Jeremy McDill v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-24-00105-CR

JEREMY MCDILL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 76th District Court
Titus County, Texas
Trial Court No. CR19288

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION

Pursuant to a plea agreement, Jeremy Shad McDill pled guilty to possession of

methamphetamine in an amount of less than one gram, a state jail felony,1 and, in 2016, he was

placed on deferred adjudication community supervision for three years. In 2018, the State

moved to adjudicate McDill’s community supervision, alleging five violations of its terms and

conditions. McDill was arrested on the State’s adjudication motion, posted bond, but never

appeared for his scheduled court dates. Overall, McDill was arrested six times from the filing of

the motion to adjudicate until the hearing on that motion. Six years after the State filed its

adjudication motion, but two days before the adjudication hearing, McDill filed a motion to

dismiss for violation of his right to a speedy trial. McDill pled true to the allegations in the

State’s motion to adjudicate. After an evidentiary hearing, the trial court denied the motion to

dismiss, adjudicated McDill guilty, and sentenced McDill to two years in a state jail facility.

On appeal, McDill argues that the trial court erred when it denied his motion to dismiss

for violation of his right to a speedy trial because six years had elapsed from the time the State

filed its motion to adjudicate guilt until the hearing on that motion. Because we find that the trial

court properly overruled McDill’s motion to dismiss for violation of his right to a speedy trial,

we affirm its judgment.

I. Background

McDill pled guilty to possession of a controlled substance in penalty group 1 in an

amount less than one gram (methamphetamine), a state jail felony, and was placed on deferred

1
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(a)–(b) (Supp.).
2
adjudication community supervision for three years. The terms and conditions of the deferred

adjudication community supervision required McDill to report to community supervision “as

directed” by his community supervision officer.

On May 17, 2018, the State filed a motion to adjudicate. The State alleged that McDill

violated the terms and conditions of his community supervision by (1) acknowledging use and

possession of methamphetamine and marihuana, (2) failing to report for the “months of June and

December, 2017; February, March, April, and May 2018,” (3) failing to pay court-ordered fees,

(4) failing to successfully complete DOE Safety Education classes, and (5) failing to serve a

three-day confinement sanction for a positive drug test. When McDill was arrested five days

later, on the adjudication warrant, he was served with the State’s motion to adjudicate. However,

the record establishes that McDill failed to appear for the trial court’s first and second scheduled

hearings on the State’s adjudication motion.2

The trial court sent a notice to McDill requiring his appearance at the third scheduled

adjudication hearing on May 22, 2024. Two days before the scheduled hearing, McDill filed a

motion to dismiss for violation of his right to a speedy trial. At the hearing, McDill pled true to

the allegations in the adjudication motion. The State did not present any witnesses, and McDill

was the only witness that testified on his behalf. After the hearing, which included the issue of

punishment, the trial court found all the allegations true in the motion to adjudicate, adjudicated

2
The trial court sent notices to McDill requiring his appearance at the February 12, 2019, hearing on the State’s
motion to adjudicate his guilt. McDill failed to appear at that hearing and for a second hearing set by the trial court
on January 27, 2021.
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McDill guilty for the underlying felony, denied his motion to dismiss, and revoked his

community supervision. The trial court sentenced McDill to two years in a state jail facility.

II. Standard of Review & Relevant Law

“The right to a speedy trial guaranteed by the Constitutions of the United States and

Texas is applicable to probation revocation proceedings.” Carney v. State, 573 S.W.2d 24, 26

(Tex. Crim. App. 1978). “In Texas, the inquiry as to whether the accused’s right to a speedy trial

has been violated is the same under both the United States and the Texas constitutions.” State v.

Rangel, 980 S.W.2d 840, 843 (Tex. App.—San Antonio 1998, no pet.); see U.S. CONST. amends.

VI, XIV; TEX. CONST. art. I, § 10. “The right attaches once a person becomes an ‘accused’—that

is, once he is arrested or charged.” Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).

Texas courts “analyze federal constitutional speedy-trial claims ‘on an ad hoc basis’ by

weighing and then balancing the four Barker v. Wingo[3] factors.” Id. (quoting State v. Munoz,

991 S.W.2d 818, 821 (Tex. Crim. App. 1999)). These factors include the (a) “length of the

delay,” (b) “reason for the delay,” (c) “assertion of the right,” and (d) “prejudice to the accused.”

Id.; see Barker, 407 U.S. at 530. No one factor is determinative, and all factors must be

considered together along with relevant circumstances on a case-by-case basis. Cantu, 253

S.W.3d at 281. Although “the State has the burden of justifying the length of delay, the

defendant has the burden of proving the assertion of the right and showing prejudice.” Cantu,

253 S.W.3d at 280 (footnote omitted) (citation omitted). “The defendant’s burden of proof on

the latter two factors ‘varies inversely’ with the State’s degree of culpability for the delay.” Id.

3
See Barker v. Wingo, 407 U.S. 514 (1972).
4
(quoting Robinson v. Whitley, 2 F.3d 562, 570 (5th Cir. 1993)). “[T]he greater the State’s bad

faith or official negligence and the longer its actions delay a trial, the less a defendant must show

actual prejudice or prove diligence in asserting his right to a speedy trial.” Id. at 280–81. “In

conducting the balancing test, no single factor is determinative, and the conduct of both the

prosecutor and the defendant are to be weighed.” Blaylock v. State, 259 S.W.3d 202, 208 (Tex.

App.—Texarkana 2008, pet. ref’d).

“In reviewing the trial court’s ruling on [an accused’s] federal constitutional speedy trial

claim, we apply a bifurcated standard of review: an abuse of discretion standard for the factual

components, and a de novo standard for the legal components.” Cantu, 253 S.W.3d at 282

(quoting Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002)). Review of the Barker

factors involves both legal and factual determinations, but “[t]he balancing test as a whole . . . is

a purely legal question.” Id. (alteration in original) (quoting Zamorano, 84 S.W.3d at 648 n.19).

Almost total deference is given “to historical findings of fact of the trial court that the record

supports,” and we “draw reasonable inferences from those facts necessary to support the trial

court’s findings.” Gonzales v. State, 435 S.W.3d 801, 808–09 (Tex. Crim. App. 2014). “In our

deliberation, we do not consider evidence and arguments that were not before the trial court at

the time of its ruling.” State v. Ritter, 531 S.W.3d 366, 371 (Tex. App.—Texarkana 2017, no

pet.).

III. The State Did Not Violate McDill’s Right to a Speedy Trial

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In his sole point of error, McDill argues that the trial court erred when it denied his

motion to dismiss for violation of his right to a speedy trial because six years elapsed from the

time the State filed its motion to adjudicate until the adjudication hearing occurred.

A. Length of the Delay

“The length of delay is a double inquiry: A court must consider whether the delay is

sufficiently long to even trigger a further analysis under the Barker factors, and if it is, then the

court must consider to what extent it stretches beyond this triggering length.” Hopper v. State,

520 S.W.3d 915, 924 (Tex. Crim. App. 2017). In an adjudication context, the start date used to

measure the length of delay is the filing of a motion to adjudicate. See Martinez v. State, 531

S.W.2d 343, 345 (Tex. Crim. App. 1976) (revocation). The end date used to measure the length

of delay is the date the adjudication hearing occurred or the “demand for a speedy trial.”

Balderas v. State, 517 S.W.3d 756, 771 (Tex. Crim. App. 2016); see Zamorano v. State, 84

S.W.3d 643, 648 (Tex. Crim. App. 2002).

“The Barker [inquiry] is triggered by a delay that is unreasonable enough to be

[considered] ‘presumptively prejudicial.’” Cantu, 253 S.W.3d at 281 (quoting Doggett v. United

States, 505 U.S. 647, 652 n.1 (1992)). “In general, courts deem delay approaching one year to be

‘unreasonable enough to trigger the Barker enquiry.’” Balderas, 517 S.W.3d at 768 (quoting

Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003)). Because the delay in this case

was six years, it meets the minimum requirement to trigger a Barker analysis.

After the Barker analysis is triggered, we must then analyze the second part of the

inquiry—“to what extent it stretches beyond this triggering length.” Hopper, 520 S.W.3d at 924.

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The complexity of the case is a consideration to determine the weight given to this factor. “[T]he

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. The State moved for the trial court to

adjudicate McDill’s guilt for possession of less than one gram of methamphetamine. The main

allegations in the motion to adjudicate involved failures to report. Accordingly, nothing

suggested that McDill’s case was complex.

Combined with the lack of complexity, the six-year delay stretches “far beyond the

minimum needed to trigger the [Barker] enquiry.” Dragoo v. State, 96 S.W.3d 308, 314 (Tex.

Crim. App. 2003); see Wisser v. State, 350 S.W.3d 161, 165 (Tex. App.—San Antonio 2011, no

pet.) (“four years is an unusually lengthy delay in a probation revocation case”). We find this

factor weighs heavily in favor of finding a violation of McDill’s speedy-trial right.

B. Reason for the Delay

The second factor requires the State to show whether the delay was justifiable. Emery v.

State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994); Doggett v. United States, 505 U.S. 647, 651

(1992) (“whether the government or the criminal defendant is more to blame for that delay”).

While the “burden of excusing the delay rests with the State,” Phillips v. State, 650 S.W.2d 396,

400 (Tex. Crim. App. [Panel Op.] 1983), “different weights should be assigned to different

reasons” when analyzing this prong of the Barker test, Barker, 407 U.S. at 531. “Unjustifiable

reasons for delay count towards the ‘length of delay,’ while justifiable reasons for delay do not.”

Gonzales, 435 S.W.3d at 810 (quoting Barker, 407 U.S. at 531–32). “A justifiable reason for

delay in a complex white-collar case, for example, may not be a justifiable reason for delay in a

7
simple assault case.” Id. Deliberate attempts to delay trial to hamper a defense are weighed

heavily against the State. Barker, 407 U.S. at 531. “A more neutral reason such as negligence . .

. should be weighted less heavily but nevertheless should be considered since the ultimate

responsibility for such circumstances must rest with the government rather than with the

defendant.” Id.

The record reflects that McDill contributed to the delay. The first adjudication hearing

was set for nine months after the filing of the motion to adjudicate. There is a grace period

initially to prepare for a case. Shaw v. State, 117 S.W.3d 883, 889–90 (Tex. Crim. App. 2003)

(“In addition, the three-month interval between appellant’s indictment and first trial may not be

counted against the State, since the State was entitled to a reasonable period in which to prepare

its case.”). Without McDill’s first failure to appear, the adjudication hearing would have

occurred within an appropriate amount of time. Undoubtedly, when a trial court sets a hearing

and a defendant fails to attend after proper notice, that is a direct cause of delaying the resolution

of a prosecution and shows an intention of not truly wanting a speedy trial—especially more than

once. The Texas Court of Criminal Appeals has determined that the period a defendant is “at

large” “cannot fairly be charged against the State.” Davison v. State, 510 S.W.2d 316, 319 (Tex.

Crim. App. 1974).

Moreover, the record shows that the remaining delay was attributable to McDill’s failure

to report to community supervision, which weighs against him because it shows that McDill was

attempting to evade the judicial process. See State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim.

App. 1999) (citing Dickey v. Florida, 398 U.S. 30, 48 (1970) (Brennan, J., concurring)); Wade v.

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State, 83 S.W.3d 835, 839 (Tex. App.—Texarkana 2002, no pet.) (the defendant’s failure to

report his location according to the terms and conditions of probation weighed against him);

Zamarripa v. State, 573 S.W.3d 514, 523 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

Therefore, McDill’s inaction weighs against him.

However, the State also contributed to the delay. Even though McDill was arrested six

times and bailed out five times, the arrests occurred in the same county where the motion to

adjudicate was filed, and the record was silent as to whether the State made any attempts to

locate McDill. See Turner v. State, 545 S.W.2d 133, 137–38 (Tex. Crim. App. 1976) (“It can

therefore be seen that the burden of excusing the delay rests with the State and that in light of a

silent record or one containing reasons insufficient to excuse the delay, it must be presumed that

no valid reason for delay existed.”). There was no indication whether the State sought additional

settings or the State attempted to locate McDill at any of the addresses listed on the bail bonds

filed with the trial court. See Gonzales, 435 S.W.3d at 810 (“The [Texas] court of appeals

reached this conclusion for the same reason the trial court did, but it also noted that this factor

weighed against the State because Appellant’s home address was known at all times by the

State.”). The addresses listed on the bail bonds always listed a local address. The silent record

requires this Court to presume that the State was negligent in bringing McDill to trial. Doggett,

505 U.S. at 652–53 (finding that the State was negligent because it “made no serious effort to

test their progressively more questionable assumption that Doggett was living abroad, and, had

they done so, they could have found him within minutes”). But an inference cannot be made that

such inaction by the State was “deliberate or intentional.” Zamarripa, 573 S.W.3d at 523.

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Therefore, the State’s negligence in locating McDill and failing to request additional settings in

six years weighs in favor of McDill.

After considering the State’s negligence and McDill’s inactions, the second Barker factor

weighs neutrally.

C. Assertion of the Right

Next, the burden is placed on McDill to timely “assert his right to a speedy trial.” Cantu,

253 S.W.3d at 282 (citing Barker, 407 U.S. at 528). McDill waited six years to assert his

speedy-trial right. He argues that there was delay in asserting his right to a speedy trial because,

even though he had appointed counsel, his appointed counsel did not file a notice of appearance

or do anything on McDill’s behalf for more than a year.4 However, the record reflects that

McDill was represented continuously throughout the pendency of the prosecution since the trial

court appointed an attorney immediately after each attorney withdrew.

Without a valid justification for McDill’s delay, we are left with just analyzing a six-year

delay in asserting the speedy-trial right. Substantial delay weakens the argument, where the

longer the delay, the more it looks like it was unpreserved. See Robinson v. State, 470 S.W.2d

697, 699 (Tex. Crim. App. 1971). Once asserted, the trial court resolved the case two days later.

4
McDill argues that his second court-appointed counsel “never filed an appearance of counsel or otherwise acted on
McDill’s behalf,” which, according to McDill, means he was unrepresented by counsel for one and a half years. In
support of his argument, McDill relies on the federal district court opinion in Russell v. Denmark, but we find
McDill’s reliance misguided. See Russell v. Denmark, 528 F.Supp.3d 482, 498 (S.D. Miss. 2021) (orig.
proceeding), rev’d by 68 F.4th 252 (5th Cir. 2023). In Russell, the defendant notified the trial court that he had not
spoken to an attorney even though the trial court had appointed an attorney to represent him. Id. at 490. Because
Russell was incarcerated during the entire pretrial process, he relied on the public defender’s office to meet with
him. The distinguishing factor is that Russell had no liberty to voluntarily meet with the court-appointed attorney
because of his incarceration’s restraint on his liberty. Russell was reliant on the public defender’s office to set time
aside to meet him at the jail and was limited to pleading with the trial court for relief to make that happen. Here,
McDill was not incarcerated and was free to communicate with his counsel at any time.
10
See Amos v. Thornton, 646 F.3d 199, 207 (5th Cir. 2011) (per curiam). McDill’s “assertion was

tardy, it was made only once, and trial occurred within a relatively short time thereafter.” Kelly

v. State, 163 S.W.3d 722, 729 (Tex. Crim. App. 2005) (speedy-trial motion filed after a year was

tardy).

Moreover, “[i]f a defendant fails to first seek a speedy trial before seeking dismissal of

the charges, he should provide cogent reasons for this failure.” Cantu, 253 S.W.3d at 283.

“Filing for a 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.” Id. McDill’s speedy-trial

motion merely alleged that dismissal was required since “[a] period of 7 years ha[d] passed since

the case commenced,” and the actions of McDill or his attorney did not cause the delay. “The

constitutional right is that of a speedy trial, not dismissal of the charges.” Id. at 281.

We find that the failure to pursue a speedy trial for six years until two days before the

adjudication hearing without a valid justification weighs heavily against McDill, especially since

the record shows that what he wanted was dismissal of the charges rather than a speedy trial.

D. Prejudice to the Accused

The fourth Barker factor places the burden on McDill to prove a prima facie case of

prejudice. Webb v. State, 36 S.W.3d 164, 174 (Tex. App.—Houston [14th Dist.] 2000, pet.

ref’d). Prejudice occasioned by the delay in proceeding to trial is assessed in the light of the

three interests the right to a speedy trial was designed to protect: (1) freedom from oppressive

pretrial incarceration, (2) mitigation of the anxiety and concern on the part of the accused that

accompanies a public accusation, and (3) avoidance of impairment to the defense of the charges.

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Barker, 407 U.S. at 532. “Although the appellant need not show actual prejudice, he must make

a prima facie showing of prejudice.” Webb, 36 S.W.3d at 174. “The burden then shifts to the

State to show that prejudice did not exceed that which occurs from the ordinary and inevitable

delay.” Id. The first two factors are not implicated here: McDill’s pretrial incarceration was

sixty days, and McDill could not have had anxiety or concern since he testified to a lack of

knowledge that the motion to adjudicate was “hanging over [his] head.”

Also, McDill argues that he is relieved of proving a prima facie case of prejudice because

the record reflects “a presumption of prejudice.” Amos, 646 F.3d at 208. However, the

presumption of prejudice only concerns the third interest. Dragoo, 96 S.W.3d at 315 (“[W]ith

respect to the third interest, affirmative proof of particularized prejudice is not essential to every

speedy trial claim, because ‘excessive delay presumptively compromises the reliability of a trial

in ways that neither party can prove or, for that matter, identify.’” (quoting Doggett, 505 U.S. at

655)). “In these instances, the reviewing court presumes that the lengthy delay adversely

affected the defendant’s ability to defend h[im]self.” Ritter, 531 S.W.3d at 374–75. “On the

other hand, this ‘presumption of prejudice’ is ‘extenuated . . . by the defendant’s acquiescence’

in the delay.” Dragoo, 96 S.W.3d at 315 (quoting Doggett, 505 U.S. at 658). The delay here

was over six years, triggering the presumption of prejudice. See Zamorano, 84 S.W.3d at 654

(the delay was presumptively prejudicial because there was four years between arrest and trial).

However, McDill’s inactions—by failing to assert his speedy-trial right for six years even though

he had notice of the filing of the motion to adjudicate and the scheduled hearings—extenuated

the presumption of prejudice by a “longtime acquiescence in the delay.” Dragoo, 96 S.W.3d at

12
315. We find that McDill failed to demonstrate prejudice, and therefore, this factor weighs

against McDill.

E. Balancing the Factors

“Having addressed the four Barker factors, we must now balance them.” Id. at 316.

“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.” Cantu, 253 S.W.3d at

281. “Because dismissal of the charges is a radical remedy, a wooden application of the Barker

factors would infringe upon ‘the societal interest in trying people accused of crime, rather than

granting them immunization because of legal error.’” Id. (quoting United States v. Ewell, 383

U.S. 116, 121 (1966)). “Thus, courts must apply the Barker balancing test 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.” Id.

Although the six-year delay and the State’s negligence in the delay weighs in McDill’s

favor, all the other Barker considerations weigh against finding a violation of McDill’s speedy-

trial right. We find that the weight of the factors, when balanced together, weighs against

McDill and leads us to conclude that his right to a speedy trial was not violated. As a result, we

overrule McDill’s sole point of error.

IV. Modification to the Judgment

“We have the authority to reform the judgment to make the record speak the truth when

the matter has been called to our attention by any source.” Rhoten v. State, 299 S.W.3d 349, 356

(Tex. App.—Texarkana 2009, no pet.) (citing French v. State, 830 S.W.2d 607, 609 (Tex. Crim.

13
App. 1992)). “Our authority to reform incorrect judgments is not dependent on the request of

any party, nor does it turn on a question of whether a party has or has not objected in [the] trial

court; we may act sua sponte and may have a duty to do so.” Id. (citing Asberry v. State, 813

S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref’d); French, 830 S.W.2d at 609. “The Texas

Rules of Appellate Procedure also provide direct authority for this Court to modify the trial

court’s judgment.” Id. (citing TEX. R. APP. P. 43.2).

Under the section “Terms of Plea Bargain,” the judgment states that McDill negotiated a

plea agreement for “2 YEARS CONFINEMENT STATE JAIL.” According to the record,

McDill did not agree on a plea bargain. As a result, we modify the judgment by deleting “2

YEARS CONFINEMENT STATE JAIL” from the “Terms of Plea Bargain.”

V. Conclusion

As modified, we affirm the trial court’s judgment.

Charles van Cleef
Justice

Date Submitted: October 1, 2024
Date Decided: October 29, 2024

Do Not Publish

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