Here is a scenario I'm facing right now:

My county originally had one County Court at Law. In 2002, Defendant was charged with two misdemeanors, complaints and informations timely filed by the prosecutor at the time. Defense attorney sent a rep letter in a timely manner. The rep letter that was sent in July 2002 was your standard "please notify me of any court settings" letter. The case was never set on any docket. Our county then created another County Court at Law, which took over the criminal dockets. All criminal cases were then transferred to County Court at Law #2, which is the court I am currently working in.

In 2002 (and also currently), the court's coordinator sets the dockets. A prosecutor of defense attorney can obviously request a setting at any time, but as far as setting which cases are heard when on normal appearance dockets, the court coordinator creates these and gives the notice.

In other words, due to the way our system is set up, I think this is ultimately the court's fault that this case was never set on a docket date.

Now the defense attorney has filed Motions to Dismiss in these two cases based on prejudice to the defendant. Now, these are just Motions to Dismiss. No request for speedy trial was ever made by defendant (until today in court when the defense attorney realized he should have already done that). My position is that the State has always been ready for trial, in 2002 up until this date (miraculously I can still locate my Trooper), and that Defendant should have asserted his right to a speedy trial much sooner if the prejudice and harm was that great.

My Judge is going to investigate exactly why these weren't set by speaking with the other County Court at Law Judge (to see if these cases "fell between the cracks"). I've looked for caselaw and have found some with similar facts, but haven't found anything truly on point with this situation.

So my question is: Who is at fault? I've found the Barger 4 factors the court needs to examine, but under that logic it almost seems as if the defense has a good case for dismissal.

It's just hard for me to accept the fact that, if you hide out or if your attorney doesn't do his job and doesn't set the case for a period of time, the case gets dismissed.

We have a number of these cases before our court right now (with basically the same circumstances), so I'd appreciate any advice or direction.

The Defendant's Assertion of His Right. Although a defendant's failure to assert his speedy trial right does not amount to a waiver of that right, �failure to assert the right ��� make[s] it difficult for a defendant to prove he was denied a speedy trial.� Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. 2182. This is so because a defendant's lack of a timely demand for a speedy trial �indicates strongly that he did not really want a speedy trial,� Harris v. State, 827 S.W.2d 949, 957 (Tex.Crim.App.), cert. denied,506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992), and that he was not prejudiced by lack of one. Furthermore, �[t]he longer delay becomes, the more likely a defendant who wished a speedy trial would be to take some action to obtain it. Thus inaction weighs more heavily against a violation the longer the delay becomes.� G. Dix & R. Dawson, Texas Criminal Practice and Procedure � 23.40 (2d ed.2001).

Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).


As for the "reason for delay:"
A deliberate attempt to delay the trial is weighed heavily against the government, whereas a �more neutral reason such as negligence or overcrowded courts should be weighed [against the government] less heavily.� Munoz, 991 S.W.2d at 822; McCoy, 94 S.W.3d at 302; see also Padilla v. State, 2003 WL 21401256 (Tex.App.-Austin June 19, 2003) (not designated for publication) ("The delay appears to have been the result of official negligence. For some reason, the capias was not entered into, or was deleted from, the computerized system by which law enforcement authorities track outstanding warrants.").

The Dallas Court of Appeals just issued an opinion Friday with a similar situation, where the judge admitted there was a failure of his court coordinator to get the case set after it was filed. (And the defense attorney never did anything because, apparently, he couldn't find his client's file!) Dallas ended up ruling this was a neutral reason for delay and didn't weigh against the State.

The opinion is Traylor v. State.