o p i n i o nAppellant Stephanie Stone pleaded guilty to driving while intoxicated, but reserved her right to appeal the trial court’s denial of a speedy trial motion to dismiss. We conclude that her speedy trial claim is not well taken and we affirm the trial court below.BACKGROUNDThis case arises out of a traffic accident on Austin’s Ben White Boulevard on March 27, 2015.[1] Appellant rear-ended another vehicle, thereby injuring the driver of the other car. A responding police officer believed that Appellant was intoxicated and arrested her for misdemeanor driving while intoxicated. She was released the next day on a personal bond. The criminal repercussions of the accident wound its way through three different courts, the course of which we describe in more detail.County Court Number ThreeOn April 15, 2015, the Travis County Attorney’s Office filed an information formally charging Appellant with the misdemeanor offence of driving while intoxicated. The case landed in Travis County Court at Law Number Three. A docket sheet reflects five settings for pretrial conferences, the last on August 13, 2015. At that conference, Appellant’s retained counsel attempted to withdraw, citing lack of communication and payment. The court denied the motion to withdraw, based on a fee payment made that morning. On September 16, 2015, however, the trial court granted a second motion to withdraw, citing the substitution of Appellant’s present counsel.The case was first set, but not reached for trial on January 13, 2016. On or before the trial setting, Appellant’s counsel had pursued discovery, filed a motion to suppress, and filed a notice invoking her speedy trial rights under the United States and Texas Constitutions. The County Attorney’s office was also prepared to try the case, and had subpoenaed several witnesses, including the victim driver of the other car. When the prosecutor spoke to the victim on the day of trial setting, he learned that even though the victim had been treated and released from the hospital on the date of the accident, she was later readmitted for memory and vision problems, as well as seizures. The victim spent six days in an ICU, and was diagnosed with SIADH (“syndrome of inappropriate antidiuretic hormone”). The syndrome is characterized by excessive release of a hormone that regulates fluid levels in the body. The County Attorney’s office then subpoenaed the medical records from the hospital. By February 18, 2016, the County Attorney received the first set of those records.The case had been reset for trial on March 30, 2016. The State filed a motion to continue that setting based on an unavailable witness, which the trial court granted. On the same date as the trial, the responsible Assistant County Attorney forwarded the medical records to the District Attorney’s Office to see if the case qualified for felony prosecution based on the victim’s bodily injury claim. On April 12, 2016, the case was transferred from County Court at Law Number Three, to the newly opened County Court at Law Nine. Act of June 14, 2013, 83rd Leg., R.S., ch. 1059 § 2.06(a), 2013 Tex.Gen.Laws 2525, 2532 (codified at Tex.Gov’t Code Ann. § 25.2291. (West Supp. 2017)(creating the court effective September 1, 2015).County Court Number NineIn County Court at Law Nine, the case was first set for trial on June 20, 2016. On the day of trial, Appellant filed her Second Written Invocation of Speedy Trial Right(s). When the case was called, Appellant requested either trial or dismissal of the case. The case not reached as the court tried an older case on that date. The trial court denied the motion to dismiss.Behind the scenes, the County Attorney’s office was urging that the District Attorney’s office take the case as a felony. On June 21, 2016, the felony intake prosecutor for the grand jury declined to pursue the matter because he did not feel the State could connect the SIADH to the head injury from the collision. The responsible Assistant County Attorney went to the intake attorney’s supervisor. The supervisor agreed that the case met the serious bodily injury element for a felony, but asked for additional documentation from the victim’s doctor connecting the subsequent hospital admissions and SAIDH with the collision and head injury. The County Attorney’s office requested the information on June 22, 2016, which was received on July 12, 2016.The case had been reset for trial on July 13, 2016. On that date, Appellant filed a “Third Written Invocation of Speedy Trial Right(s)” and announced ready for trial. The prosecuting attorney, however, informed the court that the case was being presented to the grand jury as a felony intoxication assault. Based on the possible grand jury indictment, the judge would have declined to proceed with the case. But in any event, an older case was reached on that day.403rd District CourtThe grand jury in fact returned an indictment on September 6, 2016 for the felony offense of intoxication assault (operating a motor vehicle in a public place while intoxicated, and because of that intoxication, causing serious bodily injury to another). The case was assigned to the 403rd District Court. On September 22, 2016, County Court at Law Nine also transferred its case to the 403rd. Appellant filed a Motion to Dismiss for Want of a Speedy Trial on September 26, 2016.The 403rd trial judge viewed the factual matters in the motion to dismiss as uncontested.[2]The disputed legal issue was this: Appellant contended that the clock for the speedy trial analysis started with her initial arrest on the DWI charge because the DWI case is the “same case” as the intoxication assault for speedy trial purposes. Appellant supported that claim in part based on various filings referring to both charges as a single case. She also noted that DWI is a lesser included offense of intoxication assault. Had the DWI charge actually gone to trial, Appellant claimed that double jeopardy would have prevented any subsequent charge for intoxication assault. See Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977)(” Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”). Conversely, the State contended that the intoxication assault charge contains a new and distinct element, and thus the clock runs from the grand jury indictment for that charge.The judge agreed that DWI is a lesser included offense of intoxication assault, but reasoned that they are “separate offenses and they constitute separate cases” for speedy trial purposes. Thus the measure of any delay on the intoxication assault was between the date of indictment for that offense (September 6, 2016) and the date of trial in the 403rd (November 10, 2016) which did not implicate any speedy trial concerns. The trial court accordingly denied the motion to dismiss.At a November 10, 2016 trial setting, Appellant pleaded guilty to the lesser included DWI charge, and received a 180-day sentence, which was suspended in favor of two years of community supervision, payment of restitution, counseling, required use of an interlock device, and an apology letter to the victim. Appellant retained her right to appeal matters raised and ruled on by written motion.APPLICABLE LAW AND STANDARD OF REVIEWThe Sixth Amendment protects the right to a speedy trial and the Fourteenth Amendment requires the States to respect that right. U.S. Const. amend. VI; Henson v. State, 407 S.W.3d 764, 766 (Tex.Crim.App. 2013); see also U.S. Const. amend. XIV; Klopfer v. North Carolina, 386 U.S. 213, 222-26, 87 S.Ct. 988, 993-95, 18 L.Ed.2d 1 (1967) (noting that Sixth Amendment right to speedy trial applies to states by incorporation under Due Process Clause of Fourteenth Amendment).[3] The right protects a defendant from “oppressive pretrial incarceration, mitigates the anxiety and concern accompanying public accusations, and ensures that the defendant can mount a defense.” Henson, 407 S.W.3d at 766, citing Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)..The right to a speedy trial attaches when a person “becomes an accused,” i.e., when he is arrested or when he is charged. Henson, 407 S.W.3d at 767. Accordingly, a person who has not yet been arrested or formally charged cannot seek protection from the Speedy Trial Clause, and the State is not required “to discover, investigate, and accuse any person within any particular period of time.” U.S. v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). Rather, “[a]ny delay between commission of the crime and indictment is controlled by the applicable statute of limitations.” Kroll v. United States, 433 F.2d 1282, 1286 (5th Cir. 1970); see also Marion, 404 U.S. at 322; 92 S.Ct. at 464 (statute of limitations is “the primary guarantee against bringing overly stale criminal charges”)(internal quotations omitted); Moore v. State, 943 S.W.2d 127, 128 (Tex.App.–Austin 1997, pet. ref d)(“The limit on preindictment delay is usually set by the statute of limitations.”).A speedy trial claim balances four factors: (1) the length of delay; (2) the reason for the delay; (3) whether the defendant asserted the right to a speedy trial; and (4) any prejudice to the defendant resulting from the delay. Gonzales v. State, 435 S.W.3d 801, 808 (Tex.Crim.App. 2014), citing Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2182. The first factor, however, is something of a double factor. Before we balance all the factors, the accused is required to make a threshold showing that the length of the delay was “presumptively prejudicial.” See Gonzales, 435 S.W.3d at 808. The length of the delay is therefore a “triggering mechanism” for analysis of the remaining Barker factors. Id. at 809; see also State v. Munoz, 991 S.W.2d 818, 821-22 (Tex.Crim.App. 1999), quoting Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).When all the Barker factors are considered, no factor is either a necessary or sufficient condition to the finding of a deprivation of a right to speedy trial. Johnson v. State, 954 S.W.2d 770, 772 (Tex.Crim.App. 1997), citing Barker, 407 U.S. at 533, 92 S.Ct. at 2193. Instead, these factors are related and must be considered together with such other circumstances that may be relevant. Johnson, 954 S.W.2d at 773. This balancing test requires weighing, case-by-case, “the conduct of both the prosecution and the defendant.” State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999)(en banc), quoting Barker, 407 U.S. at 530, 92 S.Ct. at 2192.We apply a bifurcated standard of review to speedy-trial claims. Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). Specifically, we review the trial court’s decision under “an abuse of discretion standard for the factual components, and a de novo standard for the legal components.” Id.; Palacios v. State, 225 S.W.3d 162, 167 (Tex.App.–El Paso 2005, pet. ref’d). When the facts are largely undisputed, as they are here, the primary issue for review is the legal significance of those facts. Stock v. State, 214 S.W.3d 761, 764 (Tex.App.–Austin 2007, no pet.). We will uphold the trial court’s ruling if it is supported by the record and correct under the law. Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim.App. 2003).DISCUSSIONAs below, the parties dispute whether there is a delay sufficient to raise a presumption of prejudice, which in turn would require an examination of all the Barker v. Wingo factors. Whether there is a sufficient delay turns on when the speedy trial clock begins to run. Appellant’s first issue contends that the arrest for DWI began the clock, resulting in a nineteen-month delay between when she was accused, and when she was to be tried. A delay of that length implicates all the Barker v. Wingo factors. Her second issue then contends that the balance of those factors weighs in her favor. Conversely, the State claims she was first accused of Intoxication Assault on September 6, 2016, when the grand jury indicted her for that crime, leaving just a two-month delay between accusation and trial.When Does the Clock Begin to Run?Appellant was arrested for DWI on March 27, 2016. She was officially charged with Intoxication Assault on September 6, 2016. The elements of DWI are included within, but not sufficient to obtain a conviction for Intoxication Assault. Cf. Tex.Penal Code Ann. § 49.07(a)(1)(West 2011)(Intoxication Assault) with Tex.Penal Code Ann. § 49.04(a)(West Supp. 2017)(DWI); Killian v. State, 08-01-00032-CR, 2002 WL 1939156, at *4 (Tex.App.–El Paso Aug. 14, 2002, pet. refd)(not designated for publication)(DWI is a lesser included offense of intoxication assault). The question before us is whether an arrest or charge for the lesser-included offense of DWI begins the speedy trial clock for the greater charged offense of intoxication assault.Previous Texas authorities hit around the question, but do so in different contexts. The State focuses on Carr v. State, 733 S.W.2d 149 (Tex.Crim.App. 1984), a case decided under the then existing Texas statutory speedy trial framework. Mr. Carr was first charged with the lesser offense of theft, and then only later charged with the greater offense of burglary. Id. at 151. The burglary charge included an additional element not required in the theft charge (breaking and entering). The Carr court was asked to decide if the State’s announcement of ready to the lesser charge carried over to the later indicted greater offense of burglary. Id. at 152. The court concluded “[t]hese offenses involve different elements of proof, and the State’s announcement of ready under one indictment will not carry forward to an indictment alleging a completely different offense.” [Emphasis in original]. Id at 157. While instructive of how the court viewed the lesser and greater offenses in the speedy trial context, the parallel end there. Under the now repealed statutory speedy trial act, the trigger date for a speedy trial claim began with an arrest for any crime charged, or any other offense arising out of the same transaction. Id. at 151 n.1. If that statutory definition had applied here, then certainly the clock began to run on Appellant’s original arrest for both the DWI and intoxication assault.The Texas Court of Criminal Appeals decided another instructive case in Ex parte Cathcart, 13 S.W.3d 414 (Tex.Crim.App. 2000). Cathcart dealt with same offenses before us– DWI and intoxication assault. The defendant there was initially arrested and charged with DWI. Id. at 415. As here, the police officer’s arrest report noted that a person was injured in the accident. Id. The DWI charge was later dismissed, but the defendant filed a habeas proceeding seeking to preclude further indictment for intoxication assault. Id. The habeas court would only have jurisdiction to consider that claim if the defendant was “restrained in his liberty.” Tex.Code Crim.Proc.Ann. art. 11.01 (West 2015). Accordingly, the issue before the court was whether the initial arrest for DWI qualified as a legal restraint on the defendant’s liberty for the intoxication assault charge. 13 S.W.3d at 415. The court concluded that it did not. Id. at 417 (“We conclude from the record that appellant was never arrested for, charged with, or held to bail on intoxication assault until the 1997 indictments, which were presented after appellant’s writ application was filed and well within the statute of limitations.”). In reaching its decision, the court observed that documents generated at time of offense, including reports by various law-enforcement personnel, contained references to, and facts relevant to, an intoxication assault offense. Id. at 416. Yet the court explained that those documents did not constitute a “criminal accusation.” Id. at 416-17. Instead, Cathcart’s habeas eligibility did not arise until she was formally indicted on the intoxication assault charge. Id. at 416-17.The Austin Court of Appeals has cited Cathcart in two unpublished opinions, both of which undermine Appellant’s contention that the lesser DWI charge is the same as the greater intoxication assault charge for speedy trial purposes. State v. Dominguez, 03-16-00095-CR, 2017 WL 4583210 (Tex.App.–Austin Oct. 12, 2017, no pet.)(mem. op., not designated for publication); Vadnais v. State, 03-14-00578-CR, 2017 WL 474059 (Tex.App.–Austin Jan. 31, 2017, pet. ref d)(mem. op., not designated for publication).In Dominguez, the defendant was arrested in 2012 for several felony offenses arising from an assault on public officials. 2017 WL 4583210, at *1. He was not formally charged until 2015, at which time the State indicted and rearrested him on two additional charges arising from the same incident. Id. On appeal, Dominguez claimed the investigator’s knowledge of all the facts underpinning the two new charges made his original arrest the relevant starting date for speedy trial purposes. Id. at *9. Stated otherwise, he claimed that for speedy trial purposes, he was charged once the lead investigating officer knew about facts that supported the additional charges. Id. Referring to Cathcart as “instructive,” the court held that an investigating officer’s knowledge of facts that would support a charge for an offense was not tantamount to a criminal accusation of that offense. Id. at 10. Rather, the defendant’s right to a speedy trial did not attach until the time of the accusation, which was the 2015 date of indictment. Id.In Vadnais v. State, the defendant was arrested in 2012 on a misdemeanor theft charge, but indicted nine months later for felony fraudulent use or possession of identifying information. 2017 WL 474059 *2. He argued that the applicable trigger date for his speedy-trial claim was the earlier arrest for the misdemeanor charge, because both charges arose from the same set of circumstances. Id. at *3. Relying on Cathcart, however, the Austin court used the later indictment date in its calculation of the length of dely. Id.These cases undermine Appellant’s claim that the arrest or charge for DWI is the same as an accusation for intoxication assault. In part, Appellant focuses on the initial arrest report that notes the victim was “transported to the hospital with non-life threatening injuries.” From this, she later argues the State had all the fact before it to pursue the intoxication assault charge, and was dilatory in doing so. Yet the arrest paperwork in Cathcart also noted an “incapacitating injury” from that accident. Cathcart, 13 S.W.3d 414. Similarly, the court in Dominguez concluded the investigator’s knowledge of facts was not equivalent to a criminal charge. 2017 WL 4583210, at *9-10. Appellant also directs us to record references that describe the DWI and intoxication assault as the same case. For instance, a typed notation on the top of the intoxication assault indictment refers to it as an “enhancement” of the earlier misdemeanor DWI charge. A transfer order states, “this case [the DWI case] has been indicted by a Grand Jury as a felony offense.” (emphasis supplied). A district clerk’s notice concerning the bond refers to the matters as one in the same. Yet these are all legal conclusions, and none address whether an accusation of a lesser included offense also accuses one of the greater crime charges for speedy trial purposes. For that question, we find persuasive the Second Circuit’s reasoning in U.S. v. Gaskin, 364 F.3d 438, 453 (2d Cir. 2004).Gaskin was decided under the federal Speedy Trial Act and addressed whether two offenses that were the same for double jeopardy purposes were also the same for speedy trial purposes. Id. at 453. The defendant there claimed that an earlier indictment for a lesser included offense that was dismissed under the federal statutory framework would also require dismissal of a later filed greater charge. The court concluded that the double jeopardy and speedy trial analysis are fundamentally different. Constitutional double jeopardy protects “against prosecutorial abuse in pursuing multiple punishments through successive prosecutions.” Id. at 454. Statutory speedy trial rights, however, insure that charges pending against a defendant be promptly adjudicated. Id. at 455. Additionally, a charging instrument is a public pronouncement that the State believes it has probable cause to believe that a person has committed a certain charged crime. Id. Not until the State has actually charged the greater crime does it publicly accuse the defendant of the additional element required of the greater crime. Rather, “justice is usually best served by discouraging hasty prosecutorial judgments with respect to aggravated charges.” Id. at 455. The court therefore declined to apply a double jeopardy analysis to interpretation of the federal Speedy Trial Act. Id.Some of that same logic applies in this case. The State initially only accused Appellant of misdemeanor DWI, a serious but more common offense in our courthouses. Only after making a more careful consideration of whether it could prove beyond a reasonable doubt a novel medical causation question did the State elevate the charge to a felony. Our record indicates that the victim had several hospital admissions, and only on the last was the correct diagnosis of an uncommon metabolic disorder made. Even then, the State would have needed expert testimony to relate the injury to the condition. We are disinclined to promote a rule that rushes a prosecutor into make such an important decision out of fear that the speedy trial clock was running.No Need to Consider the Additional Barker FactorsAs did the district court, we conclude that the clock for speedy trial purposes on the intoxication assault charge began on September 6 (the date of the felony indictment) and ended on November 10 (the trial date in the 403rd). Because that time-period is little more than two-months, it is not sufficient to trigger a full analysis of the Barker factors. While the time-period for presumptive prejudice is determined on a case-by-case basis, no case has concluded a period as short as this qualifies. Cantu v. State, 253 S.W.3d 273, 281 (Tex.Crim.App. 2008)(“There is no set time element that triggers the analysis, but we have held that a delay of four months is not sufficient while a seventeen-month delay is.”); Pete v. State, 501 S.W.2d 683, 687 (Tex.Crim.App. 1973)(“Appellant herein was tried [for rape] approximately four months after he was bench warranted from the Texas Department of Corrections. It is our opinion that this short period of time could in no way be construed as ‘presumptively prejudicial.’”); see alsoDoggett, 505 U.S. at 651, 652 n.1, 112 S.Ct. at 2691 (noting that courts “have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year”).The State suggests this ends out inquiry. We agree with the State with one additional observation. Appellant’s second issue, which balances all the Barker factors, premises that issue on a nineteen-month delay between the date of the arrest and the date of the trial in 403rd District Court. She does not claim that the previous denial of her written motion to dismiss by the County Court at Law Nine is before us, or is at issue in this appeal. The claim would be problematic in any event. County Court at Law Nine denied her written motion to dismiss on June 20, 2016. That denial was some fifteen months after the date of the arrest for the DWI charge. Yet we would need to factor in that Appellant did not appear to be ready for trial, nor invoke her right to speedy trial, until September of 2015 as she appears to have had issues with her previous counsel up to that time. Excluding that the period time when she was not ready for trial, the period of initial delay shrinks to eight months, which lies just on the cusp of presumptive prejudice. As Appellant’s arguments all turn on a larger period of delay, we do not consider whether the ruling of the County Court judge was error.Accordingly, we do not reach Issue Two which argues the Barker factors weigh in Appellant’s favor. We never get to those factors absent a showing of presumptive prejudice under the first factor. Gonzales, 435 S.W.3d at 809. We overrule Issue One and affirm the judgment below.April 11, 2018ANN CRAWFORD McCLURE, Chief JusticeBefore McClure, C.J., Rodriguez, and Palafox, JJ.(Do Not Publish)
