Realities of the Right to a Speedy Trial in Texas

The right to a speedy trial in Texas

The Right to a Speedy Trial in Texas

The government — not the defendant — bears the burden of bringing cases to trial, but how long must a defendant wait for his or her day in court? The answer is not clear cut.

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  “speedy.” That means once a person is accused — either by being arrested or charged — he or she 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 defendant.

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 or her right to a speedy trial. However, since the sole remedy is a dismissal, courts are hesitant in finding a deprivation of the right to a speedy trial. This means defendants may bear a heavy burden when claiming they have been denied their constitutional right to a speedy trial in Texas.

When has the right to a speedy trial been violated?

A defendant’s right to a speedy trial is violated when there has been an unjustified delay between the accusation and trial which 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.

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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:

  1. Whether the length of the delay was uncommonly long;
  2. Whether the reason for the delay was justified;
  3. Whether the accused asserted his right; and
  4. 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 attributed to the defendant, thus weighing against him. Kelly v. State, 163 S.W.3d 722 (Tex. Crim. App. 2005). However, when 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).


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 in Texas. 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 Murder13 months
State v. Greenlee, 2007 WL 2460045 (Tex. App. Tyler Aug. 31, 2007, pet refÕd).Misdemeanor possession13 months
Deeb v. State, 815 S.W.2d 692 (Tex. Crim. App. 1991)Conspiracy to commit capital murder15 months
Kelly v. State, 163 S.W.3d 722 (Tex. Crim. App. 2005)Simple drug possession17 months
Bryan v. State, 2007 WL 1133216 (Tex. App. San Antonio Apr. 18, 2007, no pet.)Possession of drug paraphernalia18 months
Webb v. State, 36 S.W.3d 164 (Tex. App. Houston [14th Dist.] 2000, pet refÕd)Aggravated sexual assault20 months
Mendez v. State, 212 S.W.3d 382 (Tex. App. Austin 2006, pet. ref'd)Aggravated assault23 months
Ortega v. State, 2015 WL 4594113 (Tex. App. Houston [14th Dist.] July 30, 2015)Possession of gambling deviceMore than 27 months
Massey v. State, 2004 WL 2307418 (Tx. App. Houston [1st Dist.] Oct. 14, 2004, no pet.)Aggravated robbery28 months
Phillips v. State, 2004 WL 299279 (Tex. App. Texarkana Feb. 18, 2004, no pet.)Assault (of corrections officer)28 months
Adkins v. State, 2003 WL 1524138 (Tex. App. Fort Worth Mar. 24, 2003, pet. ref'd)Possession with intent to deliver32 months
State v. Smith, 76 S.W.3d 541 (Tex. App. Houston [14th Dist.] 2002, pet. ref'd)Burglary and attempted aggravated assaultOver 3 years
Harlan v. State, 975 S.W.2d 387 (Tex. App. Tyler 1998, pet. ref'd)DWI4 years and 5 months
Ex parte Beech, 591 S.W.2d 502 (Tex. Crim. App. 1979)Speeding8 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 child6 years
State v. Wei, 447 S.W.3d 549, 554 (Tex. App.ÑHouston [14th Dist.] 2014).DWI4 years and 3 months
Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002).DWI4 years
Chapman v. Evans, 744 S.W.2d 133 (Tex. Crim. App. 1998).Delivery of controlled substance2 years and 6 months
Turner v. State, 545 S.W.2d 133 (Tex Crim. App. 1976).Felony Theft2 years and 3 months


Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese