Texas Stamp


PD-1291-18 03/20/2019

1. “The court of appeals erred by concluding that a 112 day delay was presumptively prejudicial based on potential delay that had not yet occurred and by weighing the first Barker factor against the State.”

2. “The court of appeals erred by concluding that the State was responsible for the delay and by weighing the second Barker factor against the State.”

3. “The court of appeals erred by weighing the third Barker factor against the State without any evidence that Lopez asserted his right to a speedy trial.”

Lopez was charged with felony assault, and the trial court granted his attorney’s request for a competency evaluation. When he appeared for trial shortly thereafter but had not yet been examined, counsel made an oral motion to dismiss on speedy trial grounds.  Though the State objected based on the failure to hold a competency hearing, the trial court granted the dismissal, stating that Lopez had been in custody for 112 days and cannot be tried.

The State appealed, arguing that the trial court should have held a competency hearing and that he had only been in custody four months before he moved for the dismissal. The court of appeals affirmed.  The trial court, it stated, was also allowed to consider the offense and applicable punishment, the time needed for a competency hearing, and additional pretrial confinement. It observed that the facts underlying the offense are not complex and that the maximum jail-term was one year. Here, Lopez could not make bail and had already spent the equivalent of a year in jail if he was given “two for one.” Given the facts, the delay was presumptively prejudicial. Considering the remaining Barker factors, the court held that the length of delay weights slightly against the State. As for the reason, the court weighed the time before the competency examination order against the State.  The State was negligent for filing the case as a felony only to reduce it three months later to a misdemeanor and keeping Lopez in jail.  The court determined that Lopez made a tactical decision by seeking a dismissal instead of a lesser remedy.  Finally, the court held Lopez was prejudiced because he already served 112 days and suffered from mental health issues.

The State argues that there is no precedent that supports triggering a speedy trial analysis at four months (or 112 days). Further, it contends that it is pure speculation that Lopez is incompetent and would have remained confined.  The State also argues that it was not negligent in filing the case as a felony.  The only evidence in the record about the lack of bodily injury to the victim (or insufficient evidence for felony assault) was defense counsel’s unsubstantiated statement. Regardless, the exercise of prosecutorial discretion in reducing the charge should not be treated as negligence.  Lastly, the State argues there is no support for finding that defense counsel was justified in seeking a dismissal before requesting a trial.

Contact Us

Mailing Address

P. O. Box 13046
Austin, Texas 78711-3046

Physical Address

209 W. 14th Street
Austin, Texas 78701


(512) 463-1660


(512) 463-5724