How to Win Speedy Trial Arguments in Texas Part I

Let’s admit it, no one really cares about the Sixth Amendment. Very few arguments can be made in favor of it and even fewer cases actually win a successful argument. Even when you do win in your favor charges can be brought later.

This article will be divided into two parts.

What is the Sixth Amendment?

The Sixth Amendment covers a lot of things, but the focus of this article is the right to a Speedy Trial.

Innocent Until Proven Guilty?

We have all heard of this but where in the Constitution is it? Many are surprised that it is nowhere in the Constitution but rather this doctrine has been adopted through case law.

Read:

McGrew v. State, 143 S.W. 2d 946, 947 (Tex. Crim. App. 1940).

Massey v. State, 154 Tex. Crim. 263, 226 S.W.2d 856 (1950).

Taylor v. Kentucky, 436 U.S. 478 (1978).

Tex. Code Crim. Proc. art. 38.03, makes it clear that all “persons are presumed to be innocent… The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.”

What is a Speedy Trial?

While the phrase “speedy trial” is written into the Constitution it lacks a proper definition.

Under Tex. Code Crim. Proc. art. 32.01 the State has until before the last day of the next term of the court… or on before the 180th day after the date of commitment or admission to bail, which ever date is later.” The proper remedy to seek relief is through a Writ under 32.01.

Something very important to note is that if the grand jury is still in session any arguments you make will be improper. Refer to Tex. Gov't Code §24.901 – 24.920

Secondly, if the grand jury indicts the Defendant on the 179th day you cannot make a Speedy Trial argument.

Thirdly, unrelated to Speedy Trial, but important to know, is that any motions filed pre-indictment are improper to file and a court does not have power pre-indictment to force the State to do anything. Courts are restricted to granting relief through Writs of Habeas Corpus. Ex parte Dobbs, 978 S.W.2d 959, 962 (Tex. Crim. App. 1998). This will be discussed further below.

What Happens If I Do Succeed?

If the Court finds a Speedy Trial violation two things can happen:

The case will be dismissed, and bail discharged,

If the Court finds that the Defendant has been prejudiced the case will be dismissed with prejudice.

Note if the case is not dismissed with prejudice charges can be brought in the future.

How to Prepare for Speedy Trial Violations

The proper procedure for filing Speedy Trial violations is to file a Writ of Habeas Corpus under CCP 32.01.

However, before you prepare to argue for a dismissal under Speedy Trial, you must make sure if the Defendant is already indicted, you must assert the Defendant’s right to speedy trial through a Motion. The proper procedure is to give Notice to the State. If the State fails to act, then you can proceed with a Writ under CCP 32.01.

If a Motion for Speedy Trial is filed for the sake of getting a case dismissed, the Court will reject your argument as frivolous. You must assert the right first and if no action is taken then the proper relief is dismissal.

If the Defendant is in jail after 180 days and hasn’t been indicted, the proper remedy is a Writ under 32.01.

If the Defendant is on bail, it is less likely, after 180 days, that the case will be dismissed. For a dismissal while on bail most courts want to see at least a year out on bail with no activity on the case.

The arguments presented are meant to be used by someone in jail.

Texas Case Law on Speedy Trial

Texas had adopted the four-factor test set forth in Barker v. Wingo, 407 U.S. 514, 516 (1972), as adopted in Ex parte Martin, 6 S.W.3d 524, 529 (Tex. Crim. App. 1999). Those four factors are:

• Length of delay
• Reason for the delay,
• Defendant’s assertion of his right,
• Prejudice to the Defendant.

Length of Delay

When arguing the length of delay, it is important to know that the length of delay is measured from the time the Defendant is arrested or formally accused. Gonzales v. State, 435 S.W.3d 801, 809 (Tex. Crim. App. 2014).

Secondly, if the Defendant or Counsel has contributed to the delay, (resets, filing continuances, medical treatment, getting arrested again, missing court) it will not be counted against the State.

Thirdly, things that are out of the control of the State will not be counted against the State. Many attorneys tried arguing that COVID was leading to unlawful delays. However, the Court of Criminal Appeals found that the Speedy Trial clause only applies to things the State can control. No one could have predicted COVID or the impact of it. The same can be said about natural disasters or hurricanes.

Fourthly, the exact number of days causing delay has not been established in Texas. However, Texas courts have recognized that a delay approaching one year to be enough to trigger a Barker analysis. Balderas v. State, 517 S.W.3d 756, 768 (Tex. Crim. App. 2016). As also found in Knox v. State 934 S.W.2d 678 (Tex. Crim. App. 1996).

Lastly, “the State has the burden of justifying the length of the delay.” Cantu v. State, 253 S.W.3d 273 (Tex. Crim. App. 2008). The Defendant should always force the State to defend the delay.

Reason for Delay

This part of your argument will be different for every case, and you should argue things that favor your position, as it relates to your case.

One common argument that I have seen from Operation Lone Star is that the District Attorney’s like to argue and say that they have too many cases or not enough staff. Under, Shaw v. State, 117 S.W.3d 883 (Tex. Crim. App. 2003). The Court held that crowded dockets are not a valid reason and must be counted against the State, but not heavily. This is considered a more neutral reason. Also, in Braker v. Wingo the court held that “unreasonable delay in run-of-the-mill criminal cases cannot be justified by simply asserting that the public resources provided by the State’s criminal justice system are limited and that each case must await its turn.”

Also read:

State v. Conatser, 645 S.W.3d 925 (Tex. App. 2022). The Court held that the State cannot merely make claims without any proof or evidence to show good cause.

Another argument used by prosecutors is something along the lines of “we haven’t made a charging decision yet.” This argument is ridiculous at best because that is what the purpose of Tex. Code Crim. Proc. art. 32.01 and the Sixth Amendment are for, to prevent the State from abusing their discretion and preventing the consequences of their abuse from happening.

The argument should be furthered by emphasizing the point that the Defendant hasn’t contributed to the delay and has no reason to want to delay proceedings further.

Lastly, the Court must know that if they keep the Defendant incarcerated further it would make all protections from the Sixth Amendment, Texas Constitution, Texas statutes, Texas case law, and federal case law meaningless and without any real value.

It is hard to argue in favor of this position once you let the court know that they are contributing to the delay themselves. It’s hard for the State to defend their position when they have been called out in this fashion.

Part II

The second part will be coming soon. It’s just so much to write.

Please note all of this is provided for informational purposes only. I am not an attorney. If you need an attorney, please consult with an attorney. I do not offer legal advice but can refer you to an attorney who might be able to help.

What do you think? Is the Sixth Amendment truly a right that has been forgotten or just not used as much?

Are you an attorney who needs help drafting this kind of Writs and arguments? Do you have an Operation Lone Star case and can’t seem to make the State, or the Court move? Email me today and see what I can do for you [email protected]