Ricky Bee v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00393-CR

Ricky Bee, Appellant

v.

The State of Texas, Appellee

FROM THE 147TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-DC-19-207102, THE HONORABLE CLIFFORD A. BROWN, JUDGE PRESIDING

ME MO RAN DU M O PI N I O N

Ricky Bee was charged with the felony offense of driving while intoxicated

(“DWI”) with two or more prior convictions for the same offense. See Tex. Penal Code §§ 49.04,

.09. On appeal, Bee contends that the trial court violated his right to a speedy trial and should have

granted his speedy-trial motion. We will affirm the trial court’s judgment of conviction.

BACKGROUND

In October 2019, a police officer initiated a traffic stop of Bee after observing him

commit a traffic violation, and another officer arrived on the scene shortly thereafter. After

approaching Bee’s car and interacting with Bee, the officers detected an odor of alcohol, observed

that his eyes were red and watery, and noticed that he was slurring his speech. Bee agreed to

submit to field sobriety testing, and the officers observed him exhibit multiple indicators of

intoxication and arrested him for DWI. Subsequent testing on Bee’s blood revealed that he had a

blood-alcohol level of .138.

A few days after his arrest, the trial court appointed an attorney to represent Bee. In

December 2019, Bee was indicted for felony DWI with two or more prior convictions for the same

offense. Three months later, Bee was released on a personal bond, but the State filed a motion to

revoke his bond in August 2020, alleging that he failed to comply with a condition of his release.

After an arrest warrant was issued, Bee was arrested in September 2020.

In November and December 2020, Bee filed pro se requests asking the trial court

to remove his appointed counsel. Later in December 2020, the trial court appointed a different

attorney to represent Bee. In February 2021, the trial court appointed a third attorney to represent

Bee. The following month, Bee was again released on personal bond. In December 2021, the trial

court appointed a new attorney to represent Bee.

After Bee failed to appear for a jury docket call in April 2022, a capias was issued.

This was the seventh jury trial setting between January and April 2022 with the previous six being

reset by the trial court. Bee was arrested again in August 2022, which was four months after the

capias issued.

In October 2022, approximately three years after his initial arrest, Bee and his

attorney appeared for a jury docket call. The State explained that one of its witnesses was currently

unavailable and, therefore, it was not ready for trial. In response, the trial court stated that it was

releasing Bee on personal bond because the State was not ready and because he had been in jail

for violating the conditions of his bond. Later, Bee personally asserted that he wanted the charges

dropped because his counsel was ineffective and because Bee had asked for a jury trial nearly

three years earlier. The trial court explained to Bee that it was attempting to schedule a trial for

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him but that it was going to reset the case that day and allow him to file any motions that needed

to be filed.

During that hearing, Bee’s attorney stated that she had filed that day a speedy-trial

motion and that she was requesting a ruling on the motion. The motion asserted that Bee would

be prejudiced if his trial was not held before January 2023 because the case was three years old

and because he had been in jail for 388 days. At the hearing, Bee’s attorney requested that the trial

be held before the end of 2022, and the trial court set the trial for November 15, 2022. The State

informed the trial court that one of its necessary witnesses was on military duty out of the country

until early the next year. The trial court confirmed that it wanted to keep the set trial date but

explained that it would consider whether the date needed to be changed later. The trial court

instructed the State to file a response to the speedy-trial motion as soon as possible. The State

filed a response on November 2, 2022. No additional hearing on the motion was held, and the trial

court made no express ruling on the speedy-trial motion.

On February 13, 2023, the State filed a motion for continuance asserting that the

necessary witness had returned to the United States but requesting that trial be set for March 2023

because the witness needed a medical procedure and would need time to recover. No hearing was

held on the motion, and no express ruling on the motion was made.

The trial in this case started on February 28, 2023, and Bee did not make any other

speedy-trial claim. After considering the evidence presented at trial, the jury found Bee guilty of

the charged offense. Bee requested that the trial court assess his sentence, and the trial court

sentenced Bee to two years’ imprisonment.

Bee appeals the trial court’s judgment of conviction.

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DISCUSSION

In one issue on appeal, Bee contends that the trial court violated his right to a speedy

trial by denying his speedy-trial motion and granting a continuance until February 2023. See U.S.

Const. amend. VI. Accordingly, Bee urges that his conviction should be reversed and that the case

should be remanded to the trial court for further proceedings to allow the trial court to dismiss the

charges against him with prejudice.

Preservation

As an initial matter, we note that the State asserts in its appellee’s brief that

Bee’s claim was not preserved for appeal. See Tex. R. App. P. 33.1 (setting out preservation

requirements). When making this assertion, the State argues that the trial court did not expressly

rule on the speedy-trial motion. Further, the State notes that the trial court initially granted the

relief requested during the hearing by scheduling the trial for November 2022, which was before

the January 1, 2023 deadline suggested in Bee’s motion. Moreover, the State notes that even

though the trial did not actually begin until February 2023, nothing in the record indicates that Bee

objected to the further delay. For these reasons, the State urges that Bee failed to preserve his

speedy-trial claim.

As suggested by the State, before a party may present “a complaint for appellate

review, the record must show that . . . the complaint was made to the trial court by a timely request,

objection, or motion” “with sufficient specificity to make the trial court aware of the complaint”

and that the trial court either “(A) ruled on the request, objection, or motion, either expressly or

implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party

objected to the refusal.” See id. R. 33.1(a). The State correctly points out that the Court of

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Criminal Appeals has determined that a defendant may not present a speedy-trial claim for the first

time on appeal when he made no objection on speedy-trial grounds and filed no speedy-trial

motion. See Henson v. State, 407 S.W.3d 764, 766, 768 (Tex. Crim. App. 2013); see also Crocker

v. State, 441 S.W.3d 306, 312 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (determining

that speedy-trial claim was not preserved where no speedy-trial motion was presented to trial

court); Guevara v. State, 985 S.W.2d 590, 592, 593 (Tex. App.—Houston [14th Dist.] 1999, pet.

ref’d) (same).

In reaching that conclusion, the Court noted that a defendant can often benefit from

the deprivation of his speedy-trial rights and that allowing this type of claim to be presented for

the first time on appeal would allow a defendant to obtain the benefit of the passage of time without

invoking his speedy-trial rights but then allow him to argue on appeal that the case should have

been dismissed due to the delay. Henson, 407 S.W.3d at 769. Further, requiring that the claim be

preserved allows for a record to be sufficiently developed for the purpose of reviewing the claim

on appeal, id., but the Court has more recently explained that no specific hearing on a speedy-trial

motion need be conducted, Taylor v. State, 667 S.W.3d 809, 810 (Tex. Crim. App. 2023). Instead,

the Court explained that the relevant information needs to be included somewhere in the record

and that deficiencies in the information would “not prevent an appellate court from weighing the

factors; it merely affects how they will be weighed.” Id.

The circumstances at issue in this case differ significantly from those of Henson

and other cases in which appellate courts determined that the claim had not been preserved. Bee

filed a speedy-trial motion before trial and presented the motion during a pretrial hearing and

requested a ruling. See Tex. R. App. P. 33.1(a). The trial court informed the parties that it would

rule soon and informed the State to quickly file a response to the motion. The State filed a response

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asserting that there was no speedy-trial violation and later filed a motion for continuance, and the

trial court moved the trial start date beyond the date requested by Bee in his motion and in the

pretrial hearing.

Although the trial court did not make an express ruling, the Rules of Appellate

Procedure specify that an issue can be preserved for appellate consideration if a ruling is obtained

“implicitly.” Id. “Appellate courts will generally find that a trial court made an implicit ruling on

an objection when the objection was brought to the trial court’s attention and the trial court’s

subsequent action clearly addressed the complaint.” State v. Kelley, 20 S.W.3d 147, 153 n.3 (Tex.

App.—Texarkana 2000, no pet.).

Under these circumstances, we believe that the trial court’s actions constituted an

implicit denial of Bee’s speedy-trial motion and that his speedy-trial claim has been preserved.

See Docket v. State, 281 S.W.3d 152, 156 n.8 (Tex. App.—Texarkana 2009, no pet.) (concluding

that defendant preserved speedy-trial claim by requesting ruling on motion to dismiss and where

trial court denied motion but reserved right to revisit that ruling); Kelley, 20 S.W.3d at 153 (noting

that trial court can implicitly deny speedy-trial motion after motion was “specifically brought to

the trial court’s attention”); see also Grant v. State, No. 04-23-00786-CR, 2024 WL 4218584, at *3

(Tex. App.—San Antonio Sept. 18, 2024, no pet.) (mem. op., not designated for publication)

(assuming that trial court “implicitly denied appellant’s [speedy-trial] motion by continuing the

trial setting”). Accordingly, we now turn to the merits of the claim.

Right to a Speedy Trial

“The constitutional right to speedy trial protects defendants from oppressive pretrial

incarceration, mitigates the defendant’s anxiety and concern from public accusations, and ensures

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that the defendant can mount a defense.” State v. Davis, 549 S.W.3d 688, 697 (Tex. App.—Austin

2017, no pet.); see also Leachman v. Stephens, 581 F. App’x 390, 402 (5th Cir. 2014) (explaining

that right to speedy trial applies to states through Fourteenth Amendment). However, unlike other

constitutional rights, the deprivation of the right can benefit a defendant by “making it more

difficult for the prosecution to meet its burden of proof.” Henson, 407 S.W.3d at 766-67.

Moreover, the right to a speedy trial is “a more vague concept than other procedural rights,” and

the violation of the right leads to a “more serious” remedy than the remedy for other violations

because it results in the “dismissal of the indictment.” Barker v. Wingo, 407 U.S. 514, 521, 522

(1972). “There is no fixed amount of delay that is too much.” Henson, 407 S.W.3d at 767. “The

right to a speedy trial attaches when a person becomes an accused,” which “can be when he is

arrested or when he is charged.” Id.

Speedy-trial claims are analyzed by “applying the fact-specific balancing test set

forth in Barker, under which the conduct of the prosecution and the defendant are weighed based

on four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion

of his right, and (4) any prejudice inflicted by the delay.” Davis, 549 S.W.3d at 697. “Texas courts

apply the same Barker test for speedy-trial analysis under state law as under federal law.” Id.; see

Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). Appellate courts balance these

factors “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.”

Balderas v. State, 517 S.W.3d 756, 773 (Tex. Crim. App. 2016) (quoting Cantu v. State, 253 S.W.3d

273, 281 (Tex. Crim. App. 2008)). “If the delay is unreasonable enough to be presumptively

prejudicial, the first Barker factor is satisfied and consideration of the remaining three factors is

triggered.” Davis, 549 S.W.3d at 697. Although the amount of delay that will provoke a speedy-

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trial inquiry is “necessarily dependent upon the peculiar circumstances of the case,” Zamorano v.

State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002) (quoting Barker, 407 U.S. at 530-31), in general,

delays “approaching one year” are sufficient to warrant a speedy-trial inquiry, Balderas, 517

S.W.3d at 768.

“Under the Barker test, the State bears the burden of justifying the length of the

delay, while appellant must meet his burden of proving his assertion of the right to speedy trial and

showing prejudice.” Davis, 549 S.W.3d at 697. “The defendant’s burden of proof on the latter two

factors ‘varies inversely’ with the State’s degree of culpability for the delay.” Cantu, 253 S.W.3d

at 280 (quoting Robinson v. Whitley, 2 F.3d 562, 570 (5th Cir. 1993)). “Thus, the greater the State’s

bad faith or official negligence and the longer its actions delay a trial, the less a defendant must

show actual prejudice or prove diligence in asserting his right to a speedy trial.” Id. at 280-81.

“[T]he four factors are related and must be considered together along with any other relevant

circumstances.” Id. at 281. “As no factor possesses ‘talismanic qualities,’ courts must engage ‘in

a difficult and sensitive balancing process’ in each individual case.” Id. (quoting Zamorano, 84

S.W.3d at 648). “Because dismissal of the charges is a radical remedy, a wooden application of

the Barker factors would infringe upon ‘the societal interest in trying people accused of crime,

rather than granting them immunization because of legal error.’” Id. (internal footnote omitted)

(quoting United States v. Ewell, 383 U.S. 116, 121 (1966)). “The constitutional right is that of a

speedy trial, not dismissal of the charges.” Id.

“An appellate court reviewing a trial court’s ruling on a motion to dismiss for want

of a speedy trial must do so in light of the arguments, information, and evidence that was available

to the trial court at the time it ruled.” Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003).

Appellate courts “review factual components of the court’s ruling on a speedy-trial claim for an

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abuse of discretion and review legal determinations de novo, but the balancing test as a whole

presents a purely legal question.” Davis, 549 S.W.3d at 697-98. Accordingly, “appellate courts

defer not only to a trial judge’s resolution of disputed facts, but also to his right to draw reasonable

inferences from those facts.” Cantu, 253 S.W.3d at 282. “And all of the evidence must be viewed

in the light most favorable to his ultimate ruling.” Id.

Length of Delay

On appeal, Bee asserts that the amount of the delay between his conviction and his

arrest or indictment weights against the State because the trial began approximately three and a

half years after his arrest and four months after he invoked his speedy-trial rights. In addressing

this factor, we must determine the length of the delay and decide whether the length of the delay

was presumptively prejudicial in order to determine whether it is necessary to consider the

remaining Barker factors. See State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

As set out above, Bee was arrested in October 2019, and the indictment in the

clerk’s record shows that he was charged with DWI in December 2019. The trial in this case did

not begin until February 28, 2023. Regardless of whether the time is measured from when Bee

was arrested or formally charged, years passed between when the right to a speedy trial attached

and when the trial commenced. Accordingly, we conclude that the delay in this case is

presumptively prejudicial and consider the remaining Barker factors. See Balderas, 517 S.W.3d

at 768.

Reason for the Delay

In his brief, Bee argues that he invoked his right to a speedy trial in October 2022

and asserts that there is no explanation for the delay leading up to his invocation of the right, which

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he asserts should weigh against the State. Although Bee acknowledges that the State informed the

trial court in October 2022 that it needed additional time because its key witness was not available,

Bee asserts that the State did not issue a subpoena for the witness until October 2022. Bee asserts

that the State’s failure to previously subpoena the witness “inexplicably delayed” the trial for “an

additional two months.” Accordingly, Bee urges that this factor weighs against the State.

When appellate courts consider the reason for the delay, they “assign different

weights to different reasons” because “[s]ome reasons are valid and serve to justify an appropriate

delay.” Id. “Deliberate delay intended to ‘hamper the defense’ weighs heavily against the State,

while more neutral reasons, such as negligence or overcrowded courts, weigh less heavily.”

Id. (quoting Vermont v. Brillon, 556 U.S. 81, 90 (2009)). Appellate courts also consider whether

the defendant or the State is more responsible for the delay. Id. “Delay caused by the defendant

or his counsel weighs against the defendant,” but “[d]elay caused by law enforcement or the

prosecution weighs against the State.” Davis, 549 S.W.3d at 699.

During the October 2022 pretrial hearing, Bee personally asserted that he had asked

for a jury trial three years earlier and that the State was not ready for trial, but the record does not

indicate that the request was made or the nature of that request. In its response to Bee’s speedy-

trial motion, the State asserted that much of the delay following Bee’s arrest and indictment at the

end of 2019 was due to the unforeseeable initial impact of the COVID-19 pandemic. See Laird v.

State, 691 S.W.3d 30, 40 (Tex. App.—Austin 2023, pet. ref’d) (explaining that if delays related to

pandemic and accompanying court closures could be held against State, “they do so but slightly”);

State v. Conatser, 645 S.W.3d 925, 930 (Tex. App.—Dallas 2022, no pet.) (“Delay caused by the

onset of a pandemic cannot be attributed as fault to the State”); see also Travis County Criminal

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District Courts District Court Plan for Resuming In-Person Jury Trials & Dockets Effective

January 31, 2022, available at https://www.traviscountytx.gov/images/courts/Docs/DC_Plan_for_

Resuming_In-Person_Dockets_Trials-Eff_1-31-22.pdf (last checked Jan. 27, 2025).

Further, the State explained in its response that the delay was caused in part by

Bee’s repeatedly requesting the appointment of new counsel, and the clerk’s record reflects that

Bee asked to have his appointed counsel removed from the case in November and December 2020

and that the trial court appointed a new attorney in December 2020, February 2021, and December

2021. See Davis, 549 S.W.3d at 703 (explaining that delay from appointment of new counsel “was

a justified delay”).

Additionally, the State mentioned in its response that Bee had been released on

bond but was subsequently arrested for bond violations, and the clerk’s record shows that Bee was

released on personal bond three months after being indicted and was arrested again in September

2020 for allegedly violating the conditions of his release. Moreover, the State asserted that Bee

agreed to multiple trial resets, and the record shows that the trial setting was repeatedly reset from

January 2022 to April 2022 and does not indicate that any objection to those resets was made. See

Celestine v. State, 356 S.W.3d 502, 507 (Tex. App.—Houston [14th Dist.] 2009, no pet.)

(explaining that agreed resets are inconsistent with assertion of speedy-trial right and that delay

from agreed resets should not be included in speedy-trial computations). The record shows that

Bee was released on bond in early 2021 but failed to appear for a jury docket call resulting in

a capias being issued in April 2022. Cf. Prescott v. State, 123 S.W.3d 506, 516 (Tex. App.—

San Antonio 2003, no pet.) (noting that “failures to appear” partially explained delay). The record

shows that although the capias issued in April 2022, Bee was not located and arrested until August

2022. Cf. Maldonado v. State, No. 13-12-00696-CR, 2014 WL 5092896, at *6 (Tex. App.—

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Corpus Christi-Edinburg Oct. 9, 2014, pet. ref’d) (mem. op., not designated for publication)

(noting that inability to locate defendant due to his fleeing helped explain delay).

In addition, the State related that Bee asked for a continuance in September 2022

and that the two sides participated in plea negotiations during the case. Cf. Munoz, 991 S.W.2d

at 824 (noting that “delay caused by good faith plea negotiations is a valid reason for the delay and

should not be weighed against the prosecution”). And nothing in the record indicates that the State

deliberately delayed the trial for strategic gain. See Conatser, 645 S.W.3d at 930.

Finally, the State explained that it needed additional time after the speedy-trial

motion was filed because its main witness was on military duty out of the country until early 2023

and that the State offered to expedite resolution of the case by allowing virtual testimony from that

witness. See Barker, 407 U.S. at 531 (“a valid reason, such as a missing witness, should serve to

justify appropriate delay”).

Viewing the evidence in the light most favorable to the trial court’s ruling, nothing

establishes deliberate delay on the part of the State designed to thwart Bee’s defense, and we

conclude that the delay in resolving this case should not be attributed to the fault of the State.

Assertion of the Right to a Speedy Trial

On appeal, Bee contends that he asserted his right to a speedy trial in October 2022

through a speedy-trial motion and an oral motion at the pretrial hearing.1 For that reason, Bee

suggests that this factor weighs against the State.

1

In his brief, Bee also notes that he filed two pro se documents starting in December 2020

expressing frustration with the slow pace of the case. However, both of those documents indicated

that he was unhappy with his counsel at the time and did not mention his right to a speedy trial. In

any event, as the documents establish, Bee was represented at the time he filed those documents.

“[A] defendant has no right to hybrid representation,” and “a trial court is free to disregard any

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Although a “defendant has no duty to bring himself to trial,” he “does have the

responsibility to assert his right to a speedy trial.” Cantu, 253 S.W.3d at 282. A “defendant’s

assertion of his speedy-trial right (or his failure to assert it) is entitled to strong evidentiary weight

in determining whether the defendant is being deprived of the right.” Id. at 283. “Filing for a

dismissal instead of a speedy trial will generally weaken a speedy-trial claim because it shows a

desire to have no trial instead of a speedy one.” Id. “Repeated requests for a speedy trial weigh

heavily in favor of the defendant, while the failure to make such requests supports an inference

that the defendant does not really want a trial, he wants only a dismissal.” Id. “A defendant’s

failure to timely demand a speedy trial indicates strongly that he did not really want one.” Davis,

549 S.W.3d at 704. The longer the delay “the more likely a defendant who wished a speedy trial

would be to take some action to obtain it.” Balderas, 517 S.W.3d at 771 (quoting Dragoo v. State,

96 S.W.3d 308, 314 (Tex. Crim. App. 2003)). Accordingly, “inaction weighs more heavily against

a violation the longer the delay becomes.” Id. (quoting Dragoo, 96 S.W.3d at 314). “A lengthy

delay in asserting the right makes it difficult to prove denial of a speedy trial and tends to diminish

the importance of the State’s inability to excuse the delay.” Clarke v. State, 928 S.W.2d 709, 714

(Tex. App.—Fort Worth 1996, pet. ref’d).

As discussed previously, Bee was arrested in October 2019 and indicted in

December 2019. Further, although the trial was reset multiple times, nothing in the record

indicates that Bee objected to the resets. Moreover, he did not file a speedy-trial motion or present

the motion to the trial court until October 2022. See Orosco v. State, 827 S.W.2d 575, 577 (Tex.

App.—Fort Worth 1992, pet. ref’d) (noting that defendant “did not request a prompt trial until over

pro se motions presented by a defendant who is represented by counsel.” See Robinson v. State,

240 S.W.3d 919, 922 (Tex. Crim. App. 2007).

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two years after his indictment” when determining that defendant’s right to speedy trial was not

violated); see also Balderas, 517 S.W.3d at 771 (noting that lack of timely demand for speedy trial

indicates that defendant did not really want one). Moreover, nothing in the record indicates that

Bee pursued his motion for speedy trial after the hearing. No additional motion was filed, and no

additional hearing addressing speedy-trial complaints was held. Further, nothing in the record

indicates that Bee objected to the trial court’s decision to schedule the trial for February 2023,

which was after the date originally requested in Bee’s only speedy-trial motion. See Clarke,

928 S.W.2d at 714, 715 (concluding that trial court could have determined that assertion of right

to trial was weak where defendant “did not pursue his motion for a speedy trial” after filing it); see

also Davis, 549 S.W.3d at 707 (determining that assertion of “right to speedy trial was ambiguous

at best” where defendant “acquiesced to the delay caused by waiting for the DNA test results

because he thought it was ‘the best course of action’”).

Given the above and after viewing the record in the light most favorable to the trial

court’s ruling, we conclude that the third Barker factor weighs in favor of the State.

Prejudice

On appeal, Bee asserts that he was prejudiced by the delay but does not identify

how the delay prejudiced him. Similarly, during the pretrial hearing and in his speedy-trial motion,

Bee did not identify any specific prejudice that he suffered and instead generally asserted that he

would be prejudiced if the trial were not conducted soon because the case was “now three years

old.” However, Bee contends on appeal that it is not necessary to produce proof of actual prejudice

in a case like this where the length of the delay is several years and urges that prejudice should be

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presumed in this case. For that reason, Bee asserts that this factor weighs in favor of a speedy-

trial violation.

In addressing the fourth Barker factor, appellate courts, when determining whether

and how much a defendant has been prejudiced by a delay, should bear in mind that “pretrial delay

is often both inevitable and wholly justifiable.” Cantu, 253 S.W.3d at 285 (quoting Doggett v.

United States, 505 U.S. 647, 656 (1992)). Appellate courts should “consider three interests of

defendants that the Speedy Trial Clause was designed to protect: (1) preventing oppressive pretrial

incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the

possibility that the defense will be impaired.” Balderas, 517 S.W.3d at 772. “The last interest is

the most important because the fairness of the criminal-justice system is distorted when a

defendant is unable to adequately prepare his defense.” Id. “As to the ‘oppressive pretrial

incarceration’ subfactor, the ‘dispositive consideration’ is the impairment of a defendant’s liberty

with its effects upon the defendant.” Munoz, 991 S.W.2d at 828. “[E]vidence of generalized

anxiety, though relevant, is not sufficient proof of prejudice under the Barker test, especially when

it is no greater anxiety or concern beyond the level normally associated with a criminal charge or

investigation.” Cantu, 253 S.W.3d at 286.

Although a “defendant has the burden to make some showing of prejudice,” “a

showing of actual prejudice is not required.” Balderas, 517 S.W.3d at 772. That is so “because

excessive delay presumptively compromises the reliability of a trial in ways that neither party

can prove or even identify.” Shaw, 117 S.W.3d at 890. “On the other hand, this presumption of

prejudice to the defendant’s ability to defend himself is ‘extenuated . . . by the defendant’s

acquiescence’ in the delay.” Id. (quoting Doggett, 505 U.S. at 658). “The first three [Barker]

factors should be used to determine whether the defendant bears the burden to put forth specific

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evidence of prejudice (or whether it is presumed).” United States v. Bergfeld, 280 F.3d 486, 490

(5th Cir. 2002).

Although the record shows that Bee was arrested in October 2019, it also shows

that Bee was released on personal bond in early 2020. Bee was again arrested in September 2020,

but the arrest was for failing to comply with a condition of his release. In March 2021, Bee was

again released on personal bond and remained out of custody until August 2022 when he was

arrested for failing to appear for a jury docket call. Accordingly, the record shows that Bee was

not in custody during most of the delay and that most of the period that he was in custody was for

violations other than his DWI offense. Accordingly, the interest designed to prevent oppressive

pretrial incarceration only minimally applies here. See Dokter, 281 S.W.3d at 160; see also

Balderas, 517 S.W.3d at 773 (noting that claim of prejudice was “undercut by the fact that he was

being held on other serious charges”). Similarly, because Bee made no showing regarding any

anxiety that he experienced due to his being in custody, the second interest also does not bear in

the analysis here. See Dokter, 281 S.W.3d at 160.

Regarding the third interest that the defense will possibly be impaired, we cannot

agree with Bee that the circumstances of this case warrant a presumption that Bee was prejudiced

by the delay. Although the length of the delay in this was more than three years, Bee did not assert

his right to a speedy trial until approximately three years after he was arrested. Much of the delay

was due to factors that either should not be held against the State or should only minimally weigh

against the State, and nothing in the record indicates that Bee objected to the delay other than by

filing one speedy-trial motion. Accordingly, the remaining Barker factors establish that any

presumption of prejudice was extenuated in this case. See Shaw, 117 S.W.3d at 890. Further, Bee

did not argue either in his speedy-trial motion or at the pretrial hearing that any lapses in memory

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would prejudice him or that witnesses were no longer available due to the delay. See Munoz,

991 S.W.2d at 829 (explaining that bare assertion of dimming memory did not constitute showing

of impairment of defense); Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973) (noting

that to establish prejudice defendant must show that witnesses were no longer available, that their

testimony would be material and relevant, and that he exercised due diligence in attempting to

find and produce them). Bee asserted in his motion and at the pretrial hearing that he would be

prejudiced if a trial were not held before January 2023; the trial started less than two months after

that suggested deadline.

After viewing the record in the light most favorable to the trial court’s ruling, we

conclude that the fourth Barker factor also weighs in favor of the State.

In summary, the first factor warrants consideration of the remaining Barker factors

and weighs in favor of a speedy-trial violation. However, the second, third, and fourth Barker

factors do not weigh in favor of a violation. Accordingly, we conclude that the trial court did not

abuse its discretion by denying Bee’s speedy-trial motion and, therefore, overrule his issue on

appeal. See Laird, 691 S.W.3d at 46.

CONCLUSION

Having overruled Bee’s issue on appeal, we affirm the trial court’s judgment of

conviction.

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__________________________________________

Karin Crump, Justice

Before Justices Theofanis, Crump, and Ellis

Affirmed

Filed: January 29, 2025

Do Not Publish

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