - a delay of approximately two years.” And more strikingly, the State gave no reason for the continued delay–the additional year between the date appellant’s original motion for speedy trial was denied and the date that the trial court rejected his motion to reconsider. Footnote This was not a complex case; it was a simple DWI, and yet the State had no explanation for why it could not try the case for four years.

            We disagree that the record is entirely silent concerning the reasons for the delay. The docket sheet entry for January 14, 1999 states: “Transfer to CC #2 (Video is in Spanish)” and “Set for Motions & Trial 2-18-99.” This entry supports trial counsel’s explanation, at the speedy trial hearing, that the delay arose partially because the prosecutors did not understand appellant, who spoke Spanish. Had appellant spoken an unusual language, the difficulty in finding an interpreter would be understandable and support additional delay, but Spanish speakers and interpreters in San Antonio, Texas, are hardly rare. While no evidence indicates that the State deliberately attempted to delay the trial, the fact that the State could not evaluate appellant’s Spanish-speaking video for more than three years, until the case was transferred to another court, constitutes official negligence. “Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.” Footnote We find that this factor weighs against the State--while not heavily, not lightly either. Furthermore, this factor weighs more heavily against the State because, even after the case was transferred to another court for a Spanish-speaking prosecutor to assess appellant’s DWI video, the case still lingered on the docket for another six months.

C.        Assertion of the Right

            According to the Supreme Court, the nature of the speedy trial right “makes it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants.” Footnote Of course, the defendant has no duty to bring himself to trial; that is the State’s duty. Footnote This does not mean that the defendant has no responsibility to assert his right to a speedy trial. Footnote Whether and how a defendant asserts his speedy trial right is closely related to the other three factors because the strength of his efforts will be shaped by them. Footnote Therefore, the 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. Footnote Conversely, a failure to assert the right makes it difficult for a defendant to prove that he was denied a speedy trial. Footnote

            Appellant filed his motion for speedy trial on June 3, 1998, about two and one-half years from the date of his arrest. Footnote The record is unclear whether appellant objected to the resets before that date. During the two hearings, defense counsel argued that appellant had announced “ready” on all dates, save the one “not ready” mentioned above. The court of appeals discounted appellant’s second try for a speedy trial because “there [was] no indication that he requested an immediate setting of the motion to reconsider,” and held that appellant’s “delay and lack of persistence in asserting his right to a speedy trial weigh[ed] against him.” Footnote

            We disagree that the assertion-of-the-right factor weighs against appellant. It is true that appellant’s initial motion was tardy. This late assertion, had no subsequent motion been filed, might well have undercut his Sixth Amendment claim. Footnote But appellant’s second attempt to seek a speedy trial, which came less than two months after the trial court denied his initial motion, evidenced his persistence. Footnote This is not a case where appellant never asked for a hearing. Footnote Nor is this a case in which evidence shows a defendant’s affirmative desire for any delay. Footnote Appellant’s repeated assertion weighs in his favor.

  D.       Prejudice Caused by the Delay

            “Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.” Footnote The Supreme Court has identified three such interests: 1) to prevent oppressive pretrial incarceration; 2) to minimize anxiety and concern of the accused; and 3) to limit the possibility that the defense will be impaired. Footnote Although the last type of prejudice is the most serious, Footnote a defendant’s claim of a speedy trial violation need not necessarily demonstrate prejudice to his ability to present defensive matters. Footnote Appellant was on bail pending his trial and has never claimed that his defense was specifically impaired. The first and third interests are not strongly implicated. The second clearly is. Appellant testified regarding his anxiety and concern:

            Q         Mr. Zamorano, were you arrested for a D.W.I. back in October of 1995?

            A         Yes.

            Q         And did you hear me telling the Court all the court dates that we had been present for?

            A         Yes.

            Q         And is it true that you have been present in court on all of those dates?

            A         Yes.

            Q         And what do you do for a living, sir?

            A         I’m a cement finisher, concrete finisher.

            Q         And when you’ve had to come to these court dates, have you missed work?

            A         I’ve had to work. Right now I was going to work. I was going to work now.

            Q         And if you don’t work, do you get paid?

            A         No.

            Q         So you’ve had to miss working on at least eleven days because of this case?

            A         Yes, the whole time – the whole time I’ve missed.

            Q         And you didn’t get paid for any of those days?

            A         No.

            Q         And it’s true that you’re out on a bond right now; is that correct?

            A         Yes. Yes.


            Q         How often do you have to report to the company?

            A         Every Tuesday–On Tuesdays.

            Q         And when you have to report to the bond company, do you also miss work?

            A         No, I have work, but I’ve gone at 9, 8 at night, even as late as 10 at night.

            Q         So you have to go after work?

            A         From the work I go to report.

            Q         And has this case caused you anxiety?

            A         Yes, a lot of desperation I’ve had. Yes.

            Q         Have you been worried about what was going to happen every time you’ve come to court?

            A         Yes. Yes.

            Q         Can you tell the Judge ho–how it’s affected you that you’ve had to come back to court now for three years?

            A         Well, it’s like–it’s like affected me a lot because they give me 120 per day and I don’t earn, I lose. Well, I can’t–can’t–can’t go, because like last night they called me and now I can’t go.

            Q         And how does that make you feel? Are you stressed out, worried?

            A         Yes, yes like thinking about what was going to go on tomorrow thinking–thinking–I wanted to receive something from her–from her [defense counsel]. I wanted to see her, but she was working here in the center of town. But I got out late–I got out late and I could not see her.

The State did not cross examine appellant, put on any evidence, or argue against the motion.

            The court of appeals– relying on the fact that “the only evidence [appellant] offered to demonstrate his anxiety was his testimony”– found that appellant’s testimony was too little and too late to support a showing of prejudice. The court of appeals said: “given [appellant’s] failure to pursue a motion for speedy trial for over two and one-half years, we infer that the main source of his anxiety was his fear of conviction, which is not a proper consideration.” Footnote We cannot agree with this inference. In Klopfer v. North Carolina, the Court noted:

The petitioner is not relieved of the limitations placed upon his liberty by this prosecution merely because its suspension permits him to go “whithersoever he will.” The pendency of the indictment may subject him to public scorn and deprive him of employment, and almost certainly will force curtailment of his speech, associations and participation in unpopular causes. By indefinitely prolonging this oppression, as well as the “anxiety and concern accompanying public accusation,” the criminal procedure condoned in this case ... clearly denies the petitioner the right to a speedy trial ... Footnote

In Barker, the Court added that, “even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.” Footnote Appellant testified–in Spanish – that he lost $120 per day that he did not work. When appellant testified, he had missed at least eleven days of work due to court appearances. That is a minimum of $1,320 worth of personal prejudice to a day laborer. Footnote It is true that the only evidence appellant offered to demonstrate his anxiety was his own testimony. However, because the State did not challenge appellant’s testimony, it is at least some evidence of the type of “anxiety” that the Supreme Court considers under the prejudice prong of Barker. Footnote The court of appeals dismissed the main source of appellant’s anxiety as “his fear of conviction.” Footnote Even assuming that the court of appeals correctly characterized the source of appellant’s anxiety, the sword of Damocles weighs no less merely because the source of anxiety is appellant’s fear of conviction and the resultant as-yet-unknown punishment. Here, the length of the delay itself supports an inference of actual prejudice, as does appellant’s testimony of the direct economic costs, the four years’ worth of disruptions to his job, and the weekly requirement to report to the bonding company. Footnote

E.        Balancing

            We find that all four factors weigh in favor of relief. First, the length of the initial delay– two years and ten months– was presumptively prejudicial, and the additional year of delay after the denial of appellant’s original speedy trial motion was clearly prejudicial. Second, the delay was the result of the State’s negligence. Third, appellant twice asserted his right to a speedy trial. Finally, appellant produced evidence of prejudice which the State failed–indeed did not attempt– to rebut. At no point did the State challenge the merits of appellant’s claim to a speedy trial. The State sat silent on all fronts; it neither offered any evidence, nor cross-examined appellant, nor made any legal argument in the trial court to justify the delay. Footnote Because the State’s negligence caused a delay which was nearly six times as long as the delay generally considered sufficient to trigger judicial review and it did not rebut, explain, or minimize the presumption of prejudice, appellant is entitled to relief. Footnote Even if appellant’s actual prejudice was minimal, “[c]ondoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state’s fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority.” Footnote This DWI prosecution may have been of little moment to the State, but it mattered greatly to appellant. Footnote Because we find that appellant’s constitutional right to a speedy trial was violated, we reverse appellant’s conviction and remand the case to the trial court for entry of a judgment of acquittal.

Cochran, J.

Delivered:       September 11, 2002