A defendant is from another state but he is in Texas working temporarily. He is questioned by the police about a crime but not arrested. After his indictment, his warrant is entered into TCIC only. The defendant by this time has returned to his home state. Since the defendant is not living in Texas, he is not arrested on the TCIC warrant. Three years later the warrant is entered into NCIC and the defendant is arrested soon thereafter.

Question is the fact the defendant left the state of Texas a neutral reason for the delay meeting the second factor of Barker v. Wingo.

I'll give you a rousing "it depends". If a defendant is aware he is a suspect and flees the jurisdiction, then that's considered his fault for the delay. But it sounds like your defendant didn't actually flee, he was just questioned, released, and went back home. You're going to need to develop some facts at the hearing if you want to justify it. The more testimony you can get out about your officers' actions, the better off you'll be.

First, was the defendant's location in the other state known? If so, what was done to track him down there? Even just entering a warrant on NCIC isn't considered enough diligence if you don't do anything else, so I'd certainly think just entering one on TCIC when you know the defendant's out of state wouldn't be very diligent. Did your officers try to contact local law enforcement to serve the warrant?

If the defendant's location wasn't known, what did your officers do other than just putting the warrant on TCIC? Did they go to his last-known address or contact his employer to find out where he might have been? Did they do a DL search, check with utility companies, or any alternative methods to track him down?

If you want to go by the fleeing, the more facts you can put out, the better. You just said the defendant was questioned, but how serious was it? Was it pretty clear that he was a suspect and would need to stay in the state? If so, you can make a lot more out of his leaving. Was he living under his own name? Was his home and utilities in his name, or was he, say, living with a girlfriend and having everything in her name so he couldn't be tracked down?

Your situation raises a good lesson on why it might be best in many cases not to indict the defendant until you have made an arrest.

You can certainly argue that most of the Barker v. Wingo rationales would not apply in his case. There was no oppressive pretrial incarceration, he never requested that he be brought back to Texas for trial (assertion of the right), and whether the reason for the delay is laid at the feet of the prosecution, the court, or merely the State, the delay was unintentional, so should be weighed lightly.

I would think the defendant would have to assert some sort of prejudice resulting from the delay before he would be entitled to a dismissal.

You might look to see whether the defense is really ready for trial right now, too. If you ca provide an immediate trial setting, and he claims not to be ready for trial, then you have an argument that his speedy trial right is waived.

Your strongest weight goes to his failure to assert the right. If he never requested a trial this whole time, he can't really argue that the state should have known he was ready and willing to try the case. He will undoubtedly argue that he never knew the case was pending, but that will also weigh against him in the pre-trial anxiety portion of the scale.

Thank you. He has decided to plea.