State v. Rodolfo Delgado

NUMBER 13-05-00083-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG THE STATE OF TEXAS, Appellant, v. RODOLFO DELGADO, Appellee. On appeal from the County Court at Law No. 1 of Hidalgo County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Benavides Memorandum Opinion by Chief Justice Valdez This is an appeal by the State from the trial court's dismissal of its case against appellee, Rodolfo Delgado, for driving while intoxicated ("DWI"), based on a violation of his right to a speedy trial. In a single issue, the State contends that the trial court erred in its determination that appellee's right to speedy trial had been violated. We affirm. I. BACKGROUND The record before us consists of numerous motions presented to the trial court and transcripts of various hearings held between September 8, 2003 and January 24, 2005. As the sequence of events is important, the following time-line is necessary. September 21, 2002 Appellee was arrested for driving while intoxicated. January 21, 2003 State files information formally charging appellee with misdemeanor driving while intoxicated. May 30, 2003 Appellee files a waiver of arraignment, in which appellee enters a plea of not guilty. June 4, 2003 Order granting waiver of arraignment filed with notation of "status hearing" set for September 8, 2003. September 8, 2003 Trial court conducts its first "status hearing" and, at the request of defense counsel, the case is reset for November 12, 2003, approximately 60 days. October 27, 2003 Appellee files (1) motion to suppress statements, (2) motion to list State's witnesses, (3) motion in limine, and (4) motion for discovery and inspection of evidence. Criminal docket sheet indicates that the November 12, 2003, hearing was reset "by agreement of the parties" "to allow State witnesses to become available for motions filed or to be filed to proceed to a hearing." Hearing reset for May 7, 2004. April 29, 2004 Appellee files (1) motion to quash; (2) motion for return of illegally seized items; (3) motion to disqualify Hidalgo County District Attorney Rene Guerra or in the alternative to dismiss; (4) motion to produce exculpatory and mitigating evidence; (5) accused motion for discovery in DWI prosecution; (6) a DWI motion to suppress; and a (7) motion for deposition of arresting officers in DWI prosecution. May 5, 2004 Appellee files motion to set aside complaint for failure to afford speedy trial. May 7, 2004 Trial court conducts hearing on various pretrial motions filed by appellee. The court decides first to hear appellee's motion to disqualify Hidalgo County District Attorney Rene Guerra. After hearing arguments from both sides, the trial court grants appellee's motion to disqualify, but does not appoint a prosecutor pro tem. All other pending motions were reset for a status hearing set for June 8, 2004. June 4, 2004 State files a motion for stay pending writ of mandamus with the trial court. June 8, 2004 Trial court holds its second "status hearing" and denies State's motion for stay pending writ of mandamus, but resets the case for August 24, 2004, because it felt it was "appropriate for the court of appeals to review this mandamus." Defense counsel repeatedly urges the trial court to appoint a prosecutor pro tem so that appellee's motion for speedy trial could be heard. No special prosecutor is appointed. June 24, 2004 State seeks mandamus relief from this Court. August 19, 2004 Mandamus relief denied. August 24, 2004 Trial court holds its third "status hearing" where the State informs the court that it intends to have the disqualification reviewed by the Court of Criminal Appeals. Defense counsel again urges the trial court to appoint a prosecutor pro tem "so [appellee] can have his day in court." The trial court agrees, and resets the case for September 29, 2004. August 26, 2004 Trial court appoints a prosecutor pro tem. September 19, 2004 State seeks mandamus relief from the Texas Court of Criminal Appeals. September 27, 2004 Court of Criminal Appeals grants State's request to stay the trial proceedings. December 15, 2004 Court of Criminal Appeals grants petition for mandamus relief. December 16, 2004 Trial court withdraws its disqualification of district attorney's office and sets a hearing for January 24, 2005. January 24, 2005 Trial court hears appellee's motion to set aside complaint for failure to afford speedy trial. Appellee is called to testify in support of his motion. After hearing appellee's testimony, and arguments made by both the State and defense, the trial court grants appellee's motion for speedy trial and dismisses the complaint against appellee. II. APPLICABLE LAW A. Standard of Review When reviewing a trial court's decision on a speedy trial claim, an appellate court applies a bifurcated standard of review. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999); State v. Jones, 168 S.W.3d 339, 345 (Tex. App.-Dallas 2005, pet. ref'd). We review legal issues de novo but give deference to a trial court's resolution of factual issues. Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005); Munoz, 991 S.W.2d at 821; Jones, 168 S.W.3d at 345. We review a speedy trial claim in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003); Jones, 168 S.W.3d at 345. Under this standard of review, deference must be given not only to a trial court's resolution of disputed facts, but also to the drawing of reasonable inferences from the facts. Kelly, 163 S.W.3d at 726. Deference must be given to a trial court's finding, even when those findings do not turn on the assessment of credibility and demeanor. Kelly, 163 S.W.3d at 726. We must uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. Shaw, 117 S.W.3d at 889; Munoz, 991 S.W.2d at 821; Jones, 168 S.W.3d at 345. If a violation of the defendant's right to a speedy trial is established, the only possible remedy is dismissal of the prosecution. Strunk v. United States, 412 U.S. 434, 440 (1973); Dragoo, 96 S.W.3d at 313; Jones, 168 S.W.3d at 346. B. Right to Speedy Trial The Sixth Amendment to the United States Constitution provides, in relevant part, that "in all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." U.S. Const. amend. VI; Barker v. Wingo, 407 U.S. 514, 515 (1972). This right was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. XIV; see Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). The Texas Constitution likewise provides that "in all criminal prosecutions the accused shall have a speedy . . . trial." Tex. Const. art. 1, § 10. The Texas Court of Criminal Appeals has traditionally analyzed state constitutional claims of the denial of a speedy trial under the factors established in Barker. See Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). The primary burden is on the prosecution and the courts to insure that defendants are speedily brought to trial. See Chapman v. Evans, 744 S.W.2d 133, 136-37 (Tex. Crim. App. 1988)(orig. proceeding) (citing Turner v. State, 504 S.W.2d 843, 845 (Tex. Crim. App. 1974); McKinney v. State, 491 S.W.2d 404, 407 (Tex. Crim. App. 1973)). In determining whether one has been denied his federal or state right to a speedy trial, a court must use a balancing test to weigh the conduct of both the State and the defendant. See Shaw, 117 S.W.3d at 888 (citing Barker, 407 U.S. at 530). The relevant factors to be weighed include, but are not necessarily limited to (1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of his speedy trial right, and (4) any prejudice to the defendant resulting from the delay. Id. at 888-89. We turn now to our de novo review and independent weighing and balancing of the relevant Barker factors. III. ANALYSIS A. Length of Delay The length of delay is a triggering mechanism for analysis of the other three Barker factors. Barker, 407 U.S. at 530-33; Munoz, 991 S.W.2d at 821. Unless the delay is presumptively prejudicial, we need not inquire into the other Barker factors. Id. Generally, a delay of eight months or longer is considered "presumptively prejudicial" and triggers speedy trial analysis. State v. Rangel, 980 S.W.2d 840, 843 (Tex. App.-San Antonio 1998, no pet.). However, the length of delay that will invoke such an inquiry depends upon the circumstances of each case. Zamorano, 84 S.W.3d at 648-49. The Supreme Court has noted "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Barker, 407 U.S. at 531; Zamorano, 84 S.W.3d at 649. If the accused demonstrates the time from accusation to trial "has crossed the threshold dividing 'ordinary' from 'presumptively prejudicial' delay, a court must then consider the extent to which that delay stretches beyond the bare minimum needed to trigger judicial examination of the claim." Zamorano, 84 S.W.3d at 649. Therefore, a "speedy trial analysis depends first upon whether the delay is more than 'ordinary'; if so, the longer the delay beyond which is ordinary, the more prejudicial that delay is to the defendant." Id. The length of delay for speedy trial purposes is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 313 (1971). Appellee was arrested on September 21, 2002. On May 30, 2003, appellee was arraigned, at which time, he filed a waiver of arraignment. Thus, a period of approximately eight months occurred from the time appellee was arrested to the time that he entered a plea of not guilty. This period of time alone is sufficient to trigger a speedy trial inquiry. The State concedes, however, that from the time that appellee was arrested, to the time that appellee first demanded a speedy trial (May 5, 2004), an interval of approximately nineteen and a half months, is presumptively prejudicial. Indeed, the record indicates that appellee's motion for speedy trial was not heard until January 24, 2005, a period of two years and four months from the time appellee was arrested. Because the State concedes, and we agree, that the delay is presumptively prejudicial, we will consider the other three speedy trial factors. However, because this delay stretched far beyond the minimum needed to trigger a speedy trial inquiry, we will weigh this factor heavily in favor of finding a violation of the speedy trial right. Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 314; Zamorano, 84 S.W.3d at 649. B. Reasons for delay. The State bears the burden of justifying the delay. Rangel, 980 S.W.2d at 843. Courts assign different weights to different reasons for a delay. Dragoo, 96 S.W.3d at 314. A deliberate attempt to delay a trial is weighed heavily against the State, while more neutral reasons, such as negligence or overcrowded dockets, are weighed less heavily. Zamorano, 84 S.W.3d at 649. When the record is silent regarding the reasons 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. Dragoo, 96 S.W.3d at 314. Finally, a valid reason justifies appropriate delay. Id. In this case, there are four segments of time that must be accounted for. September 21, 2002 to June 4, 2003 First, a period of eight months occurred between the date of appellee's arrest, September 21, 2002, and the date of his arraignment, May 30, 2003. The State does not provide, nor does the record indicate, a justification for the delay in having appellee formally arraigned. We hold that the eight month delay between the date of appellee's arrest and the date of his arraignment weighs against the State. June 4, 2003 to November 12, 2003 Second, on June 4, 2003, the trial court filed its order granting appellee's waiver of arraignment with a notation indicating that a "status hearing" was to be held on September, 8, 2003. At the September 8th hearing, the prosecutor suggested that two "pre-trial dates" be given by the trial court; one in "the fall of [2003]" and one in the "first part of 2004." The State argued that a pre-trial date of "fall of 2003," and an alternate pre-trial date of early 2004 are necessary due to the possibility that appellee's counsel might exercise his legislative privilege. The prosecutor also noted that a pre-trial diversion was also being contemplated by defense counsel. Appellee's counsel acknowledged that a pretrial diversion was a possibility, and asked the court for "60 days to pursue that and come back on status that may be dispositive in this case." The trial court agreed and reset the case for a November 12, 2003 "status hearing." The State argues that the 60 day delay was the result of "good faith plea negotiations" and therefore should not be weighted against the State. We agree. Because the 60 day delay was awarded at appellee's request, we cannot hold the State accountable for this 60 day period. November 12, 2003 to May 7, 2004. Third, the record indicates that the November 12, 2003 hearing was reset to May 7, 2004, an interval of approximately six months. The State concedes to requesting the reset but states that because the handwritten criminal docket sheet indicates that the reset was agreed to by "the parties," this period of delay should not be held against it. Appellate courts are skeptical of docket sheet notations. See Garcia v. State, 45 S.W.3d 733, 736 (Tex. App-Corpus Christi 2001, no pet.); State v. Shaw, 4 S.W.3d 875, 878 (Tex. App.-Dallas 1999, no pet.) (holding a docket sheet entry does not become part of the record because it is inherently unreliable); Rodriguez v. State, 834 S.W.2d 592, 595 (Tex. App.-Houston [1st Dist.] 1992), pet. granted in part & ref'd in part; remanded in part on other grounds, 844 S.W.2d 744 (Tex. Crim. App. 1992) (holding docket sheets are not evidence upon which the parties may rely on appeal). The record is entirely silent as to what exactly happened on November 12. Aside from the handwritten notation on the docket sheet, there is no evidence of any type of written agreement by the parties, nor any type of request to reset, either oral or written, by the State. We may not presume an agreement exists when the record does not reflect that it ever did. See Rodriguez, 834 S.W.2d at 595 (court refused to presume that the trial court ever refused to accept a plea bargain.); Bell v. State, 734 S.W.2d 83, 83 (Tex. App.-Austin 1987, no pet.) (court refused to presume from docket sheet notation indicating that a complaint was filed). In the alternative, the State attempts to justify this period with the following: "a valid reason, such as a missing witness, will justify a delay and weigh in the State's favor." Nothing in the record, aside from the docket notation, however, indicates that the State had trouble locating or identifying witnesses, nor did the State attempt to make this argument to the trial court. Without more than a handwritten notation of an agreement to reset, and because nothing in the record indicates that the State had trouble locating its witnesses, we hold that the State has failed to meet its burden in justifying this period of delay. We hold this sixth month period against the State. May 7, 2004 to December 15, 2004 Fourth, on May 7, 2004, a full year and seven months after appellee was arrested, a hearing was held by the trial court in order to address various pre-trial motions filed by appellee. The first motion heard by the trial court was appellee's motion to disqualify Hidalgo County District Attorney Rene Guerra from prosecuting the case against appellee. After hearing arguments from both sides, the trial judge granted the motion and disqualified the Hidalgo County District Attorney's Office from prosecuting the case. The trial court further held that it would appoint a special prosecutor and, in the interim, all other pending motions filed by appellee would be "left for whomever takes over the prosecution of this matter." The trial court then reset the matter for June 8, 2004, giving the State 32 days to have its decision reviewed by the court of appeals. (1) On June 4th, the State filed a motion for stay pending writ of mandamus. The State then sought an order on its motion to stay at the June 8th status hearing. At the hearing, the trial court voiced its concern with the State's inability to get its decision to disqualify the district attorney's office reviewed by the court of appeals within the thirty days it had provided. The trial court "genuinely expected that if there was to be a writ of mandamus it would have been filed . . . by now;" and it felt the thirty days it had provided was "a very reasonable timetable to get this turned around and reviewed." Although the trial court denied the State's motion, it did reset for an additional status hearing to be held on August 24, 2004, because it felt it was "appropriate for the court of appeals to review the mandamus." The State offered no explanation why after thirty-two days no mandamus had yet been filed. The State eventually filed its writ of mandamus with this Court on June 24, 2004, a full forty-eight days after the motion to disqualify was granted. Mandamus relief was subsequently denied on August 19, 2004. On August 24, 2004, the trial court held its second status hearing since disqualifying the district attorney's office from prosecuting this case. At the hearing, the State informed the trial court that it intended to have the disqualification issue reviewed by the Texas Court of Criminal Appeals. On September 19, 2004, the State sought mandamus relief from the Texas Court of Criminal Appeals and was granted relief on December 15, 2004. The State's challenge to the trial court's ruling granting appellee's motion to disqualify accounted for over seven months of delay. The State argues that this seven month period was occasioned by appellee's own efforts and cannot be attributed to the State. We first note that it took the State forty-eight days to file its initial mandamus. We also note that it took the State an additional thirty days to seek review from the Court of Criminal Appeals after this Court denied mandamus relief. While periods of appellate review cannot be directly attributed to the State, see Emery v. State, 215 S.W.2d 702, 709 (Tex. Crim. App. 1994); Easley v. State, 564 S.W.2d 742, 745 (Tex. Crim. App. 1978), we recognize that the trial court repeatedly expressed its frustration with the State's pace in getting its ruling to disqualify the district attorney's office reviewed. Based on this factor alone, we conclude that the trial court could have reasonably inferred that part of the seven month delay was due to lack of diligence on the part of the State. See Kelly, 163 S.W.3d at 726. Overall, a period of two years and two months occurred between the time appellee was arrested (September 21, 2002) and the time the State was granted mandamus relief from the Court of Criminal Appeals (December 15, 2004). Because the State offers no justification for the initial eight month delay, we attribute this period of delay to the State. Moreover, because the record is devoid of any indication that the State was having trouble locating its witnesses, we also attribute an additional six months of delay to the State. Finally, we note the trial court's displeasure in the State's pace in getting its ruling to disqualify the district attorney's office from prosecuting this case reviewed. Accordingly, based on the evidence presented, the trial court's actual and implied findings, and the relevant law, we find the State did not carry its burden to prove a valid reason for a total of fifteen months, and, based on the facts as provided, caused some delay in getting the trial court's ruling to disqualify reviewed. While this finding weighs against the State, it does so less heavily than a deliberate attempt to delay. See Munoz, 991 S.W.2d 822 (citing Barker, 407 U.S. at 531). C. Assertion of Speedy Trial Right A defendant's assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether the defendant was being deprived of the right. Barker, 407 U.S. at 531-32. A defendant has some responsibility to assert his right to a speedy trial, and his failure to do so strongly indicates that he did not really want a speedy trial. See Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App.1992). The manner in which a defendant raises a speedy-trial complaint is also significant. Although a motion to dismiss notifies the State and the court of the speedy-trial claim, a defendant's motivation in asking for dismissal rather than a prompt trial is clearly relevant, and may sometimes attenuate the strength of his claim. Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983). Here, nineteen-and-a-half months after his arrest, appellee filed a motion to set aside the complaint for failure to afford his constitutional right to a speedy trial. The State argues that appellant, by waiting nineteen-and-a-half months before filing his motion to dismiss, did not timely assert the right. We disagree. The record indicates that appellee filed his motion for speedy trial on May 5, 2004, two days prior to the scheduled May 7th "status hearing." At the hearing, the trial judge decided to hear appellee's motion to disqualify the Hidalgo County District Attorney before proceeding with another motion. After granting appellee's motion to disqualify, the court held that it would appoint a special prosecutor and, in the interim, all other pending motions filed by appellee would be "left for whomever takes over the prosecution of this matter." As noted above, it took the State over seven months to get this ruling reviewed by this Court and the Texas court of criminal appeals. Within this time period, the record indicates that appellee repeatedly urged the trial court to appoint a special prosecutor so that appellee's motion for speedy trial can be heard. (2) This is not a case where appellee sat idly by and never asked for a hearing. Cf. Cook v. State, 741 S.W.2d 928, 940 (Tex. Crim. App. 1987) (assertion-of-right factor weighs against appellant where "there is no evidence beyond the two motions for speedy trial filed with the district clerk that appellant asserted his right to a speedy trial by requesting hearings to present evidence on the matter."), vacated and remanded on other grounds, 488 U.S. 807 (1988)). A defendant has no duty to bring himself to trial, and the primary burden rests upon the courts and the prosecution to insure that cases are brought to trial. Barker, 407 U.S. at 527. Appellee repeatedly urged the court to appoint a prosecutor pro tem so that his motion for speedy trial could be heard. These repeated assertions weigh in appellee's favor. See Zamorano, 84 S.W.3d at 652. The State further argues that by filing a motion to dismiss, appellant showed that he was not truly interested in a speedy trial. That appellee's speedy trial claim was framed as a motion to dismiss "potentially weakens [his] case, as 'a [request for a] dismissal instead of a [request for a] speedy trial weakens [a speedy trial] claim because it shows a desire to have no trial instead of a speedy trial.'" Id. at 651 n. 40 (quoting Parkerson v. State, 942 S.W.2d 789, 791 (Tex. App.-Fort Worth 1997, no pet.)). "But 'each case must turn on its own facts, and the particular relief a defendant seeks is but one fact to consider.'" Id. (quoting Phillips, 650 S.W.2d at 401). The record indicates that the trial court did held its first status hearing on September 8, 2003, approximately one year after appellee was arrested. Its next status hearing, scheduled for November 11, 2003, was reset, at the State's request, for May 7, 2004. Thus, a second status hearing did not occur for over 594 days after appellee was arrested. Counsel may legitimately feel that a long delay has caused a client so much prejudice, "even if the State is belatedly ready to move promptly," that the delay warranted dismissal. Phillips, 650 S.W.2d at 401. Given that 592 days had passed when appellee filed his motion for speedy trial, coupled with the fact that this is a non-complex misdemeanor DWI case, the fact that appellee couched his motion for speedy trial in terms of a dismissal is understandable. In sum, because appellee repeatedly urged the trial court to hear his speedy trial claim, and because the particular circumstances of this case justify appellee's request for a dismissal, we find this factor weighs in appellee's favor. D. Prejudice Resulting From Delay Prejudice, the fourth factor, is to be considered in light of the interests that the right to a speedy trial was designed to protect. Barker, 407 U.S. at 532. These interests include (1) prevention of extended pre-trial incarceration, (2) minimization of anxiety over pending charges, and (3) the prevention of actual prejudice to the defendant's ability to present a defense. Id. "Of these forms of prejudice, 'the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.'" Dragoo, 96 S.W.3d at 315 (quoting Barker, 407 U.S. at 532). With regard to the first and second interests, we hold appellee was not prejudiced. At the January 24th hearing on his motion to dismiss, appellee was the only witness. Our review of the hearing indicates that appellee never explicitly commented on any form of anxiety he may have suffered. At most, appellee's testimony indicates no more anxiety and concern beyond what would ordinarily result from being arrested and charged with a serious offense. See Shaw, 117 S.W.3d at 890. However, with regard to the third interest, appellee also testified that just prior to his arrest, he was at his father's house; and both his father and his father's housekeeper, Mari, were to testify regarding appellee's "condition" when he was arrested. Because appellee's father now suffers from Alzheimer's and because his father's housekeeper has moved to Houston, Texas, appellee claims that these witnesses are unavailable. (3) The unavailability of a witness implicates the "most serious" "sub-factor" in the prejudice analysis, "because the inability of a defendant to adequately prepare his case skews the fairness of the entire system." Dragoo, 96 S.W.3d at 315; see State v. Guerrero, 110 S.W.3d 155, 162-63 (Tex. App.-San Antonio 2003, no pet.). On appeal, the State argues that these witnesses are only two of a large group of people that could testify regarding appellee's condition just prior to his arrest. However, the State did not present any evidence that any of these other people had knowledge of appellee's condition nor did they present any evidence that these other people were available to testify. We conduct our review "in light of the arguments, information, and evidence that was available to the trial court at the time it ruled." Shaw, 117 S.W.3d at 889. Moreover, "excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, . . . it is part of the mix of relevant facts, and its importance increases with the length of delay." Dogett, 505 U.S. at 655-56. "When the defendant makes a prima facie showing of prejudice, the State carries the burden of proving that the defendant 'suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay.'" Guerrero, 110 S.W.3d at162 (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973)). The State has failed to do so. We recognize that at the speedy trial hearing, the State neither offered any witnesses or presented any evidence to rebut appellee's claim of prejudice. Without such evidence it is difficult to give credence to the State's arguments on appeal. The record of the speedy trial hearing indicated that the trial court felt that appellee had been prejudiced as the result of losing these two witnesses. We will not second guess a trial court's finding of prejudice where the State has wholly failed to present any evidence to the contrary. See Kelly, 163 S.W.3d at 726 (holding that deference must be given not only to a trial court's resolution of disputed facts, but also to the drawing of reasonable inferences from those facts.). Moreover, a trial judge's personal knowledge of the parties and the sequence of events do in fact place him in a better position to draw inferences than appellate courts without such familiarity. Id. at 726-27. Based on the record, and upon appellee's testimony, we find that the trial court could have inferred prejudice to appellee's ability to present a defense as a result of losing witnesses who could account for his condition prior to being arrested. Because appellee made a prima facie case of prejudice, and the State failed to carry its burden to prove that he did not suffer prejudice beyond that inherent in the "ordinary and inevitable delay," we hold the prejudice factor weighs in favor of finding that appellee's right to a speedy trial was violated. E. Balancing the Barker Factors All four of the Barker factors weigh in appellee's favor: (1) the length of delay, more than two years, is presumptively prejudicial and unreasonable and therefore supports appellee's position; (2) the State did not carry its burden in justifying fifteen months of delay, and was at least negligent in delaying the review of the trial court's ruling to disqualify the district attorney's office for seventy-eight days; (3) appellee repeatedly urged the trial court to hear his motion for speedy trial; (4) and the unavailability of appellee's father and the housekeeper, establish that the delay caused some prejudice, which the State failed to rebut. We therefore overrule the State's only issue on appeal and affirm the trial court's judgment. ROGELIO VALDEZ Chief Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 2nd day of August, 2007. 1. Specifically, the trial court stated the following: "Let me suggest a brief reset for a status. In other words, put the ball on the D.A.'s office. Of course, they can either, of course, seek to have this decision reviewed or follow the order of the Court and appoint somebody else to handle this, but I do want information or a decision of what is going to be done with it." 2. At the June 8th "status hearing," defense counsel made the following arguments to the trial court: They had presented some other case to the grand jury that was no billed. They lacked a material witness that prevented us from going forward on motions to suppress and other motions, and now they are coming here at the eleventh hour when they were given plenty of opportunity to appeal this case and saying they want more time. And we believe that that only deprives our client of his constitutional right to a speedy trial. At the same hearing, defense counsel also urged the following: They are untimely with respect to their request for appeal, but that is an issue for the court of appeals. Mandamus is not a remedy available to them, and, therefore we are asking that we not have any additional delay, that the Court appoint [a prosecutor] pro tem and that we proceed with the resolution of the pending motions to include the motion to dismiss for want of a speedy trial . . . . At the August 24th hearing, defense counsel re-urged the trial court to appoint a special prosecutor: "It has been almost two years since the date of the arrest of my client. We are asking the court to appoint a special prosecutor and continue this case so my client can have his day in court." 3. To claim prejudice because of a missing witness, a defendant must show that: (1) the witness was unavailable at the time of the trial; (2) the witness's testimony would have been relevant and material; and (3) he exercised due diligence in an attempt to locate the witness. Phipps v. State, 630 S.W.2d 942, 947 (Tex. Crim. App. 1982); Meyer v. State, 27 S.W.3d 644, 650 (Tex. App.-Waco 2000, pet. ref'd); Parkenson v. State, 942 S.W.2d 789, 792 (Tex. App.-Forth Worth 1997, no pet.). The record indicates that appellee's father is suffering from a severe case of Alzheimer's, and since appellee's arrest, his condition has worsened. Appellee's housekeeper has moved to Houston, Texas, and despite the efforts of appellee, could not be located. Both witnesses are relevant and material because they could have testified to appellee's condition prior to his arrest. See Webb v. State, 36 S.W.3d 164, 174-75 (Tex. App.-Houston [14th Dist.] 1991, no pet.) (holding that a defendant need only show that the prospective witness was believed to be material to the case, not that the witness would have testified favorably to the defense). Because appellee made a prima facie showing of prejudice, the burden was on the State to prove otherwise.