Fort Worth 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.
Under the Barker balancing test, there are four factors that the court assesses:. Barker v. Wingo , U. 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. 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. 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. 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. 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. However, when there is a deliberate attempt to delay trial to hamper the defense, this factor would weigh heavily against the state. Starks v. El Paso Common neutral events— such as overcrowded dockets — weigh less heavily against the state.
A it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19 , or Section B the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth;.
A while the person or employee is engaged in performing a service within the scope of the contract, if the actor knows the person or employee is authorized by government to provide the service; or. B in retaliation for or on account of the person's or employee's performance of a service within the scope of the contract;. A an officer or employee of the Texas Civil Commitment Office:.
B a person who contracts with the state to perform a service in a civil commitment facility or an employee of that person:. A while the participant is performing duties or responsibilities in the participant's capacity as a sports participant; or. B in retaliation for or on account of the participant's performance of a duty or responsibility within the participant's capacity as a sports participant; or. Acts , 63rd Leg. Amended by Acts , 65th Leg.
July 22, ; Acts , 66th Leg. Acts , 79th Leg. September 1, Acts , 80th Leg. Acts , 81st Leg. Acts , 83rd Leg. Acts , 85th Leg. Acts , 86th Leg. Acts , 87th Leg.
A causes the penetration of the anus or sexual organ of another person by any means, without that person's consent;. B causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or. C causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or.
A causes the penetration of the anus or sexual organ of a child by any means;. B causes the penetration of the mouth of a child by the sexual organ of the actor;.
C causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;. D causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or.
E causes the mouth of a child to contact the anus or sexual organ of another person, including the actor. B a chiropractor licensed under Chapter , Occupations Code;. Amended by Acts , 60th Leg. The counsel of the defendant has the right to open and conclude the argument upon all pleadings of the defendant presented for the decision of the judge.
When the matters involved in any written pleading depend in whole or in part upon testimony, and not altogether upon the record of the court, every process known to the law may be obtained on behalf of either party to procure such testimony; but there shall be no delay on account of the want of the testimony, unless it be shown to the satisfaction of the court that all the means given by the law have been used to procure the same.
If the motion to set aside or the exception to an indictment or information is sustained, the defendant in a misdemeanor case shall be discharged, but may be again prosecuted within the time allowed by law. If the motion to set aside or the exception to the indictment in cases of felony be sustained, the defendant shall not therefor be discharged, but may immediately be recommitted by order of the court, upon motion of the State's attorney or without motion; and proceedings may afterward be had against him as if no prosecution had ever been commenced.
Where, after the motion or exception is sustained, it is made known to the court by sufficient testimony that the offense of which the defendant is accused will be barred by limitation before another indictment can be presented, he shall be fully discharged. If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant.
A discharge under this article is a bar to any further prosecution for the offense discharged and for any other offense arising out of the same transaction, other than an offense of a higher grade that the attorney representing the state and prosecuting the offense that was discharged does not have the primary duty to prosecute. Acts , 65th Leg. July 1,
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