Flores, Rene v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-05-00023-CR ______________________________ RENE FLORES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 228th Judicial District Court Harris County, Texas Trial Court No. 963443 Before Morriss, C.J., Moseley and Carter, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION In this murder case, on remand from the Texas Court of Criminal Appeals, the sole issue before us is whether the trial court's error in instructing the jury on provocation (1) caused some harm to appellant, Rene Flores. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). On original submission of this case before us, we found that the trial court erred in instructing the jury on the law of provocation, in answer to Flores' assertion of self-defense; yet we found the error harmless and affirmed Flores' conviction for murder. Flores v. State, 194 S.W.3d 34 (Tex. App.--Texarkana 2006), vacated & remanded, 224 S.W.3d 212 (Tex. Crim. App. 2007). The Texas Court of Criminal Appeals vacated our opinion because this Court used the wrong standard in conducting our harm analysis. That court remanded this case to us (2) for us to perform a harm analysis in compliance with Article 36.19 of the Texas Code of Criminal Procedure. (3) On further review of the entire record, under the guidance of Article 36.19 and Almanza, we are convinced the charge error caused Flores no harm. Flores testified at trial that, two weeks before the September 23, 2003, fatal shooting for which he was charged and convicted, he and his partner "Ronnie"--Flores said he did not know Ronnie's last name--met Damon "Blue" Barlow, who was to buy eight pounds of marihuana from Ronnie. The meeting happened at a fast food restaurant in Houston. (4) Flores and Ronnie were traveling in Flores' wife's car, and Barlow and Dezavies "Tucker" Taylor were traveling in a white Chevrolet Caprice driven by Taylor. From the restaurant, Taylor, Barlow, and unidentified persons in a gray Buick followed Flores and Ronnie to Ronnie's residence, where Ronnie got the marihuana and put it in the Caprice. Flores and Ronnie then got in the car with Barlow and Taylor, expecting to be paid for the marihuana. Instead, Taylor drove away, ultimately stopping--at Ronnie's instruction--at the home of Flores' mother. Flores testified he got out of the car at his mother's house "to head her off." When Flores returned to the Caprice, Barlow pulled a gun, ordered Ronnie out of the car, and pointed the gun at Flores. The Caprice then sped away, with no money having been exchanged for the marihuana. Flores' brother took Flores and Ronnie back to Ronnie's house where they had left Flores' wife's vehicle. Flores and Ronnie then attempted to locate the Caprice and, in the process, encountered the gray Buick. Flores pursued the Buick, but the passenger in that car started shooting toward them. Flores testified they were shot at nine or ten times before the driver of the Buick was able to elude them. None of the shots fired hit Flores, his wife, or Ronnie; neither did any of the shots hit the vehicle in which they were riding. After this incident, but before the date of the killing, Flores purchased an SKS semiautomatic assault rifle and three boxes of ammunition. On September 23, 2003, Flores, using a fictitious name and a different telephone number, contacted Barlow and told him Flores had marihuana and wondered if Barlow would like to buy it. Flores and Barlow arranged a meeting at another fast food restaurant on Interstate 10. According to Flores, he arranged this meeting only so he could get the money from Barlow for the stolen marihuana. Flores went to this location with a friend, Jerry Thomas, in Thomas' green Toyota Camry. Thomas was driving. Before going, however, Flores placed his SKS semiautomatic assault rifle in the trunk of Thomas' car. Flores admitted at trial that he had no marihuana to sell Barlow on this occasion. On the night of September 23, Barlow and three friends arrived at the restaurant parking lot in the white Chevrolet Caprice, with Barlow in the front passenger seat. According to Flores, the Caprice circled the parking lot and left. According to Anthony Onibokun, who was riding in the back seat of the car with Barlow, they waited at the designated place for about five minutes and, when no one showed up, they left. At any rate, when the Caprice left the parking lot, Flores and Thomas followed it onto Interstate 10. According to Onibokun, someone in a car behind them opened fire on them; Barlow was killed, and the driver and another back-seat passenger were also shot. Photographs admitted into evidence showed several bullet holes in the right front passenger side door as well as on the trunk lid of the Caprice. Onibokun testified that no one in the Caprice had a weapon and that no one in that vehicle fired a shot toward the Camry from which Flores was shooting. There was no damage to the Camry which could confirm that any shots had been fired in its direction. Flores admits in his brief before this Court that "his vehicle was chasing the vehicle in which the deceased was a passenger." Flores testified, however, that during this "chase" someone in the Caprice began shooting at the car in which Flores rode. He said that, in fear and in defense of his life, he climbed to the Camry's back seat, where he was able to access the trunk. He retrieved his rifle from that location and fired five to seven rounds at the Caprice. Barlow died as a result of some of these shots fired by Flores. The trial court's charge to the jury included instructions on the law of self-defense, including the duty to retreat. The court, however, qualified this defense by also instructing the jury on provocation: You are further instructed as part of the law of this case, and as a qualification of the law on self-defense, that the use of force by a defendant against another is not justified if the defendant provoked the other's use or attempted use of unlawful force, unless (a) the defendant abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (b) the other person, nevertheless, continues or attempts to use unlawful force against the defendant. The charge then instructed the jury that, if it found beyond a reasonable doubt that Flores committed some act or used some language, or a combination of both, with the intent "to produce the occasion for shooting Damon Barlow," and if such act or words of Flores were reasonably calculated to, and did "provoke a difficulty" wherein Barlow attacked Flores with deadly force or reasonably appeared to Flores to "so attack [Flores] or to be attempting to so attack [Flores]," and Flores then shot Barlow "in pursuance of his original design," the jury should convict Flores. It has been established that this charge on provocation was error. Flores, 194 S.W.3d at 38, vacated & remanded on other grounds, 224 S.W.3d 212. Where a trial court's charge to the jury contains error, we should analyze the error for harm under the standard of Article 36.19. See Tex. Code Crim. Proc. Ann. art. 36.19. An appellate court will not reverse a conviction or sentence on the basis of jury charge error "unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears that the defendant has not had a fair and impartial trial." Tex. Code Crim. Proc. Ann. art. 36.19. In Almanza, (5) the Texas Court of Criminal Appeals concluded that this language created two separate harm-analysis standards: the first to be used when a timely objection is made to the charge; the second to be used when no such objection appears in the record. The first standard dictates that reversal should occur if the defendant made a timely objection and if there is some harm to the defendant from the error. Id. at 171. Properly preserved jury-charge error requires reversal unless it is harmless. Here, because Flores timely objected to the trial court's inclusion of an instruction on the language of provocation in the jury charge, his conviction must be reversed if he can show any degree of harm. In making this determination, "the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000). The burden of proof lies with the appellant to persuade the reviewing court that he or she suffered some actual harm as a consequence of the charging error, and if he or she is unable to do so, the error will not result in a reversal of the conviction. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). "[T]he presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction. Cases involving preserved charging error will be affirmed only if no harm has occurred." Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (no harm where no definition of reasonable belief); see also Cathey v. State, 992 S.W.2d 460, 466 (Tex. Crim. App. 1999) (failure to instruct jury on accomplice-witness rule harmless error where sufficient evidence to convict defendant as principle). On the other hand, the appellant must demonstrate actual, as opposed to possible, harm. Medina v. State, 7 S.W.3d 633 (Tex. Crim. App. 1999). Significant evidence militating against a defense-requested instruction or finding can render an error harmless. Id. at 642-43. The State began to attack any self-defense theory in opening argument, telling the jury, "you will see that this is not self-defense. You will see that the defendant opened fire with an assault rifle on a car full of people on a freeway that even he admits had innocent people driving on it." The State argued that Flores had arranged the "drug deal" on the night of the killing, based on what had allegedly happened two weeks before, to retaliate against Barlow. Flores argued self-defense in his closing argument. In the State's closing rebuttal, it was urged that Flores had set up the second "buy" in order to retaliate against Barlow. "[Flores] was going there to show everybody that he wasn't going to put up with being robbed. That he was going to retaliate and show everybody that he was tough." Near the end of the State's argument, it returned to Flores' "duty to retreat" and that he could not provoke the acts against which he claimed to be defending himself. In the closing rebuttal, covering about ten pages of argument, the State made at least four references to Flores having planned the encounter and purchasing the gun. Under the unchallenged instruction on self-defense, the jury was instructed to reject Flores' claim of self-defense if it found that "a reasonable person in [Flores'] situation would have retreated before using deadly force." Put another way, the jury could not have found that Flores acted in self-defense if it concluded that a reasonable person--chasing a vehicle down an urban highway and being shot at from the pursued vehicle--would have retreated or broken off the pursuit before using deadly force in self-defense. The erroneously given provocation instruction was, by its terms, a limitation on the self-defense instruction. Our job is to determine whether there was any harm, that is, whether, in the absence of the provocation instruction, there would have been any chance that the jury would have found that Flores acted in self-defense. To find that Flores acted in self-defense, the jury would need to be convinced of two things: (1) that, while the Flores vehicle chased the Barlow vehicle, someone in the Barlow vehicle shot at the Flores vehicle causing Flores to reasonably believe that deadly force was immediately necessary to protect himself and (2) that the situation was such that a reasonable person in Flores' situation would not have retreated before using deadly force in self-defense. Flores has not persuaded us that either question might have been answered in his favor. Therefore, he has not shown harm from the provocation instruction. Flores initiated the encounter in question. He initially set up the false drug transaction with Barlow after having purchased an assault weapon which he brought to that meeting. He chased Barlow down the urban expressway at approximately 10:00 p.m. There was testimony by a passenger in the Barlow vehicle that no shot was fired from the Barlow vehicle and that there were not even any guns in that vehicle. The only contrary testimony came from Flores, who claimed shots came first from the Barlow vehicle and who also claimed that he neither buys nor sells drugs. The State also pointed out, on cross-examination of Flores, that, when he spoke to police immediately after the incident, he said only that their car had been run off the road and said nothing about any shots coming from the other car. There were bullet holes in the Barlow vehicle, but none in the Flores vehicle. The bullet holes in the Barlow vehicle were both in the vehicle's rear and side. The only people shot were in the Barlow vehicle. Flores came into the encounter having every reason to be angry with Barlow; in fact, Flores had taken numerous steps calculated to respond to, even retaliate for, Barlow's theft of drugs from him two weeks earlier. The chase happened on a Houston expressway, and Flores was the pursuer. Nothing suggested that any conditions, such as heavy traffic, would have hindered Flores from stopping, slowing, or exiting the freeway entirely; thus, nothing demonstrated that Flores lacked a reasonable avenue of retreat should he have had any inclination to break off the chase. Nothing suggested that Flores was essentially trapped into using deadly force to defend himself. No evidence or inference suggests that a reasonable person in Flores' situation would not have retreated. On this record, we cannot imagine the jury finding that Flores acted in self-defense, even without the provocation instruction. Therefore, we conclude the provocation instruction caused no harm. We affirm the judgment of the trial court. Josh R. Morriss, III Chief Justice Date Submitted: June 22, 2007 Date Decided: January 3, 2008 Do Not Publish 1. The State's requested instruction on provocation was given immediately following, and as a qualification to, Flores' requested instruction on self-defense and instructed the jury, in essence, that no self-defense by Flores was authorized if he had intentionally provoked the behavior he was allegedly defending against, unless Flores abandoned the encounter or clearly communicated his intent to do so and the other party nonetheless continued or attempted to use unlawful force against Flores. 2. Flores v. State, 224 S.W.3d 212 (Tex. Crim. App. 2007). 3. In our earlier opinion, we analyzed this error using the standard of Rule 44.2(b) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 44.2(b). The Texas Court of Criminal Appeals instructed us this was the wrong standard. Rather, we should have applied Article 36.19 of the Texas Code of Criminal Procedure. 4. This case has been transferred to this Court as part of the Texas Supreme Court's docket equalization program. 5. 686 S.W.2d at 171. " width="16" height="14" border="0"> On appeal, the State contends the trial court improperly weighed the factors required by Barker v. Wingo in reaching its conclusion that Fisher's right to a speedy trial had been violated. 1. Procedural Consideration The traditional method for presenting a speedy trial claim before an indictment is returned is through the filing of a pretrial application for writ of habeas corpus. See, e.g., Ex parte Martin, 6 S.W.3d 524, 524–25 (Tex. Crim. App. 1999). However, our law expressly disavows any requirement that an accused employ any special form or nomenclature for presenting such a claim. See Tex. Code Crim. Proc. Ann. art. 11.03 (Vernon 2005). Nor does our law require a preindictment application be filed in a particular district court of the county of jurisdiction. See Tex. Code Crim. Proc. Ann. art. 11.05 (Vernon 2005). Though the parties have not expressly identified this case as an appeal of a trial court's ruling on a pretrial application for writ of habeas corpus, such is plainly the substance of this appeal (given the tenor of the arguments advanced in both the trial court and this Court) and we shall, therefore, treat this appeal as a habeas matter. A defendant is not entitled to habeas corpus relief if he or she has an adequate remedy at law. Smith v. Gohmert, 962 S.W.2d 590, 593 (Tex. Crim. App. 1998). This rule has been applied to preclude the consideration of a defendant's pretrial application for writ of habeas corpus concerning the constitutional right to a speedy trial. The rationale for the application of this rule is that a defendant has an adequate remedy at law—the right to file a motion to set aside the indictment pursuant to Article 27.03 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 27.03 (Vernon 1989). If the trial court erroneously denies the motion, the defendant may appeal any conviction resulting from the continued prosecution. Smith, 962 S.W.2d at 592 (citing Pope v. Ferguson, 445 S.W.2d 950, 955–56 (Tex. 1969)). The foundation of this rule is from United States v. MacDonald, 435 U.S. 850, 860–61 (1978) ("If . . . an accused [is deprived] of his right to a speedy trial, that loss, by definition, occurs before trial. Proceeding with the trial does not cause or compound the deprivation already suffered."). However, the Court in MacDonald recognized that, when the trial court dismisses the charges based on the speedy trial issue, the State has the statutory right to appeal. Id. at 857 (recognizing that United States v. Marion, 404 U.S. 307, 310–12 (1971) authorized such an appeal). In this case, when Fisher filed his motion, he could not ask for the dismissal of the indictment, as none was pending. Nevertheless, an indictment was filed and was pending at the time of the hearing. Accordingly, when the trial court granted the motion and dismissed the charges, the State could properly invoke its statutory right of appeal as the dismissal order constituted a final, dispositive, and appealable order. Accord MacDonald, 734 U.S. at 857, 861. 2. Applicable Law and the Appellate Standard of Review on Appeal "The Sixth Amendment to the United States Constitution guarantees the accused's right to a speedy trial." Zamorano v. State, 84 S.W.3d 643, 647 n.5 (Tex. Crim. App. 2002) (citing Barker, 407 U.S. at 515; Dickey v. Florida, 398 U.S. 30, 37 (1970); Smith v. Hooey, 393 U.S. 374, 377–78 (1969); Klopfer v. N. Carolina, 386 U.S. 213, 223 (1967)). "In addition, Article I, § 10 of the Texas Constitution guarantees the accused in all criminal prosecutions the right to a speedy and public trial." Zamorano, 84 S.W.3d at 647 & n.6 (further referencing Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 2005) ("[i]n all criminal trials the accused shall have a speedy public trial by an impartial jury."). When a defendant makes a claim that he or she has been denied the right to a speedy trial, the court reviewing that claim must use the four-part test from Barker: the court must consider, under the totality of the circumstances, "the length of the delay, the State's reason for delay, whether the delay was due to lack of diligence on the part of the State, and whether the delay caused harm to the accused." Ex parte Martin, 33 S.W.3d 843, 845 (Tex. App.—Austin 2000), pet. dism'd, improvidently granted, 46 S.W.3d 932 (Tex. Crim. App. 2001); see also Shaw v. State, 117 S.W.3d 883, 888–89 (Tex. Crim. App. 2003). These four "Barker factors" are then assigned varying weights by the court according to the individual facts of the case, placed on the appropriate sides of the proverbial scales of justice, and weighed with and against each other to determine if, on balance, the accused's right to a speedy trial has been violated. See, e.g., Holmes v. State, 938 S.W.2d 488, 489–91 (Tex. App.—Texarkana 1996, no pet.). In the case now before us, the State contends the trial court erred in weighing the Barker factors. We give deference to the trial court in evaluating factual issues and drawing inferences from the facts. Kelly v. State, 163 S.W.3d 722, 726–27 (Tex. Crim. App. 2005). However, legal questions are reviewed de novo. Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997). The balancing test as a whole is purely a legal question. Id. 3. The Barker Factors and the Evidence Concerning Each We now turn to our analysis of the Barker factors, mindful that "'[n]o one factor possesses talismanic qualities . . . .'" Zamorano, 84 S.W.3d at 648 (quoting Barker, 407 U.S. at 533). A. The Length of the Delay First, the length of the delay is to be considered. Barker, 407 U.S. at 530; Zamorano, 84 S.W.3d at 648–49. "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker, 407 U.S. at 530. The period of delay "is measured from the time the defendant is arrested or formally accused." Shaw, 117 S.W.3d at 889 (citing Marion, 404 U.S. at 313). Generally, a speedy trial claim will not be considered until a sufficient amount of time has elapsed so as to present a prima facie case that the State's continued delay is unreasonable. Shaw, 117 S.W.3d at 889 (citing Doggett, 505 U.S. at 651–52; Barker, 407 U.S. at 530). Once the defendant makes a prima facie showing, however, the reviewing court must consider this length of delay as one factor among the remaining factors in evaluating the accused's claim. Shaw, 117 S.W.3d at 889 (citing Doggett, 505 U.S. at 652). Fisher remained in jail for almost ten months from the time of his arrest on these felony charges until the State secured an indictment. On appeal, the State properly concedes this lapse of time is sufficient to establish a prima facie showing of an unreasonable delay. Cf. State v. Owens, 778 S.W.2d 135, 136–38 (Tex. App.—Houston [1st Dist.] 1989, pet. ref'd) (seven-month delay established prima facie showing). We, therefore, must determine what weight, if any, should be assigned to this first Barker factor and then proceed to the remaining factors. Barker, 407 U.S. at 530; Zamorano, 84 S.W.3d at 648–49. Ten months is certainly a long time to wait for the State to make any effort to secure an indictment—especially in what appears to be a "run-of-the-mill" narcotics case. However, when considering the length of delay only, ten months is not nearly as long as many cases that, after analyzing all the factors, have found no violation of the speedy trial requirement. See, e.g., Dragoo v. State, 96 S.W.3d 308 (Tex. Crim. App. 2003) (three and one-half years); State v. Munoz, 991 S.W.2d 818 (Tex. Crim. App. 1999) (seventeen months); Shaw, 117 S.W.3d 883 (thirty-eight months); Kelly, 163 S.W.3d 722 (seventeen months). We do not believe this ten-month period is such a long time that it should be accorded more than a slight weight against the State. B. The State's Proffered Reason Second, we must consider the reason or reasons the government assigns to justify the delay. Barker, 407 U.S. at 531; Zamorano, 84 S.W.3d at 648, 649–50. Sometimes the government's justification(s) under this second prong should be given greater or lesser weight, depending on the merit of the reason(s). Barker, 407 U.S. at 531. "A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government." Id. (referencing Marion, 404 U.S. at 325; see Pollard v. United States, 352 U.S. 354, 361 (1957)). A "neutral" justification, such as an overcrowded docket or mere negligence, "should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Barker, 407 U.S. at 531. "Finally, a valid reason, such as a missing witness, would serve to justify appropriate delay." Id. Here, the State blamed the delay in seeking an indictment for this narcotics charge on a backlog at the Texas Department of Public Safety's Tyler crime laboratory. The State argued before the trial court (as it does on appeal) that it could not "file an indictment . . . when [it did] not know the true nature of the substance to be alleged in that indictment." This would appear to be a meritorious justification for delay, especially when (as was the case here) there is no evidence in the record that the arresting officers had conducted any "field tests" that might otherwise give them a preliminary confirmation as to the identity of the suspected controlled substance. See, e.g., Young v. State, 183 S.W.3d 699, 704 (Tex. App.—Tyler 2005, pet. ref'd). Nevertheless, there are several problems with this proffered excuse. First, the State submitted the drugs to the laboratory for testing December 30, 2004. Thus, it appears the initial nearly two-month delay was directly attributable to the State's failure to submit the drugs for analysis, not to the crime laboratory. Second, as both this State's Third Court of Appeals and the United States Supreme Court have noted, the State's "unreasonable delay" in a run-of-the-mill criminal case cannot be justified merely by suggesting that the State has a backlog of cases or a shortage of staff. Barker, 407 U.S. at 538 (White, J., concurring); Martin, 33 S.W.3d at 846–47. "The government must bear responsibility for failing to provide adequate resources to law-enforcement agencies." Martin, 33 S.W.3d at 847. Third, the State's own laboratory report indicated the testing was finished by June 9, 2005—a date nearly three months before the State finally sought or obtained an indictment. Thus, it would seem that nearly an additional three months of delay could not serve to excuse the State's delay in seeking an indictment from the grand jury. Finally, there is evidence in the record that the State does not always wait for the results of laboratory testing in drug cases. Fisher faced two other misdemeanor charges (one for possession of marihuana, the other for possession of a dangerous drug ) stemming from the same November 10, 2004, arrest. Both charges were filed in Gregg County's County Court at Law Number 1 in 2004, apparently without the need for first receiving any confirmation from the Tyler crime laboratory about the identity of the alleged dangerous drug or the alleged weight of the marihuana. Accordingly, we cannot conclude the State's proffered reason for delay—a backlog in the Tyler crime laboratory—entirely justifies the nearly ten-month delay in seeking and obtaining an indictment for the narcotics charges. Yet, in the realm of speedy trial jurisprudence, ten months is on the low end of the scale of violations, and it is only slightly longer than the time required to establish a prima facie case. We, therefore, believe this second Barker factor weighs only slightly against the State's case involving the narcotics charges. C. Fisher's Efforts to Assert His Speedy Trial Right Next, the reviewing court should consider the timeliness of the defendant's assertion of his or her right to a speedy trial. Barker, 407 U.S. at 529, 531–32; Zamorano, 84 S.W.3d at 648, 651–52. This prong of the analysis permits the reviewing court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client, or from a situation in which no counsel is appointed. It would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection. Barker, 407 U.S. at 529. Fisher did not assert his right to a speedy trial until August 26, 2005. This was after he had spent over nine months in jail. The record before us also reveals Fisher made no other efforts to obtain a pretrial release while the State awaited the laboratory results. Fisher did not request an examining trial. See Tex. Code Crim. Proc. Ann. art. 16.01 (Vernon 2005). He did not file a motion seeking a reduction in bond or release on personal recognizance after the State failed to secure an indictment within ninety days of his arrest. See Tex. Code Crim. Proc. Ann. art. 17.151 (Vernon Supp. 2005). And there is no evidence he had attempted to resolve the charges with the State without the necessity of an indictment. See Tex. Code Crim. Proc. Ann. art. 21.20 (Vernon 1989) (State may charge by way of filing information); Chapple v. State, 521 S.W.2d 280, 282 (Tex. Crim. App. 1975) (defendant may waive right to be tried on indictment). Fisher argued in the trial court, as he now does on appeal, that he has no obligation to ask for an examining trial, a bond reduction, or other relief. While there is some logic to such argument in the context of the usual trial process (where, for example, the State has the burden of proof in a jury trial and our law places no affirmative duty on defendants to request examining trials or bond reductions in every case), Fisher's argument regarding this third factor is inconsistent with the express requirements of Barker itself. Stated differently, this third Barker factor requires the reviewing court to look for affirmative evidence that the accused asserted his or her right to a speedy trial with persistence and timeliness; it makes no requirement that the reviewing court look toward the State's conduct in evaluating this prong of Barker. Accordingly, to the degree Fisher now attempts (as he did in the trial court) to shift the focus of our analysis under this third Barker factor away from his actions (or lack thereof) and toward the State's conduct, Fisher is mistaken. See Barker, 407 U.S. at 529, 531–32; Zamorano, 84 S.W.3d at 651–52. The record shows that Fisher made no effort to assert his right to a speedy trial—or otherwise press the State for movement regarding his felony charges—for almost ten months. We agree with the State that this factor should weigh against Fisher. Given that the near-ten-month delay is only slightly past the threshold for making a prima facie showing to trigger the Barker inquiry, we conclude this third factor to be only of a slight weight—against Fisher's claim of being denied a speedy trial. D. Evidence of Prejudice to Fisher Caused by the Delay Fourth, the trial court should determine whether there is evidence of prejudice to the accused attributable to the State's delay. Barker, 407 U.S. at 531–32; Zamorano, 84 S.W.3d at 648, 652–54. This factor is often the most elusive and difficult to quantify. "Prejudice . . . should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect." Barker, 407 U.S. at 532. There are three such interests: "(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." Id. Of these three interests, the last is the most important "because the inability of a defendant adequately to prepare his [or her] case skews the fairness of the entire system." Id. No consideration need be given to the second subfactor as there was no evidence presented at the hearing on the motion to dismiss and nothing was presented showing Fisher's anxiety or concern. Clearly, the most cogent argument of prejudice is that of pretrial incarceration. Fisher was incarcerated for more than nine months before filing the motion to dismiss. Therefore, he suffered a form of prejudice that a speedy trial was designed to protect. In weighing the degree of prejudice, we must also consider that other avenues were available to Fisher to ameliorate this type of prejudice—specifically Article 32.01 of the Texas Code of Criminal Procedure. Article 32.01 authorizes the release of a defendant on or before the last day of the next term of court after the 180th day of confinement, when no indictment or information is filed. Tex. Code Crim. Proc. Ann. art. 32.01 (Vernon Supp. 2005). "By enacting Article 32.01, the legislature created a right in the accused to be free from the 'incidental punitive effect' of incarceration or being held to bail if the State is unable to obtain an indictment within a specified period of time." State v. Condran, 951 S.W.2d 178, 189 (Tex. App.—Dallas 1997), pet. dism'd, 977 S.W.2d 144 (Tex. Crim. App. 1998). Fisher never attempted to invoke Article 32.01. The statements presented to the trial court at the hearing indicate Fisher was represented by counsel since "early on." That remedy, while not affording Fisher a dismissal with prejudice (as does a finding of a speedy trial violation), would have provided a method to avoid some of the pretrial incarceration. Other cases, involving lengthier pretrial incarceration than is present here, have held on the facts of each case that there was no speedy trial violation. In Munoz, the defendant had been incarcerated for seventeen months and the explanation for the delay was due to crowded dockets and plea negotiations. Munoz, 991 S.W.2d at 822. The speedy trial motion was filed after fifteen months of the seventeen-month delay. There was no showing of impairment of the defense. The Texas Court of Criminal Appeals found it "easy" to determine that, under those facts, there was no speedy trial violation. In Meyer v. State, 27 S.W.3d 644 (Tex. App.—Waco 2000, pet. ref'd), the defendant had been in jail for twenty-three months; no valid reason was given for the delay; the speedy trial motion was properly asserted; and the court of appeals found only minimal prejudice from the incarceration and denied the speedy trial claim. On appeal, the entire substance of Fisher's argument with respect to this fourth factor reads as follows: The State concedes that a delay of over eight months from arrest to trial is presumptively prejudicial. . . . Without an indictment the Appellee has no notice of what he may have to defend against. . . . Here, the Appellee suffered a presumptively prejudicial delay, even as measured from arrest to trial, without even the benefit of notice that would allow him to prepare a defense - as the state constitution gives him the right to have. First, we disagree with Fisher's understanding of the State's concession on appeal. In its appellate brief, the State, citing Harris, 827 S.W.2d at 956, acknowledged "that a delay of more than eight months is sufficient to require an inquiry into all of the balancing tests." We do not interpret this acknowledgment by the State as a concession that prejudice is presumed by this period of delay. Second, Fisher's brief otherwise offers no citation to the record and cites no authority for the proposition that a ten-month delay could ever be sufficient to presume prejudice. Nor has our research uncovered any caselaw stating a ten-month delay is, without any additional consideration or evidence, sufficient to allow a presumption of prejudice. In Barker, the United States Supreme Court found there was minimal evidence the accused suffered any prejudice as a result of Kentucky's five-year delay in prosecuting him, even though he was incarcerated for ten months during the delay. Of course, Barker was prejudiced to some extent by living for over four years under a cloud of suspicion and anxiety. Moreover, although he was released on bond for most of the period, he did spend 10 months in jail before trial. But there is no claim that any of Barker's witnesses died or otherwise became unavailable owing to the delay. The trial transcript indicates only two very minor lapses of memory -- one on the part of a prosecution witness -- which were in no way significant to the outcome. 407 U.S. at 534. Finally, we review the record for any evidence that Fisher's defense of the case has been impaired—the most important consideration of the three prongs of the prejudice factor because it could affect the merits of the case and "skews the fairness of the entire system." See id. at 532. Fisher presented no evidence that the defense of his case has been in any way prejudiced by the ten-month delay. We have independently reviewed the record in this case, and we see no evidence that Fisher's ability to defend himself against the State's impending charges was prejudiced at all by the State's delay in this case. There was no evidence, circumstantial or direct, that any witnesses for Fisher had died or suffered memory loss. There is no suggestion anywhere in the record that exculpatory evidence has been lost or destroyed due to any delay. Nor is there any suggestion in the record that the delay might have increased the likelihood of Fisher receiving a more severe punishment should he be found guilty. This prong, therefore, weighs moderately against Fisher. 4. Weighing of the Barker Factors Finally, the reviewing court must consider the four Barker factors in the aggregate, along with any other relevant circumstances as may be known by the reviewing court. Barker, 407 U.S. at 533; Zamorano, 84 S.W.3d at 648, 654–55. To do this, the court should first evaluate the strength of each of the four Barker factors and then balance the respective strengths of those factors against the relative weights of the remaining factors "in light of the conduct of both the prosecution and the defendant." Zamorano, 84 S.W.3d at 648; see also Barker, 407 U.S. at 530. As previously stated, the length of the delay—nearly ten months—weighs slightly against the State and in Fisher's favor. The State's proffered explanation—a crime laboratory backlog—does not justify the entire delay. We, therefore, conclude the second Barker factor slightly favors Fisher's claim on these drug charges. But Fisher's failure to make any tangible efforts to assert his speedy trial right (other than the single motion, which was granted by the trial court) or to avail himself of other remedies weighs slightly against Fisher's claim. Finally, in weighing the overall prejudice factor, we note that the most important subpart is whether Fisher's case has been impaired, and there is no evidence of such impairment. Likewise, there is no prejudice shown in anxiety or concern of Fisher. So, two of the interests that the speedy trial right is intended to protect have not been affected, including the most important interest (impairment of defense). We further must weigh Fisher's pretrial incarceration against his failure to assert other remedies that could have alleviated a portion of the incarceration. Overall, in considering the relative weights of all three subfactors of prejudice, we do not find that it rises to a level favoring Fisher's claim of a violation of the speedy trial right. After considering the relative weights of these competing Barker factors, along with the other relevant circumstances apparent from the record before us, we conclude the balance of the Barker factors weighs against Fisher's claim of a speedy trial violation. We, therefore, reverse the judgment of the trial court and remand this case for further proceedings in accordance with this opinion. Jack Carter Justice Date submitted: May 18, 2006 Date decided: June 20, 2006 Publish