Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-25-00319-CR
Oscar SALAZAR,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2023CR5009
Honorable Benjamin Robertson, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Irene Rios, Justice
Lori I. Valenzuela, Justice
Lori Massey Brissette, Justice
Delivered and Filed: August 19, 2026
AFFIRMED
In a single issue, appellant Oscar Salazar contends the trial court violated his right to a
speedy trial when it immediately set his case for trial rather than dismiss it with prejudice. We
affirm.
BACKGROUND
Salazar was arrested on March 20, 2023, and then indicted on June 8, 2023, for committing
aggravated assault with a deadly weapon. Soon thereafter, on July 31, 2023, Salazar filed a demand
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for a speedy trial. However, nothing in the record indicates this motion was presented to the trial
court. The clerk’s record indicates the State subsequently moved for a continuance on October 24,
2023, contending a necessary and material witness was unavailable for trial due to an injury and
the State was also waiting to receive records from the Texas Department of Family and Protective
Services (the “Department”) concerning Salazar’s daughter. The trial court granted the State’s
motion for continuance, resetting the case to November 6, 2023.
According to the scarce record on appeal, the trial court subsequently set the case for trial
on May 13, 2025, and Salazar filed his motion to dismiss contending he was denied his right to a
speedy trial. The motion requested that the trial court dismiss his case or, alternatively,
immediately set it for trial. Salazar argued in his motion that more than two years had passed since
his indictment, and trial had been reset eighteen times. Of the eighteen resets, the record indicated
two of the resets were at the State’s request, including the most recent announcement on May 8,
2025, where the State announced it was not ready for trial.
The trial court conducted a hearing on Salazar’s motion; and while the trial court’s order
granted Salazar’s motion, the trial court did not dismiss the case, but instead set it for trial on May
19, 2025, the next business day following the hearing. On May 19, 2025, Salazar waived his right
to trial and pled “nolo contendere” to attempted aggravated assault causing serious bodily injury.
The trial court sentenced Salazar to four years in prison in accordance with the plea agreement.
Salazar appeals, claiming his case should have been dismissed because his speedy-trial right was
violated.
SPEEDY TRIAL LAW
Both the United States Constitution and Texas Constitution guarantee an accused the right
to a speedy trial. See U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10; see also State v. Lopez,
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631 S.W.3d 107, 113 (Tex. Crim. App. 2021) (describing Texas Constitution as containing “the
same guarantee” as U.S. Constitution); Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App.
2003) (stating that courts apply the same legal standard to state and federal constitutional speedytrial challenges). The right to a speedy trial attaches once a person is either arrested or charged.
See Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).
Courts evaluate a speedy-trial claim under a four-factor test that considers the length of the
delay, the reasons for the delay, the extent to which the accused asserted the right to a speedy trial,
and any prejudice suffered by the accused due to the delay. See Barker v. Wingo, 407 U.S. 514,
530 (1972); Lopez, 631 S.W.3d at 113. If the defendant can make a threshold showing that the
interval between accusation and trial is “presumptively prejudicial,” then a court must consider
each of the remaining Barker factors and weigh them. Balderas v. State, 517 S.W.3d 756, 767
(Tex. Crim. App. 2016). There is no set time element that triggers the Barker analysis, but the
Texas Court of Criminal Appeals has held that a delay of eight months to a year or longer is
sufficient to cross the threshold requiring a court to conduct a complete speedy-trial analysis.
Lopez, 631 S.W.3d at 114.
When the length of delay is presumptively prejudicial and requires a complete speedy-trial
analysis, a court must assess the strength of each of the four factors and balance their relative
weights considering the prosecution’s and defendant’s conduct. Cantu, 253 S.W.3d at 281. No
single factor is necessary or sufficient on its own to support a finding that the accused’s right to a
speedy trial has been violated. Id. Because the four factors must be considered together, courts
must engage “‘in a difficult and sensitive balancing process’ in each individual case.” Id. (quoting
Barker, 407 U.S. at 533).
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“Dismissal of the charging instrument with prejudice is mandated only upon a finding that
an accused’s Sixth Amendment speedy-trial right was actually violated.” State v. Gabaldon, 727
S.W.3d 1, 16–17 (Tex. Crim. App. 2025) (quoting Cantu, 253 S.W.3d at 281). “This is indeed a
serious consequence because it means that a defendant who may be guilty of a serious crime will
go free, without having been tried.” Barker, 407 U.S. at 522. Each case must be analyzed “with
common sense and sensitivity to ensure that charges are dismissed only when the evidence shows
that a defendant’s actual and asserted interest in a speedy trial has been infringed.” Cantu, 253
S.W.3d at 281.
We apply a bifurcated standard of review to a trial court’s ruling on a speedy-trial claim.
Id. at 282. We review the factual components for an abuse of discretion and the legal components
de novo. Id. Review of the individual Barker factors necessarily involves factual determinations
and legal conclusions, but the balancing test overall is “a purely legal question.” Id. As to the trial
court’s determination of factual issues, we view all the evidence in the light most favorable to the
trial court’s ruling. Id.
APPLICABLE FACTS FROM HEARING ON MOTION FOR SPEEDY TRIAL
During the hearing, the State stipulated that the Barker analysis was triggered because more
than two years had passed since Salazar’s arrest. While discussing the various resets, the trial court
recognized that the State’s announcement of not ready for the May 13, 2025 trial setting stemmed
from the unavailability of a State witness. The trial court also explained that its docket was
unfortunately extremely backlogged, and the trial court was attempting to move cases as fast as it
could. Salazar explained that none of the resets were his fault but were either a result of the trial
court’s backlog or the State’s noncompliance with its discovery requirements. Salazar never
requested a continuance.
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The State acknowledged that Salazar’s July 31, 2023 speedy-trial demand was brought to
the attention of the trial judge who previously presided over the trial court and then recently
brought to the attention of the trial judge who currently presides over the trial court. Nonetheless,
the record does not indicate how or when Salazar’s initial demand was first brought to the trial
court’s attention as nothing in the record indicates the motion was formally presented to the trial
court or a hearing requested. When Salazar’s demand for a speedy trial was brought to the currently
sitting trial judge’s attention, the trial judge instructed Salazar to file a speedy-trial motion and
request a hearing. Salazar did so, and the trial court held a hearing on Salazar’s motion.
Salazar claimed prejudice resulting from the delay. He first claimed the passage of twentyfive months in custody is “definitely . . . oppressive pretrial incarceration.” Only Salazar testified
at the hearing, and according to Salazar, his youngest daughter, who was thirteen at the time of the
alleged offense, lived and still lives with her mother and the complainant in this case. Salazar stated
his daughter was present at the time of the alleged offense and had indicated she wanted to testify
at trial on his behalf. Nevertheless, Salazar indicated his daughter informed him that since the
offense, her mother has been trying to persuade her not to assist Salazar making it uncertain
whether she was still a favorable witness. Salazar testified he has experienced anxiety, stress, and
concern from his lengthy incarceration because it has caused him to be absent from his children
and family events, such as the birth of his grandchild.
The State attributed the majority of the delay to procuring the correct records from the
Department. According to the State, evidence from the records reveals Salazar’s motive for
committing the offense. Salazar agreed the records were important but for different reasons than
the State proffered. Salazar claimed, however, that the State did not request the records from the
Department until one year into his incarceration.
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Rather than dismiss the case for violating Salazar’s right to a speedy trial, the trial court
granted the alternative relief Salazar requested in his motion and immediately set Salazar’s trial
for the next business day.
ANALYSIS
A. Length of Delay
The first Barker factor is the length of delay. Barker, 407 U.S. at 530. As stated above, in
conducting a Barker analysis, “[w]e measure the length of delay from (1) the time the accused is
arrested or charged to (2) the time of trial or the defendant’s demand for a speedy trial.” State v.
Lampkin, 630 S.W.3d 559, 563 (Tex. App.—San Antonio 2021, no pet.). A delay “approaching
one year” is presumptively unreasonable so as “to trigger the Barker [in]quiry.” Balderas, 517
S.W.3d at 768 (internal quotation marks omitted). Here, Salazar was arrested on March 20, 2023,
and demanded a speedy trial on May 13, 2025—a delay of approximately twenty-six months. The
State concedes on appeal that “this delay triggers the Barker inquiry and weighs against the State.”
B. Reasons for Delay
“While the State has the burden of justifying the length of the delay, the defendant has the
burden of proving the assertion of the right and showing prejudice.” Cantu, 253 S.W.3d at 280
(citing Barker, 407 U.S. at 531; Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973)).
When evaluating the reasons for the delay, “a court must accord different weights to different
reasons, and it must ask “‘whether the government or the criminal defendant is more to blame for
the delay.’” Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim. App. 2017) (quoting Vermont v.
Brillon, 556 U.S. 81, 90 (2009)); see also Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim.
App. 2002) (providing that the reasons for the delay determine how heavily this factor weighs).
Deliberate delays aimed at hampering the defense weigh heavily against the government, while
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negligence or overcrowded courts also weigh against the government, just less heavily. See Barker,
407 U.S. at 531; State v. Munoz, 991 S.W.2d 822 (Tex. Crim. App. 1999). On the other hand, valid
reasons for the delay, including accommodating witnesses, should not be weighed against the
government. See Barker, 407 U.S. at 531.
Delays attributable to the defense weigh against the defendant. Hopper, 520 S.W.3d at 924.
“In 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.” Balderas,
517 S.W.3d at 768 (quoting Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003)).
As stated above, within two months of being indicted, Salazar filed a demand for a speedy
trial. However, this filing only requested “the State’s cooperation in preserving [Salazar’s] right to
a speedy trial;” it did not seek any other relief. Nothing in the record shows Salazar sought to set
a hearing or obtain a ruling from the trial court pertaining to his right to a speedy trial based on
this filing. On May 13, 2025, Salazar filed a motion to dismiss for the denial of his right to a speedy
trial. Salazar asserted his case was reset eighteen times following his arrest on March 20, 2023,
because the State “was not ready either due to noncompliance with . . . the Texas Code of Criminal
Procedure[’s discovery requirements] or issues with [its] witnesses.” Although Salazar’s motion
states that for those reasons the State was not ready “[a]t each and every setting” and that on the
May 8, 2025 setting, the “State announced not ready in open court,” the record is silent to the
reasons for sixteen out of the eighteen trial resets. Aside from the trial court’s order granting the
State’s October 23, 2023 motion for continuance and resetting the case to November 6, 2023, and
the State’s May 8, 2025 announcement, the clerk’s record fails to shed light on the basis for the
other trial resets. Additionally, the record fails to indicate whether the State’s October 2023
continuance request, as well as the other resets, were agreed upon or opposed by Salazar. See
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Richardson v. State, 631 S.W.3d 269, 274 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d)
(explaining that “agreed resets are inconsistent with the assertion of a speedy trial right”).
However, during the hearing on Salazar’s motion to dismiss, the State acknowledged that a “very
long period of time” elapsed while waiting for the Department’s records but claimed the records
were important to both the State and Salazar.
Hence, while the Department is considered to be the State as well, the State’s October 2023
request for a continuance and other delays attributed to obtaining the Department’s records weighs
against the State but only slightly as there is no evidence indicating the State deliberately attempted
to prejudice Salazar’s defense by withholding the Department’s records. See Munoz, 991 S.W.2d
at 822. The more neutral reason for the delay, such as overcrowded courts, also weighs against the
State but weighs less heavily. See id.; see also Barker, 407 U.S. at 531. The State’s additional
reason for requesting the October 2023 continuance, an unavailable witness, justifies appropriate
delay and should not be weighed against the government. See Barker, 407 U.S. at 531.
Moreover, Salazar did not seek a hearing or a ruling from the trial court on the denial of a
speedy trial until he filed his motion to dismiss on May 13, 2025, which was heard on May 16,
2025, and resulted in the trial court setting the case for trial on May 19, 2025. Thus, the delay from
the date of Salazar’s arrest until he filed his speedy-trial motion to dismiss and sought a ruling
from the trial court, is substantially attributable to Salazar. See Crocker v. State, 441 S.W.3d 306,
311 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d); see also Guevara v. State, 985 S.W.2d 590,
592 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (providing that a speedy-trial motion must
be “presented” to the trial court and the movant “must make the trial judge aware of the motion by
calling the judge’s attention to it in open court and requesting a ruling thereon”).
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Therefore, the State is responsible for some of the delay; however, the State’s October 2023
continuance is attributable to the coordination of a witness and obtaining the Department’s records.
See Munoz, 991 S.W.2d at 822. Also, nothing in the record suggests that the other resets were
opposed by Salazar, so either Salazar agreed to the delays or the reasons for the delays are
considered neutral. See Richardson, 631 S.W.3d at 275; see also Balderas, 517 S.W.3d at 768.
Salazar failed to file and present his speedy-trial motion to dismiss to the trial court until over two
years after his arrest. Therefore, we conclude that the delay factor weighs against finding a
violation of Salazar’s right to a speedy trial. See Hopper, 520 S.W.3d at 925; Guevara, 985 S.W.2d
at 592.
C. Assertion of the Right
“The third Barker factor—the defendant’s assertion of his right to a speedy trial—is
entitled to strong evidentiary weight in determining whether the defendant has been deprived of
that right.” Balderas, 517 S.W.3d at 771. The accused bears the burden of proving he asserted the
right. Cantu, 253 S.W.3d at 282–83. “A defendant has no duty to bring himself to trial;” he does
however have a responsibility to assert his right to a speedy trial. Barker; 407 U.S. at 527; see
Zamorano, 84 S.W.3d at 651; see also Henson v. State, 407 S.W.3d 764, 768–69 (Tex. Crim. App.
2013) (holding speedy-trial right is subject to ordinary error-preservation rules). An accused’s
failure to timely assert his right to a speedy trial strongly indicates that he did not desire one.
Balderas, 517 S.W.3d at 771. An accused who desires a speedy trial is more likely to assert this
right the longer the trial is delayed. Id. Hence, prolonged inaction by the accused weighs more
heavily against finding that the speedy trial guarantee has been violated. Id.
Here, as explained above, Salazar did not request a hearing or seek a ruling on his initially
filed demand for a speedy trial filed within two months of his arrest. To the contrary, Salazar did
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not invoke his speedy-trial right until May 13, 2025—more than two years after his arrest—when
he filed a motion to dismiss the case for denial of his right to a speedy trial, set the motion for a
hearing, and obtained a ruling. The trial court granted Salazar’s alternative relief by immediately
setting the case for trial. It is well-established that “[f]iling for dismissal instead of a speedy trial
will generally weaken a speedy-trial claim because it shows a desire to have no trial instead of a
speedy one.” Gabaldon, 727 S.W.3d at 18 (quoting Cantu, 253 S.W.3d at 283).
Moreover, as explained above, the record is devoid of Salazar’s objections to the multiple
resets in this case. Thus, from this record, we can infer Salazar acquiesced to the very delay he
now challenges, while failing to file and bring his speedy trial motion to dismiss to the trial court’s
attention. See State v. Beck, 695 S.W.3d 729, 746 (Tex. App.—Houston [1st Dist.] 2024, no pet.);
see also Hopper, 520 S.W.3d at 929.
D. Prejudice Assessment
We assess prejudice in light of the interests the speedy-trial right is designed to protect:
“(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at
532. The last interest is the most serious because a defendant’s inability to prepare an adequate
defense skews the fairness of the entire system. Id. While a defendant shoulders the burden to
make some showing of prejudice, “a showing of actual prejudice is not required.” Balderas, 517
S.W.3d at 772; cf. Gabaldon, 727 S.W.3d at 19 (internal quotation and citations omitted) (“[I]n
the absence of excessive bad-faith or excessive negligent delay by the government, a defendant
usually has to show specific prejudice to his defense.”). “Excessive delay presumptively
compromises the reliability of a trial in ways that neither party can prove or identify.” Balderas,
517 S.W.3d at 772.
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However, “delay is a two-edged sword[.]” Gabaldon, 727 S.W.3d at 19. In addition to the
impacts the delay can cause the defendant, the passage of time can also negatively impact or
altogether prevent the State’s ability to prove its case beyond a reasonable doubt. See id. Thus, a
presumption of prejudice may be “extenuated . . . by the defendant’s acquiescence in the delay.”
Id. (internal quotation omitted).
Salazar urged that he suffered from oppressive pretrial incarceration because he had been
in custody since his arrest in March 2023—over two years before trial. Salazar testified during the
speedy-trial hearing that because he was incarcerated, he could not see and spend time with his
daughter, who Salazar claimed was present during the alleged offense and would testify favorably
in his defense. However, Salazar did not elaborate on what his daughter’s testimony would be or
how it would benefit him. Moreover, apart from generally asserting his daughter’s mother was
“actively trying to prevent [his daughter] from helping” him, Salazar failed to indicate how his
daughter was being prevented from testifying other than suggesting his daughter’s availability as
a witness was now uncertain. “Conclusory assertions of this sort do not demonstrate prejudice.”
Beck, 695 S.W.3d at 748.
To add, Salazar’s additional assertions fail to demonstrate anxiety or concern beyond that
which would be expected for someone charged with a serious crime. See Gabaldon, 727 S.W.3d
at 19 (citing Shaw, 117 S.W.3d at 890); see also Beck, 695 S.W.3d at 748; State v. Moreno, 651
S.W.3d 399, 415 (Tex. App.—Houston [1st Dist.] 2022, no pet.). Moreover, on this record, any
presumptive prejudice due to the passage of time is arguably extenuated by Salazar’s acquiescence
in the delay resulting from agreed or unobjected to resets and failure to file his speedy-trial motion,
request a hearing, or seek a ruling until more than two years after his incarceration. See Hopper,
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520 S.W.3d at 929; see also Balderas, 517 S.W.3d at 773 (concluding any prejudice to defendant
was extenuated by his role in delays).
While we acknowledge that Salazar suffered some prejudice from his pretrial incarceration,
such prejudice standing alone is not enough to support his claim that his right to a speedy trial was
violated. See Munoz, 991 S.W.2d at 829 (seventeen-month pretrial incarceration was “minimal”
prejudice); Meyer v. State, 27 S.W.3d 644, 650–51 (Tex. App.—Waco 2000, pet. ref’d), abrogated
on other grounds by Robinson, 240 S.W.3d at 922 (twenty-three-month pretrial incarceration and
resultant anxiety alone is “minimal” showing of prejudice).
Salazar claims his defense has been impaired by his daughter’s possible unavailability as a
witness. Even assuming her testimony is material, relevant, and favorable, Salazar failed to show
he exercised due diligence in procuring her presence at trial. See Gabaldon, 727 S.W.3d at 19
(citing Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973)); see also Marquez v. State,
165 S.W.3d 741, 750 (Tex. App.—San Antonio 2005, pet. ref’d) (instructing that “some showing
of prejudice” requires evidence the delay caused a witness’s unavailability for trial, the testimony
would have been relevant and material, and the defendant exercised due diligence to locate the
witness for trial). Salazar did not establish his daughter was unavailable for trial. Thus, absent this
evidence, Salazar failed to satisfy his burden to show his daughter is unavailable to testify.
Gabaldon, 727 S.W.3d at 19; see also Phipps v. State, 630 S.W.2d 942, 947 (Tex. Crim. App.
1982) (“Even if it be conceded that the testimony of the missing witnesses was material to the
instant case, the appellant has not shown diligence in procuring the witnesses as the record fails to
indicate that the witnesses were subpoenaed.”).
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E. Balancing of Factors
Based on the record before us, Salazar contradicted his own demands for a speedy trial,
quietly acquiescing in the delay until finally filing his speedy-trial motion, requesting a hearing,
and seeking a ruling more than two years after being incarcerated. However, Salazar requested that
his case first be dismissed before pleading in the alternative that the trial court immediately set it
for trial. Regarding prejudice cause by the alleged uncertainty of his daughter’s availability to
testify favorably in his defense, Salazar and his counsel failed to elaborate on what the potential
testimony Salazar’s daughter would provide, how it pertained to Salazar’s defense, and failed to
show due diligence in procuring her availability to testify at trial. Rather, Salazar’s general
allegation that his daughter’s availability to testify at trial on his behalf is questionable was a bare,
conclusory assertion. The record, on the other hand, establishes that most of the delay could not
be attributed with great weight against the State because the delays were either justified or were
considered neutral to both parties.
Balancing the four factors, we conclude Salazar has not met his burden to show his case
should have been dismissed for lack of a speedy trial. See Barker, 407 U.S. at 534.
Accordingly, we overrule Salazar’s sole appellate issue.
CONCLUSION
Because we overrule Salazar’s speedy-trial issue, we affirm the trial court’s final judgment
of conviction.
Irene Rios, Justice
DO NOT PUBLISH
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