Santhosh Kumar Rathode v. the State of Texas

AFFIRM; and Opinion Filed July 15, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01346-CR

SANTHOSH KUMAR RATHODE, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court No. 3
Dallas County, Texas
Trial Court Cause No. MA1922298C

MEMORANDUM OPINION
Before Justices Goldstein, Smith, and Garcia
Opinion by Justice Smith
Santhosh Kumar Rathode appeals his conviction for driving while intoxicated.

See TEX. PEN. CODE. ANN. 49.04(a), (d). In three issues, he asserts the trial court

reversibly erred by admitting the results of his intoxilyzer breath test and a 9-1-1 call

recording into evidence and by denying his right to a speedy trial. We affirm.

Background

On February 9, 2019, appellant was arrested for driving while intoxicated

(DWI) with an alcohol-concentration level of 0.15 or more. He was released on
bond and subsequently charged by complaint with the offense. After a number of

resets, his case was tried to a jury in November 2022.

Ailene Stanley testified that she was a program coordinator and records

custodian for a consolidated 9-1-1 call center for the cities of Farmers Branch,

Carrollton, and Coppell. According to Stanley, a CD offered into evidence by the

State contained an exact duplicate of a 9-1-1 call recording made at the center on

February 9, 2019. Stanley identified Michael Law, the dispatcher recorded on the

call, as a former employee who had been working around 2:00 a.m. on that date.

The trial court admitted the recording into evidence, and it was published to the jury.

The recording reflects that Kyandra Fox called 9-1-1 and described encountering a

man passed out in a black sedan at the intersection of Alpha Road and Midway in

Farmers Branch. Fox reported that the sedan’s engine was running and she had been

unable to awaken the man, who she described as a black or mixed male of medium

height in his twenties.

Farmers Branch Police Officer Jonathan Marett testified that he was on duty

February 9, 2019, and, around 2:00 a.m., was dispatched to 13600 Midway Road for

a welfare check. There, he observed a black Mustang parked almost in the

intersection. A woman was talking to a man, later identified as appellant, in the

Mustang’s driver’s seat. When Officer Marett approached, appellant pressed the gas

pedal, so Officer Marett and another officer removed appellant from the vehicle.

Appellant was not wearing a shirt, appeared to have just awakened, and smelled of

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alcohol. Appellant also was slurring his words and unsteady on his feet. Officer

Marett attempted to administer a horizontal gaze nystagmus test, but appellant was

unable to follow his instructions. Officer Marett’s dashcam and bodycam both

recorded video of the encounter, and the recordings were admitted into evidence and

published to the jury.

Officer Marett testified that he took appellant into custody and arrested him

for DWI. An empty vodka bottle and a shirt stained with vomit were located during

an inventory of appellant’s vehicle.

At the jail, Officer Marett took appellant into the intoxilyzer room, and

appellant agreed to provide a breath specimen. Before taking the specimen, Officer

Marett confirmed that appellant’s mouth was empty and commenced a fifteen-

minute waiting period. He explained that the purpose of the waiting period was to

make sure there was nothing, including residual alcohol, in a subject’s mouth “that

would mess up the test when they start to blow.” Appellant burped after a few

minutes, and Officer Marett started a new fifteen-minute waiting period. Appellant

subsequently provided two breath specimens, and the intoxilyzer machine generated

a report. Officer Marett testified that the machine was working when he used it. He

also testified that appellant vomited after the breath test was administered.

Officer Marett read appellant his Miranda warnings, and appellant agreed to

speak with Officer Marett. Appellant stated that he should not be driving and

responded “seven” when asked how intoxicated he was on a scale from zero to ten.

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Alvin Finkel testified that he was an area supervisor at the Southwestern

Institute of Forensic Scientists (SWIFS), a fee-for-service laboratory. He was

responsible for teaching operators how to use intoxilyzer machines. Finkel testified

that officers are trained to restart the fifteen-minute waiting period if they observe a

test subject regurgitate, but not for a belch or a burp.

Finkel also maintained and inspected intoxilyzers and was familiar with the

intoxilyzer used in this case. It was certified on February 9, 2019, and in Finkel’s

opinion was operating correctly at that time and capable of giving valid test results.

Finkel testified that the results of appellant’s two tests, as shown on the analytical

report generated by the intoxilyzer, were 0.157 and 0.162 grams of alcohol per 210

liters of breath. It was Finkel’s opinion that an individual with an alcohol

concentration of .08 grams or greater of alcohol would have lost the normal use of

the mental and physical faculties required to safely operate a motor vehicle.

After hearing the evidence and the arguments of counsel, the jury returned a

guilty verdict. Appellant elected to have the trial court assess punishment. At the

punishment hearing, he testified that he was in the United States on a temporary

work visa, and his wife was seven-months pregnant. Although the case had been set

for trial many times, he had always come to court and done everything that he was

supposed to do. His counsel stated, and appellant agreed, that he did not want a

conviction because of the impact that it would have on his immigration and he

wanted time to consider whether to appeal.

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The trial court sentenced appellant to 120 days’ confinement in county jail,

suspended that sentence, and imposed community supervision for a period of twelve

months. This appeal followed.

Evidentiary Rulings

In two issues, appellant complains that the trial court committed reversible

error in admitting his breath test results and the 9-1-1 call recording into evidence.

A trial court has considerable latitude with regard to evidentiary rulings, and we

review those rulings for an abuse of discretion. Fowler v. State, 544 S.W.3d 844,

848 (Tex. Crim. App. 2018); Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim.

App. 2007). Under this deferential standard, we uphold a trial court’s decision if it

is within the zone of reasonable disagreement and correct under any theory of law

applicable to the case. Fowler, 544 S.W.3d at 848; Winegarner, 235 S.W.3d at 790.

1. Breath Test Results

In his first issue, appellant contends that the trial court erred by admitting his

breath test results. Appellant asserts that there was evidence that the fifteen-minute

observation period was “compromised and substance entered into appellant’s

mouth,” indicating that Officer Marett failed to comply with Texas Department of

Public Safety (DPS) guidelines for administering the test.

Evidence of alcohol concentration shown by analysis of a breath specimen is

admissible in a DWI prosecution, provided the specimen is taken and analyzed under

DPS rules by a DPS-certified test operator. TEX. TRANSP. CODE ANN. §§ 724.016,

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724.064. When such evidence is offered, the trial court must determine whether the

test operator properly applied the required technique in accordance with DPS rules

on the occasion in question. Reynolds v. State, 204 S.W.3d 386, 390–91 (Tex. Crim.

App. 2006).

A test operator, among other required techniques, must “remain in the

continuous presence of the subject at least 15 minutes immediately before the test

and should exercise reasonable care to ensure that the subject does not place any

substances in the mouth.” 37 TEX. ADMIN. CODE § 19.3(a)(1) (2015) (Tex. Dep’t

Pub. Safety, Breath Alcohol Testing Regulations). Direct observation, however, is

not necessary to ensure the accuracy of the test result. Id.; Alvarez v. State, 571

S.W.3d 435, 437–38 (Tex. App.—Fort Worth 2019, pet. ref’d).

Officer Marett’s interactions with appellant in the intoxilyzer room were

recorded on video, and the recording was admitted into evidence and published at

trial. He testified that he was a DPS-certified intoxilyzer operator when he

administered appellant’s test. He determined that appellant had nothing in his mouth

and then started the fifteen minute waiting period. Appellant burped twice, and

Officer Marett restarted the waiting period out of an abundance of caution. He did

not know if appellant had actually regurgitated.

Officer Marett acknowledged that he did not look directly at appellant for the

entire waiting period, but he was not required to do so. 37 TEX. ADMIN. CODE §

19.3(a)(1). Defense counsel played a portion of the video recording and asked

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Officer Marett if appellant appeared to burp. Officer Marett testified that it sounded

like a grunt; he did not agree that appellant burped or belched.

Officer Marett’s testimony and the video recording demonstrate that he

complied with the DPS requirement that he remain in appellant’s continuous

presence for at least fifteen minutes immediately before the test and exercise

reasonable care to ensure that appellant did not place any substances in his mouth.

See id. On this record, we conclude that the trial court did not abuse its discretion

in admitting appellant’s breath test results into evidence. We overrule appellant’s

first issue.

2. 9-1-1 Call Recording

In his third issue, appellant contends that the trial court erred in admitting the

9-1-1 call recording into evidence over his predicate, hearsay, and Confrontation

Clause objections.

A. Authentication

Appellant first asserts that admission of the 9-1-1 call recording was an abuse

of discretion because neither individual on the call was present at trial to testify that

the “recording was accurate and that the people who were purported to be on the

recording were in fact actually on the call.”

To authenticate an item of evidence, including sound recordings, the

proponent must produce evidence sufficient to support a finding that the item in

question is what the proponent claims it to be. TEX. R. EVID. 901(a). There need

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not be conclusive proof of authenticity in order for a trial court to admit disputed

evidence. Fowler, 544 S.W.3d at 848; Tienda v. State, 358 S.W.3d 633, 638 (Tex.

Crim. App. 2012) (“the trial court itself need not be persuaded that the proffered

evidence is authentic”). The trial court need only decide “whether the proponent of

the evidence has supplied facts that are sufficient to support a reasonable jury

determination that the evidence he has proffered is authentic.” Tienda, 358 S.W.3d

at 638. This is a “liberal standard of admissibility.” Fowler, 544 S.W.3d at 849

(quoting Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015)).

A proponent may authenticate evidence multiple ways, including by direct

testimony from a witness with personal knowledge. Tienda, 358 S.W.3d at 638;

Montoya v. State, 43 S.W.3d 568, 570–71 (Tex. App.—Waco 2001, no pet.) (9-1-1

tape properly authenticated and admissible when custodian testified that tape was

made in ordinary course of business at or near time of event recorded). To

authenticate an audio recording, a witness need not identify every speaker on the

recording. Jones v. State, 80 S.W.3d 686, 688–89 (Tex. App.—Houston [1st Dist.]

2002, no pet.).

Here, Stanley testified that she was the records custodian for the call center,

where they received 9-1-1 calls for Farmers Branch and dispatched the appropriate

response. She further testified that the 9-1-1 call recording was an exact duplicate

of the 9-1-1 recording made on February 9, 2019, that she listened to it prior to trial

and “signed off on it,” that it was the regular course of business for the call center to

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keep records like the recording, and that it fairly and accurately represented what

happened that night. Stanley also was familiar with Law, the dispatcher on the

recording. We conclude, like the trial court, that her testimony was sufficient to

support a reasonable jury determination that the 9-1-1 call recording was authentic.

See, e.g., Washington v. State, No. 01-18-00596-CR, 2019 WL 3786558, at *2–3

(Tex. App.—Houston [1st Dist.] Aug. 13, 2019, pet. ref’d) (mem. op., not designated

for publication) (custodian of records properly authenticated 9-1-1 call recording

when she identified the CD that contained the recording and testified that she had

reviewed the call on the CD, placed her initials on the CD, recognized the voice of

the 9-1-1 call taker, and the recording was a record kept in the ordinary course of the

City’s business and was made at or near the time of the events recorded on the CD);

Esnard v. State, No. 05-02-01812-CR, 2003 WL 22332395, at *2 (Tex. App.—

Dallas Oct. 14, 2003, no pet.) (not designated for publication) (9-1-1 call

authenticated through business records).

B. Hearsay and Confrontation Clause Violation

Appellant also asserts that the trial court erred in overruling his hearsay and

Confrontation Clause objections to admission of the 9-1-1 call recording.

Hearsay is a statement, other than one made by the declarant while testifying

at trial, offered into evidence to prove the truth of the matter asserted. TEX. R. EVID.

801(d). Generally, hearsay statements are inadmissible at trial. TEX. R. EVID. 802.

The Sixth Amendment Confrontation Clause prohibits admission of testimonial

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statements by a witness who did not appear at trial unless the witness was

unavailable to testify and the defendant had a prior opportunity for cross

examination. Crawford v. Washington, 541 U.S. 36, 53–54 (2004); Allison v. State,

666 S.W.3d 750, 762 (Tex. Crim. App. 2023). Statements that are properly offered

and admitted not to prove the truth of the matter, but rather for a non-hearsay

purpose, do not implicate confrontation clause rights and are admissible under

Crawford. See Del Carmen Hernandez v. State, 273 S.W.3d 685, 688–89 (Tex.

Crim. App. 2008) (because co-defendant’s statement to police was offered and

admitted as non-hearsay to impeach co-defendant’s credibility, and not to prove the

truth of the matter, it did not implicate appellant’s confrontation rights).

The trial court admitted the 9-1-1 call recording over appellant’s hearsay and

Confrontation Clause objections. Although the record does not reflect that either

party requested a limiting instruction, the trial court provided the following

instruction after a subsequent break during Officer Marett’s testimony:

THE COURT: Be seated. Members of the jury, I’m going to give you
some instruction for the 911 call. Opening statements are not evidence,
they’re just summaries because the prosecutors and lawyers cannot
testify unless they’re sworn in, alright? And so I’m going to give you
a limiting instruction to then, you heard the 911 call that the State put
on. And the purpose that you should consider that evidence for, is
whether or not that 911 call was made. The statements made by the
person making the 911 call were not offered for the truth of the matter
asserting, right? So we don’t know if what that person was saying about
whatever she was seeing is true or not. That – That’s not why it was
admitted. It was admitted to show that, in fact, a 911 call was made,
and that is what you should consider that portion of the evidence was

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for and nothing else. Is that clear? Okay. Very well. Call back your
witness.

Appellant did not object to the court’s instruction.

The trial court made clear that it admitted the 9-1-1 call recording not to prove

that the recorded statements were the truth of the matter, but for the non-hearsay

purpose of explaining that the 9-1-1 call preceded the police response to the

intersection of Alpha and Midway Roads. Accordingly, the statements on the

recording were nonhearsay and did not implicate appellant’s Confrontation Clause

rights. See, e.g., West v. State, 406 S.W.3d 748, 764–65 (Tex. App.—Houston [14th

Dist.] 2013, pet. ref’d) (9-1-1 call properly admitted over hearsay and Confrontation

Clause objections when it was offered not for truth of what 9-1-1 caller stated, but

instead to provide basis for police response); Kimball v. State, 24 S.W.3d 555, 564–

65 (Tex. App.—Waco 2000, no pet.) (officer’s testimony on out-of-court

conversations between officer and dispatcher regarding conversation between

unknown motorist and 9-1-1 operator regarding possible DWI was non-hearsay, and

its admission did not violate confrontation clause). The trial court, acting in

accordance with Texas Rule of Evidence 105, provided an instruction limiting the

recording’s admissibility, and we presume that the jury followed the instruction. See

TEX. R. EVID. 105(a); Lacaze v. State, 346 S.W.3d 113, 121 (Tex. App.—Houston

[14th Dist.] 2011, pet. ref’d). On this record, we cannot conclude that the trial court

abused its discretion in admitting the recording as nonhearsay.

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Even had the statements on the recording been hearsay, we would conclude

that they were admissible under the hearsay exception for present sense impressions.

TEX. R. EVID. 803(1). A present sense impression is a “statement describing or

explaining an event or condition, made while or immediately after the declarant

perceived it.” Id. The underlying rationale for the exception is that

“contemporaneity of the statement with the event that it describes eliminates all

danger of faulty memory and virtually all danger of insincerity.” Fischer v. State,

252 S.W.3d 375, 380 (Tex. Crim. App. 2008).

Here, the evidence shows that Fox related to the 9-1-1 operator the events

immediately preceding her call and the events contemporaneously transpiring

thereafter. Because the statements concerned the events as they were happening,

and as Fox was perceiving them, the trial court could have reasonably determined

the statements fell within the hearsay exception of present sense impression. See,

e.g., Kinnett v. State, 623 S.W.3d 876, 911 (Tex. App.—Houston [1st Dist.] 2020,

pet ref’d) (concluding 9-1-1 recording was admissible under present sense exception

because caller described what he observed right before and immediately after the car

accident); see also Reyes v. State, 314 S.W.3d 74, 79 (Tex. App.—San Antonio

2010, no pet.) (concluding 9-1-1 call described events as they were happening and

qualified as present sense impression exception). Accordingly, admission of the

recording over appellant’s hearsay objection would not have been an abuse of

discretion.

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Likewise, admission of the recording would not have violated appellant’s

confrontation rights. Whether a statement is testimonial is a constitutional legal

question that we review de novo. Langham v. State, 305 S.W.3d 568, 576 (Tex.

Crim. App. 2010); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006);

Chronister v. State, No. 05-15-00038-CR, 2016 WL 3517951, at *3 (Tex. App.—

Dallas June 20, 2016, pet. ref’d) (mem. op., not designated for publication) (citing

Wall). “Statements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the primary purpose of

the interrogation is to enable police assistance to meet an ongoing emergency.”

Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008) (quoting Davis v.

Washington, 547 U.S. 813, 822 (2006)). In contrast, statements are testimonial

“when the circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to establish or prove

past events potentially relevant to later criminal prosecution.” Id. (quoting Davis,

547 U.S. at 822). Factors to determine whether a statement was made during an

ongoing emergency include whether: (1) the situation was still in progress; (2) the

questions sought to determine what was presently happening as opposed to what had

happened in the past; (3) the primary purpose of the interrogation was to render aid

rather than to memorialize a possible crime; (4) the questioning was conducted in a

separate room, away from an alleged attacker; and (5) the events were deliberately

recounted in a step-by-step fashion. Id. at 339.

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Statements on 9-1-1 calls that relate to ongoing emergencies, and do not

establish historical facts, are non-testimonial and do not implicate the Sixth

Amendment. Davis, 547 U.S. at 827–28 (statements made by complainant to 9-1-1

dispatcher identifying Davis as her assailant were non-testimonial because their

“primary purpose was to enable police assistance to meet an ongoing emergency”);

Gaeta v. State, No. 05-14-01202-CR, 2016 WL 3870665, at *5 (Tex. App.—Dallas

July 12, 2016, no pet.) (mem. op., not designated for publication) (statements made

during 9-1-1 call related to an ongoing emergency and were non-testimonial). In

this case, Fox alerted the 9-1-1 dispatcher that a man was passed out in a vehicle

with the engine running at an intersection. The dispatcher’s questions sought to

determine what was presently happening at the location and to direct responding

officers to the scene. We conclude the statements related to an ongoing emergency

and were nontestimonial in nature. Accordingly, admitting the recording over

appellant’s Confrontation Clause objection would not be an abuse of discretion.

For these reasons, we overrule appellant’s third issue.

Speedy Trial

In his second issue, appellant argues that the State violated his constitutional

right to a speedy trial. The Sixth Amendment to the U.S. Constitution guarantees

the accused in a criminal prosecution the right to a speedy trial. See U.S. CONST.

amend. VI. The right attaches once a person is either arrested or charged. Cantu v.

State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). We determine a speedy trial

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claim on an ad hoc basis by analyzing and weighing four factors: (1) the length of

the delay, (2) the State’s reason for the delay, (3) the defendant’s assertion of his

right to a speedy trial, and (4) prejudice to the defendant because of the length of

delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); Cantu, 253 S.W.3d at 280. The

State has the burden to justify the length of the delay, while the defendant has the

burden to prove that he asserted his right and was prejudiced by the State’s delay.

Cantu, 253 S.W.3d at 280.

A trial court need not conduct a formal or specially designated hearing on a

motion for speedy trial. Taylor v. State, 667 S.W.3d 809, 810 (Tex. Crim. App.

2023). The record is sufficient for an appellate court to weigh the Barker factors if

it contains information on “the length of the delay, reason for the delay, assertion of

the right, and prejudice.” Id. When the record fails to show whether and what type

of prejudice the appellant may have suffered, the deficiency merely affects how the

factors will be weighed. Id.

We apply a bifurcated standard of review in a speedy trial analysis: we employ

an abuse of discretion standard for the factual components and a de novo standard

for the legal components. State v. Lopez, 631 S.W.3d 107, 113–14 (Tex. Crim. App.

2021). We give almost total deference to the trial court’s historical findings of fact

that are supported by the record. Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim.

App. 2014). Initial triggering of the speedy trial issue, as well as the balancing test

of the Barker factors, are purely legal questions that we review de novo. Id.

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1. Presumptive Prejudice and Length of Delay

To trigger a speedy trial analysis, the defendant must make an initial showing

that “the interval between accusation and trial has crossed the threshold dividing

ordinary from ‘presumptively prejudicial’ delay.” Id. (quoting Doggett v. United

States, 505 U.S. 647, 651–52 (1992)); see also Barker, 407 U.S. at 530–32 (length

of delay is “triggering mechanism” for analysis of other factors). Although Texas

courts generally have considered delay approaching one year to be “unreasonable

enough to trigger the Barker enquiry,” see Balderas v. State, 517 S.W.3d 756, 768

(Tex. Crim. App. 2016), we determine whether a Barker analysis is triggered on a

case-by-case basis, without imposing rigid time limitations. Munoz v. State, Nos.

05-20-00192-CR, 05-20-00194-CR, 2021 WL 2253245, at *6 (Tex. App.—Dallas

June 3, 2021, pet. ref’d) (mem. op., not designated for publication).

Appellant was arrested on February 9, 2019; his right to a speedy trial attached

on that date. See Cantu, 253 S.W.3d at 280 (right attaches once a person becomes

an “accused” by being arrested or charged). His trial began November 29, 2022,

almost three years and ten months later. However, when addressing the length of

delay, we do not include time covered by agreed resets. Mosley v. State, No. 05-22-

00121-CR, 2023 WL 5163278, at *4 (Tex. App.—Dallas Aug. 11, 2023, pet. ref’d)

(mem. op., not designated for publication). Here, the record contains eighteen pass

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slips signed by appellant’s counsel showing he agreed to resets from the initial July

30, 2019 trial setting through the November 29, 2022 trial.1

The docket sheet, however, contains notations indicating that a reset from

September 13, 2021 to December 6, 2021 was a “court reset” and a subsequent reset

to February 28, 2022 was a “State reset.” Appellant filed his speedy trial demand

on February 14, 2022, after his counsel signed a January 27, 2022 pass slip resetting

1
Specifically, the record contains the following pass slips:

 July 30, 2019 pass slip for reset to September 10, 2019, signed by both parties and indicating
reason for reset was discovery;
 September 10, 2019 pass slip for reset to October 15, 2019, signed by both parties with
notations “will rec” and “requested obstruction review”;
 October 15, 2019 pass slip for reset to November 19, 2019, signed by both parties with notation
“declined obstruction/will rec”;
 November 18, 2019 pass slip for reset to January 13, 2020, signed by both parties and noting a
plea offer;
 January 13, 2020 pass slip for reset to February 17, 2020, signed by both parties;
 February 17, 2020 pass slip for reset to May 20, 2020, signed by both parties and noting that
pretrial was set on May 7, 2020;
 April 29, 2020 pass slip for reset to July 20, 2020, signed by defense counsel with notation “set
for trial”;
 July 13, 2020 pass slip for reset to September 21, 2020, signed by defense counsel with notation
“needs trial date”;
 September 14, 2020 pass slip for reset to October 26, 2020, signed by defense counsel with
notation “needs trial date”;
 October 19, 2020 pass slip for reset to December 14, 2020, signed by defense counsel with
notation “need trial date”;
 December 7, 2020 pass slip for reset to February 8, 2021, signed by defense counsel with
notation “need trial date”;
 February 1, 2021 pass slip for reset to March 8, 2021, signed by defense counsel with notation
“need trial date;”
 March 1, 2021 pass slip for reset to April 26, 2021, signed by defense counsel with notation
“need trial date”;
 April 19, 2021 pass slip for reset to September 14, 2021, signed by both parties with notation
“PTH 9/2/21”;
 May 24, 2021 pass slip for reset to September 13, 2021, signed by both parties;
 September 14, 2021 pass slip for reset to December 6, 2021, signed by both parties;
 November 29, 2021 pass slip for reset to February 28, 2022, signed by both parties;
 January 27, 2022 pass slip for reset to August 15, 2022, signed by both parties with notation
that pretrial was set for July 13, 2022; and
 July 29, 2022 pass slip for reset to November 29, 2022, signed by both parties.
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trial to August 15, 2022. Appellant did not request a hearing on his speedy trial

demand. The trial court held a pretrial hearing on July 13, 2022, but there is no

reporter’s record of that hearing to indicate if appellant’s speedy trial demand was

discussed. Then, on July 29, 2022, the State filed its first motion for continuance,

requesting additional time “to secure the attendance of a key and material witness.”

The motion states that appellant opposed the continuance. The record does not

indicate that there was a hearing on the motion. The docket sheet reflects only that

the court granted the motion, noting, “State has a witness that is unavailable; case to

be tried or dismissed,” and reset trial for November 29, 2022.

Discounting the pass slips signed by appellant’s counsel that appear to conflict

with the docket sheet notations and appellant’s opposition to the State’s motion for

continuance, appellant sought or agreed to reset trial for a period of approximately

two years and seven months.2 The remaining delay, attributable to the State, was a

period of approximately one year and three months.3 We consider the overall delay

in bringing appellant to trial sufficient to trigger a Barker analysis. We also consider

the length of delay attributable to the State, slightly over a year, to weigh against it,

but not heavily.

2
We note that, for a portion of this period, there were delays in jury trials due to the Covid-19
pandemic; during the punishment hearing, appellant’s counsel acknowledged that the case had “certainly
dragged on . . . because of the circumstances of COVID and the shutdowns.”
3
February 9, 2019 to July 30, 2019 (five months, twenty-two days), September 13, 2021 to February
28, 2022 (five months, sixteen days), and August 15, 2022 to November 29, 2022 (three months, fifteen
days).
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2. Reasons for the Delay

Under the second Barker factor, we weigh the reasons for the delay in bringing

appellant to trial. 407 U.S. at 530. Deliberate delays by the State, intended to

“hamper the defense,” weigh heavily against it. Balderas, 517 S.W.3d at 768.

Neutral reasons for the delay, such as negligence or overcrowded courts, also weigh

against the State, but not as heavily. Id. Valid reasons for the delay, such as a

missing witness or engaging in plea negotiations, are justified and do not weigh

against the State. Barker, 407 U.S. at 531; State v. Munoz, 991 S.W.2d 818, 824

(Tex. Crim. App. 1999). Nor do delays attributable to the defendant. Id. The State’s

failure to offer a reason for the delay weighs against it, but not heavily, because when

the record is silent as to the reason for the delay, we presume neither willful conduct

by the State nor a valid reason for the delay. Balderas, 517 S.W.3d at 768; Dragoo

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

Just under six months of the overall delay occurred between appellant’s arrest

and the initial July 30, 2019 trial setting. The State, however, is entitled to a

reasonable period of time in which to develop its case. See Shaw v. State, 117

S.W.3d 883, 889–90 (Tex. Crim. App. 2003) (noting that three-month interval

between indictment and first setting was reasonable period for preparation and did

not count against State). There is no evidence that this period of time was

unreasonable or the result of any deliberate attempt by the State to delay.

Accordingly, we conclude that this period is neutral. See Chairez v. State, Nos. 05-

–19–
22-00967-CR–05-22-00986-CR, 2023 WL 9693573, at *5 (Tex. App.—Dallas Dec.

6, 2023, pet. ref’d) (mem. op., not designated for publication).

An additional delay of approximately five and a half months was due to the

December 6, 2021 “court reset” and the February 28, 2022 “State reset.” We weigh

neutral reasons, such as negligence and overcrowded courts, against the State,

Balderas, 517 S.W.3d at 768, but there is no explanation in the record for either

reset, both of which occurred prior to appellant filing his speedy trial demand.

Because appellant does not contend that the State engaged in bad faith conduct, and

nothing in the record suggests as much, we weigh these delays against the State, but

not heavily so.

The final three and a half month delay was due to the State’s motion for

continuance, which was filed after appellant filed his speedy trial demand. The State

sought the motion in order to secure a witness for trial, and a missing witness can be

a valid reason justifying an appropriate delay. Barker, 407 U.S. at 531. Neither the

State’s motion nor anything else in the record identify the witness that was

unavailable, why the witness was necessary, or the State’s efforts to procure the

witness’s attendance at trial, but there is no argument that the State deliberately

delayed appellant’s trial for strategic gain. Because this lack of an explanation is not

as egregious as purposeful delaying tactics, we conclude that this factor weighs only

slightly against the State.

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3. Assertion of the Right

In determining whether a defendant was deprived of his speedy trial right, we

give strong evidentiary weight to his assertion of the right. Balderas, 517 S.W.3d

at 771. The longer the delay before trial, the more likely a defendant wanting a

speedy trial would request it. Id. If the defendant does not timely demand a speedy

trial, we assume that he did not really want one. Id. A tardy assertion of the right to

a speedy trial does not waive the right, but makes it more difficult to show the right

was denied. Richardson, 631 S.W.3d at 277.

Here, appellant did not file his speedy trial demand until February 14, 2022,

more than three years after his arrest. At the time, trial was set for August 15, 2022,

a reset agreed to by appellant’s counsel in a January 27, 2022 pass slip. Although

the State thereafter obtained an additional three and a half month continuance,

appellant acquiesced to the vast majority of the prior delay.

A defendant must timely assert his right to a speedy trial; it weighs against a

speedy-trial challenge when he fails to do so. See Balderas, 517 S.W.3d at 771. On

this record, we conclude that appellant’s extended delay in demanding a speedy trial,

coupled with his agreement to at least fifteen resets, weighs heavily against a finding

of a speedy-trial violation. See Shaw, 117 S.W.3d at 890 (in view of lengthy delay,

during most of which appellant quietly acquiesced, assertion of right factor weighed

very heavily against finding violation of right to speedy trial); Dragoo, 96 S.W.3d

at 314–15.

–21–
4. Prejudice Caused by Delay

To assess the prejudice, if any, caused by the delay, we consider the interests

that the speedy trial right attempts to protect: preventing oppressive pretrial

incarceration, minimizing anxiety and concerns of the accused, and limiting the

possibility that the defense will be impaired. Munoz, 991 S.W.2d at 826.

Appellant was not subject to pretrial incarceration. To show prejudice, he

directs the Court to his expression of concern, during the punishment hearing, about

the effect that a conviction may have on his immigration status. However, he directs

us to nothing to show that the delay in resolving this case affected his immigration

status. Further, evidence of a generalized concern or anxiety, though relevant, is not

sufficient proof of prejudice under the Barker test. See Cantu, 253 S.W.3d at 286.

Appellant also asserts that “the fact that the original 9-1-1 caller as well as the

9-1-1 dispatcher were not called to trial hindered [his] ability to effectively

investigate and defend his case as well as cross-examine witnesses.” He directs the

Court to nothing in the record to identify what he had done to try to locate either

potential witness or what they might have testified to on his behalf. See Harris v.

State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973) (to show prejudice, defendant

must show witnesses are unavailable, their testimony might be material and relevant

to his case, and he has exercised due diligence in attempt to find them and produce

them for trial). Indeed, his acquiescence to the majority of the extended delay may

have played a role in the witnesses’ availability. See State v. Gilliland, No. 05-16-

–22–
00547-CR, 2017 WL 3276004, at *7 (Tex. App.—Dallas Aug. 1, 2017, pet. ref’d)

(mem. op., not designated for publication). Accordingly, we conclude that appellant

has failed to establish a level of prejudice sufficient to meet the fourth Barker factor,

and this factor weighs against him.

5. Balancing the Barker Factors

Having assigned weight to the four Barker factors, we balance their relative

weights in light of the conduct of both parties. Cantu, 253 S.W.3d at 281. Weighing

the relevant factors together in a de novo balancing analysis, we conclude that

appellant failed to establish a violation of the right to a speedy trial. The length of

the one year, three month delay attributed to the State weighs against it slightly.

Appellant asserted his right to a speedy trial, but did so approximately three years

after his arrest and after agreeing to a number of resets, and he has not shown that

the State’s delay in trying him caused him prejudice. We overrule appellant’s second

issue.

Conclusion

We affirm the trial court’s judgment.

/Craig Smith/
CRAIG SMITH
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
221346F.U05

–23–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

SANTHOSH KUMAR RATHODE, On Appeal from the County Criminal
Appellant Court No. 3, Dallas County, Texas
Trial Court Cause No. MA1922298C.
No. 05-22-01346-CR V. Opinion delivered by Justice Smith.
Justices Goldstein and Garcia
THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 15th day of July, 2024.

–24–