AFFIRM; and Opinion Filed August 9, 2013.
Court of Appeals
Fifth District of Texas at Dallas
SAMIR GUPTA, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 4
Collin County, Texas
Trial Court Cause No. 004-81157-2010
Before Justices OâNeill, Francis, and Fillmore
Opinion by Justice Fillmore
A jury convicted Samir Gupta of driving while intoxicated (DWI), and the trial court
assessed punishment at ninety days in jail, suspended for fifteen months, and an $800 fine. In
one issue, Gupta complains the trial court erred by denying his requests that the case be
dismissed due to a violation of his right to a speedy trial. We affirm the trial courtâs judgment.
On November 20, 2009, Gupta and his wife were involved in an argument in the parking
lot of a liquor store. When the police arrived at approximately 11:30 p.m., Gupta was sitting in
the driverâs seat of his car and had blood on his nose, hand, and clothes. Guptaâs wife was
arrested for assault, and Gupta was asked to perform several field sobriety tests. After Gupta
complained of chest pains, he was transported to the hospital by ambulance. At the hospital, a
police officer requested that Gupta consent to have a sample of his blood drawn. Gupta refused,
and the police officer left. The officer returned approximately two hours later and told Gupta
that she was charging him with DWI. She also said that he would receive notice in the mail
within a few weeks stating when he should come to court. The officer did not arrest Gupta, and
he remained in the hospital until the next morning.
On February 10, 2010, the State filed an information charging Gupta with DWI. On
February 18, 2010, a âCapias for Unapprehended Defendantâ was issued for Guptaâs arrest.
Gupta and his wife both checked the mail regularly but, according to Gupta, from
November 2009 until he moved in July 2010, he did not receive notice of the charges. Gupta
notified the post office of his change in address and had his mail forwarded to his new address.
However, according to Gupta, he did not receive notice of the charges at his new address. In
March 2011, Gupta contacted an attorney because he wanted to know the status of the charges.
Guptaâs attorney learned a warrant had been issued for Guptaâs arrest and, on April 12, 2011,
Gupta âturned himself in.â
Guptaâs first appearance in court was set for June 3, 2011. That day, Gupta filed a
motion to dismiss due to a violation of his right to a speedy trial. The trial court heard the
motion on June 23, 2011. The only two witnesses at the hearing were Gupta and Brandi NortonRoberson.
Gupta testified that, due to the passage of time, he only vaguely remembered the incident
that led to his arrest. Gupta testified he could not recall how he got hit, but knows he had a
concussion. Gupta also testified he did not tell the police officer that he had consumed four or
five drinks. He did not recall telling the police officer that he purchased alcohol or being
requested to recite a portion of the alphabet or count down a series of numbers. However, he did
recall being taken in an ambulance to the hospital where he received a number of medical tests.
Gupta also recalled the police officer asking if he would give a blood sample and his refusal to
do so. He recalled the police officer returning to the hospital and telling him that he was being
charged with DWI and that he would receive notice in the mail stating when to appear in court.
Gupta did not recall the police officer reading him the statutory warnings relating to his refusal to
give a blood sample, but recalled that he was not arrested in the hospital.
Gupta also testified that he saw a former neighbor named âJosephâ walking his dog on
the night of November 20, 2009. He believed this former neighbor could testify about his
condition that evening. Gupta did not know Josephâs last name or exact address and believed he
had no ability to locate Joseph based on the limited information available. Finally, Gupta
testified the liquor store had a surveillance camera. However, because the store did not keep the
recordings from the camera for more than thirty days, he could not obtain the recording from
November 20, 2009. According to Gupta, he had been inside the store for âfive minutes or so,â
and the recording could have shown whether he was intoxicated. The State stipulated that the
video recording taken from the police officerâs car was also missing.
Norton-Roberson testified that she works in the county clerkâs office. When the county
clerk receives a case from the district attorney and the defendant has not been arrested, a warrant
is issued and the file is put in âunapprehendedâ status until the defendant either turns himself in
or is arrested. Once the warrant is no longer active, the clerk gives the file to the clerk of the
court to issue a first appearance.
The trial court denied Guptaâs motion to dismiss. On July 5, 2011, Gupta filed a demand
for a speedy trial, and the case was set for trial on September 12, 2011. On September 8, 2011,
Gupta filed an amended motion to dismiss due to a speedy trial violation. Gupta attached to the
amended motion an affidavit from Dr. Joseph Bolin stating he was Guptaâs neighbor on
November 20, 2009. Bolin indicated that Guptaâs attorney had contacted him on August 18,
2011 and asked if he could recall seeing Gupta on November 20, 2009. Bolin stated in the
affidavit that he could not âremember with any specificityâ because it was âjust too long ago.â
On September 9, 2011, the trial court continued the trial to October 24, 2011 and set a
hearing on the amended motion to dismiss for October 20, 2011. At the hearing on the amended
motion, Bolin testified that Gupta and his wife lived next door to Bolin for approximately
eighteen months. Bolin usually walked his dog between 9:00 and 10:00 p.m. Gupta worked late
hours and, every two to three days while walking his dog, Bolin would see Gupta arriving home
from work. Because it had been almost two years, Bolin could not remember whether he saw
Gupta on November 20, 2009. According to Bolin, he might have recalled whether he had seen
Gupta on November 20, 2009 if he had been asked âwithin a week or two.â He could not
remember, however, who he saw two months ago.
Gupta again testified about when the incident occurred, when he learned charges were
filed, and when he surrendered to the authorities. Gupta was not aware of any delays in trying
the case that he had requested. However, he was aware that he filed the amended motion to
dismiss prior to the September trial setting.
Gupta again testified the video recordings from the police car and the liquor store were
missing. The parties stipulated the district attorney requested the video recording from the police
car on February 25, 2010 and that the recording had been lost at that time. Gupta then testified
he had been unable to obtain the video recording from the liquor store because the recordings
were kept for only thirty days. The trial court denied the amended motion to dismiss. Gupta
immediately requested a continuance of the October 24, 2010 trial setting because the hospital
laboratory had not responded to his subpoena for documents.
The trial court granted the continuance, and the case was set for trial on December 12,
2011. The record does not reflect why the case did not go to trial on December 12, but trial
commenced on February 13, 2012. On February 14, 2012, the jury found Gupta guilty of DWI.
The trial court assessed punishment, in accordance with a plea agreement, of ninety days in jail,
suspended for fifteen months, and an $800 fine.
On February 21, 2012, Gupta filed a motion for new trial asserting the verdict was
contrary to the law and the evidence and that the trial court should grant a new trial in the interest
of justice. Gupta filed a memorandum in support of his motion for new trial again asserting a
violation of his right to a speedy trial. At the hearing on the motion for new trial, Guptaâs trial
counsel testified the amended motion to dismiss was not intended to delay the trial of the case.
Rather, the trial was continued because the trial court set another hearing after the amended
motion was filed. Gupta testified that, because he was allowed to leave the hospital, he did not
think that charges would be filed against him.
The trial court denied the motion for new trial. As relevant to this appeal, the trial court
made findings of fact that (1) Gupta was not incarcerated during the pendency of his trial; (2)
Bolin testified that if called one month after the offense, he would not have remembered his
interaction with Gupta on the night of the offense; (3) Gupta contended the video recording from
the liquor store could have been obtained if he had been arrested closer to the offense date and
could have shown he was not intoxicated inside the store; and (4) Gupta suffered no anxiety or
concern regarding a pending criminal charge. The trial court concluded (1) Gupta was not
unduly prejudiced by the delay of his arrest because the evidence he sought to obtain would not
have changed the outcome of his trial, he sought a dismissal of the charges rather than asserting
his right to a speedy trial, and he did not give cogent reasons for his failure to assert his right to
speedy trial prior to seeking a dismissal of the charges, and (2) Guptaâs right to a speedy trial
was not violated.
In one issue, Gupta asserts his right to a speedy trial was violated and, therefore, the trial
court erred by failing to dismiss the case.
Standard of Review
We review the trial courtâs ruling on a speedy trial claim under a bifurcated standard of
review. Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008). We apply an abuse of
discretion standard to the trial courtâs findings of fact, but a de novo standard to the trial courtâs
legal conclusions. Id. Under the abuse of discretion standard, we view all of the evidence in the
light most favorable to the trial courtâs ultimate ruling. Id. We defer not only to a trial court's
resolution of disputed facts, but also to its right to draw reasonable inferences from those facts.
The trial court may completely disregard a witnessâs testimony, based on credibility and
demeanor evaluations, even if that testimony is uncontroverted. Id. The trial court may also
disbelieve any evidence so long as there is a reasonable and articulable basis for doing so. Id.
The Sixth Amendment to the United States Constitution and article one, section ten, of
the Texas Constitution guarantee an accused the right to a speedy trial. U.S. CONST. amend. VI;
TEX. CONST. art. 1, Â§ 10; Cantu, 253 S.W.3d at 280 & n.16. Whether raised under the federal or
state constitution, we analyze speedy trial claims on an ad hoc basis by weighing and then
balancing four factors: (1) length of the delay; (2) reason for the delay; (3) assertion of the right;
and (4) prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 530 (1972); Zamorano v. State,
84 S.W.3d 643, 648 (Tex. Crim. App. 2002). No single factor is necessary or sufficient to
establish a violation. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003); see also Ex
parte Perez, 398 S.W.3d 206, 217 (Tex. Crim. App. 2013). Rather, courts must âengage in a
difficult and sensitive balancing processâ that takes into account the partiesâ overall conduct.
Zamorano, 84 S.W.3d at 648; see also Ex parte Perez, 398 S.W.3d at 217. The factors are
related, and we apply them âwith common sense and sensitivity to ensure that charges are
dismissed only when the evidence shows that a defendantâs actual and asserted interest in a
speedy trial has been infringed.â Cantu, 253 S.W.3d at 281. Review of the individual factors
necessarily involves fact determinations and legal conclusions, but the balancing test as a whole
is a purely legal question. Id. at 282.
While the State has the burden of justifying the length of delay, the defendant has the
burden of proving the assertion of the right and showing prejudice. Id. at 280. However, the
defendantâs burden of proving a speedy-trial violation varies inversely with the Stateâs degree of
culpability and the length of the delay. Ex parte Perez, 398 S.W.3d at 217 (citing Cantu, 253
S.W.3d at 280). âThus, the greater the Stateâs 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.â Cantu, 253 S.W.3d at 280â81.
Length of Delay
The length of delay is the triggering mechanism for an analysis of the remaining three
Barker factors and is measured from the date the defendant is arrested or formally accused.
Barker, 407 U.S. at 530; Cantu, 253 S.W.3d at 280; see also Doggett v. United States, 505 U.S.
647, 652 n.1 (1992) (test is triggered by delay that is âpresumptively prejudicialâ). Depending
on the nature of the charges, a post-accusation delay of about one year is presumptively
prejudicial for purposes of the length-of-delay factor. Doggett, 505 U.S. at 652 n.1; see also
Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). Here, Gupta was formally charged
with DWI on February 10, 2010. He filed his motion to dismiss based on a speedy trial violation
on June 3, 2011. The State concedes the sixteen-month delay is sufficient to trigger a speedy
Once the defendant has crossed the threshold of showing a presumptively prejudicial
delay, we must consider the length of the delay beyond the triggering point because âthe
presumption that pretrial delay has prejudiced the accused intensifies over time.â Zamorano, 84
S.W.3d at 649 (quoting Doggett, 505 U.S. at 652); see also Shaw, 117 S.W.3d at 889 (time
period that stretches well beyond bare minimum needed to trigger examination of speedy trial
claim weighs heavily against State). Here, although this factor weighs in favor of Gupta, we
note that the delay did not greatly exceed the minimum period needed to trigger an examination
of Guptaâs speedy trial claim.
Reason for Delay
Once it is determined that a presumptively prejudicial delay has occurred, the State bears
the burden of justifying the delay. Cantu, 253 S.W.3d at 280â81. When assigning weight to the
reasons for delay given by the State, different reasons deserve different weights. Barker, 407
U.S. at 531; Shaw, 117 S.W.3d at 889. Intentional prosecutorial delay is weighed heavily against
the State, while more âneutralâ reasons, such as negligence or overcrowded dockets, are weighed
less heavily against it. Zamorano, 84 S.W.3d at 649 (quoting Barker, 407 U.S. at 531). âIn the
absence of an assigned reason for the delay, a court may presume neither a deliberate attempt on
the part of the State to prejudice the defense nor a valid reason for the delay.â Dragoo, 96
S.W.3d at 314.
The State concedes it was negligent in failing to serve the warrant on Gupta. Gupta
argues the State was âindifferent,â a more âunacceptableâ reason for the delay than negligence.
Regardless of whether the State was negligent or indifferent, the delay in serving the warrant is
attributable to the State. See State v. Jones, 168 S.W.3d 339, 347â48 (Tex. App.âDallas 2005,
pet. refâd). However, there is no evidence of deliberate conduct by the State to delay the trial.
Accordingly, although this factor weighs in favor of finding a speedy trial violation, it does not
do so heavily. See Dragoo, 96 S.W.3d at 314; Barringer v. State, 399 S.W.3d 593, 600 (Tex.
App.âEastland 2013, no pet.).
Assertion of Right
Although it is the Stateâs duty to bring the defendant to trial, âa defendant does have the
responsibility to assert his right to a speedy trial.â Cantu, 253 S.W.3d at 282. When a defendant
is unaware of the charge or the warrant, we consider whether and how the defendant asserted his
speedy trial right once he became aware. See Doggett, 505 U.S. at 653â54; Barringer, 399
S.W.3d at 601; see also Cantu, 253 S.W.3d at 282â83 (âWhether and how a defendant asserts
this right is closely related to the other three factors because the strength of his efforts will be
shaped by them.â). The âdefendantâs 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.â Cantu, 253 S.W.3d at 283.
A request that the trial court dismiss the charges based on a speedy trial violation, rather
than a request for a prompt trial setting, weakens the strength of a speedy trial claim because it
indicates a âdesire to have no trial instead of a speedy one.â Id. âIf a defendant fails to first seek
a speedy trial before seeking dismissal of the charges, he should provide cogent reasons for this
failure.â Id. âRepeated 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.â Id.
Without making a demand for a speedy trial, Gupta filed a motion to dismiss on the day
of his first appearance. After the trial court denied the motion, Gupta filed a demand for a
speedy trial and received a trial setting. Four days before trial was scheduled to begin, Gupta
filed an amended motion for speedy trial, attaching Bolinâs affidavit. Guptaâs counsel testified at
the motion for new trial hearing that he did not intend to delay the trial by filing the amended
motion. However, Guptaâs counsel did not explain how the trial court could rule on the amended
motion relying on new evidence from Bolin without Bolin testifying and being subject to crossexamination. After the amended motion was denied and the case was set for trial, Gupta
immediately sought a continuance of the new trial setting. Finally, after he was convicted, Gupta
again requested, through his motion for new trial, that the charge against him be dismissed based
on a speedy trial violation.
The record reflects that, rather than a speedy trial, Gupta wanted no trial. Accordingly,
this factor weighs against Gupta. See id. at 283â84; Prihoda v. State, 352 S.W.3d 796, 805 (Tex.
App.âSan Antonio 2011, pet. refâd) (filing of motion to dismiss three years after arrest and on
the day trial was to commence weighed heavily against defendant).
We assess any possible prejudice to the defendant in light of the defendantâs interests that
the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2)
to minimize the accusedâs anxiety and concern; and (3) to limit the possibility that the accusedâs
defense will be impaired. Barker, 407 U.S. at 532; Cantu, 253 S.W.3d at 280. Of these factors,
âthe most serious is the last, because the inability of a defendant adequately to prepare his case
skews the fairness of the entire system.â Barker, 407 U.S. at 532; see also Cantu, 253 S.W.3d at
285; Dragoo, 96 S.W.3d at 315. Although the defendant need not show actual prejudice, he has
the burden to show that some prejudice was caused by the delay. State v. Munoz, 991 S.W.2d
818, 826 (Tex. Crim. App. 1999); Jones, 168 S.W.3d at 349 (citing Harris v. State, 489 S.W.2d
303, 308 (Tex. Crim. App. 1973)). The burden then shifts to the State to show the defendant did
not suffer serious prejudice beyond that which would normally result from ordinary delay.
Munoz, 991 S.W.2d at 826.
The possibility of oppressive pretrial incarceration is not involved in this case because
Gupta was not in jail pending trial. Further, Gupta has not claimed he suffered any anxiety or
concern due to the delay. Accordingly, the first two interests protected by the right to a speedy
trial are not factors in our analysis. See Jones, 168 S.W.3d at 349. Therefore, we consider only
whether Guptaâs defense was prejudiced due to the delay. The trial court concluded Gupta was
not unduly prejudiced by the delay because he failed to show the evidence sought would have
impacted the outcome of this case.
Gupta first contends his defense was impaired due his inability to locate witnesses. To
make a showing of some prejudice due to missing witnesses, a defendant is required to show the
witnesses were unavailable, their testimony might be material and relevant to the case, and that
he has exercised due diligence in attempting to locate the witnesses and produce them for trial.
Phipps v. State, 630 SW.2d 942, 946â47 (Tex. Crim. App. [Panel Op.] 1982); see also Ex parte
Perez, 398 S.W.3d at 212 n.7 (to establish particularized prejudice due to a missing witness,
defendant is required to show more than the fact the Stateâs delay caused witnesses to be
missing; rather, defendant must also show the materiality of the missing testimony and establish
how the absence of such testimony would impact his defense). In this case, the only missing
witness specifically identified by Gupta at the initial hearing on the motion to dismiss was
âJoseph,â a former neighbor who Gupta believed had seen him on November 20, 2009.
According to Gupta, he had no possibility of locating Joseph based on the available information.
However, Gupta offered no evidence that he attempted to locate Joseph before filing the motion
to dismiss. See Phipps, 630 S.W.2d at 947.
Prior to the September 12, 2011 trial setting, Gupta filed an amended motion to dismiss
with an affidavit from Bolin. At the hearing on the amended motion to dismiss, Bolin testified
that, when Gupta lived next door to him, he would see Gupta every two or three days between
9:00 and 10:00 p.m. Even if Bolin had seen Gupta on the evening of November 20, 2009, Gupta
failed to establish how Bolinâs observations of Guptaâs condition between 9:00 and 10:00 p.m.
was relevant to whether Gupta was intoxicated hours later. Further, Bolin testified that, within a
matter of weeks of November 20, 2009, he would not have been able to recall if he had seen
Gupta on that day. Accordingly, even if Bolinâs testimony was material and relevant to the case,
Gupta failed to establish that evidence was lost due to the Stateâs delay.
Gupta next asserts he was prejudiced by the delay because his recollection of the events
on November 20, 2009 was vague due to the passage of time. Gupta specifically argues that his
inability to remember either statements he made to the police or cognitive ability tests he
performed impaired his ability to cross-examine the Stateâs witnesses.
recollection of a number of events on the night of November 20, 2009 was clear, possibly
throwing doubt on his claimed inability to recall other events. Further, he testified he suffered a
concussion that evening, providing an alternative explanation for his memory loss. It was the
trial courtâs role to resolve issues relating to Guptaâs credibility as to the events he testified he
could not recall and why he could not recall them. We must defer to that determination. See
Jones, 163 S.W.3d at 352 (trial court, as fact finder, makes credibility choice as to defendantâs
testimony about impaired memory). We conclude the trial court could have reasonably found
that Gupta was not prejudiced by his failure to recall some of the events of November 20, 2009.
See Munoz, 991 S.W.2d at 829 (defendant must show âlapses of memoryâ are in some way
âsignificant to the outcomeâ of case); Jones, 168 S.W.3d at 352 (defendantâs âself-serving
testimonyâ about impaired memory does not establish âsome showing of prejudiceâ).
Gupta finally contends he was prejudiced by his inability to obtain the video recordings
from the police car and the liquor store. However, Gupta did not attempt to obtain either of these
recordings before June 2011. The video recording from the liquor store was kept for only thirty
days following November 20, 2009. Further, the parties stipulated that the video recording from
the police car was lost by February 25, 2010. Therefore, the delay by the State in serving the
warrant was not the cause of the loss of this evidence.
On this record, we cannot conclude Gupta established more than minimal prejudice from
the delay. See Munoz, 991 S.W.2d at 829. Accordingly, this factor weighs in favor of the State.
See Prihoda, 352 S.W.3d at 805.
Balancing the Four Factors
When we balance the Barker factors, we conclude they weigh against finding a violation
of Guptaâs right to a speedy trial. The approximately sixteen-month delay in this case and the
reason for the delay weigh slightly in favor of finding a violation. However, these factors are
outweighed by the two remaining factors. Guptaâs conduct indicated that, rather than a speedy
trial, he wanted no trial at all. Further, he failed to establish prejudice from the delay. Having
reviewed the four factors, we conclude the trial court did not err by denying Guptaâs requests the
case be dismissed due to a speedy trial violation.
We resolve Guptaâs sole issue against him and affirm the trial courtâs judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
Do Not Publish
TEX. R. APP. P. 47
Court of Appeals
Fifth District of Texas at Dallas
SAMIR GUPTA, Appellant
On Appeal from the County Court at Law
No. 4, Collin County, Texas,
Trial Court Cause No. 004-81157-2010.
Opinion delivered by Justice Fillmore,
Justices OâNeill and Francis participating.
THE STATE OF TEXAS, Appellee
Based on the Courtâs opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 9th day of August, 2013.
/Robert M. Fillmore/
ROBERT M. FILLMORE