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Click here for the full text of this decision The trial court could have reasonably concluded that appellant failed to demonstrate any actual prejudice caused by delay. Therefore, this factor weighs against finding a violation of his right to a speedy trial. FACTS:The court of appeals held that the trial court erred in denying appellant’s motion to dismiss for want of a speedy trial. HOLDING:Reversed and remanded. In determining whether a criminal defendant has been denied his federal or state constitutional right to a speedy trial, a court must use a balancing test in which the conduct of the state and the defendant are weighed. Barker v. Wingo, 407 U.S. 514 (1972); Harris v. State, 827 S.W.2d 949 (Tex.Crim.App.), cert. denied, 506 U.S. 942 (1992). The factors to be weighed in the balance include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant’s assertion of his speedy trial right and the prejudice to the defendant resulting from the delay. No single factor is necessary or sufficient to establish a violation of the defendant’s right to a speedy trial. The appellant was indicted in December 1997 and tried (the second time) in February 2001, an interval of 38 months. This delay was sufficient to trigger a speedy trial inquiry. Furthermore, the delay here stretched far beyond the minimum needed to trigger the inquiry. Consequently, this factor weighs heavily in favor of finding a violation of appellant’s right to a speedy trial. The state did not justify most of the lengthy delay in this case. Consequently, this factor, too, weighs in favor of finding a violation of appellant’s right to a speedy trial. The appellant failed to assert his speedy trial right until 29 months after his first trial, and he did not seek a hearing on his motion to dismiss until almost six months after that, although he was represented by counsel at all relevant times and no question is raised as to the competency of counsel. In view of the lengthy delay here, during most of which appellant quietly acquiesced, this factor weighs very heavily against finding a violation of his right to a speedy trial. The appellant was out on bond at all relevant times, so the court does not concern itself with pretrial incarceration. And, with respect to the second interest, the appellant offered no evidence to the trial court that the delay had caused him any unusual anxiety or concern, i.e., any anxiety or concern beyond the level normally associated with being charged with a felony sexual crime. Finally, with respect to the third interest, the court presumes that the lengthy delay here did adversely affect appellant’s ability to defend himself, but this presumption is extenuated by appellant’s longtime acquiescence in the delay. The trial court could have reasonably concluded that the appellant failed to demonstrate any actual prejudice. Therefore, this factor weighs against finding a violation of his right to a speedy trial. The weight of the four factors, balanced together, is against finding a violation of appellant’s right to a speedy trial. OPINION:Holcomb, J., delivered the court’s opinion.

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