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Click here for the full text of this decision FACTS:On Aug. 2, 2001, police arrested Kenneth Warren Stock for driving while intoxicated. Because he could not post bond, he remained incarcerated after his arrest. The state charged Stock with felony driving while intoxicated on Aug. 15, 2001. The state initially set his case for trial on March 18, 2002. On March 15, 2002, Stock received a continuance based on his need to locate a witness. After two additional postponed trial settings, the state requested and received a continuance on July 3, 2002, due to a conflict with the prosecution of another case. On Aug. 26, 2002, Stock filed a motion for speedy trial, asserting that he would be prejudiced if the court did not hold the trial on or before Sept. 3, 2002, because Stock was still in jail after a year’s time because of his inability to post bond. On Sept. 3, 2002, the trial court held a hearing on the motion for speedy trial. The trial judge ordered that Stock be released from jail on a personal recognizance bond. The trial judge then instructed the clerk of the court to get Stock’s case on the docket as soon as possible. The judge stated that he did not want the case “to be a six-month delay.” Despite this instruction by the trial court, Stock’s case continued to be repeatedly reset and remained pending on the docket long after the Sept. 3, 2002, hearing. On April 5, 2004, Stock filed a motion to set aside the indictment for failure to afford a speedy trial. A hearing on this motion was held on June 8, 2004, during which both parties agreed that the case had been set for trial a total of nine times. After hearing arguments, the trial judge denied Stock’s motion to set aside the indictment for failure to afford a speedy trial and instructed the clerk to make Stock’s case “number one” on the docket. Stock’s case was tried to a jury for the first time on July 6, 2004, approximately 35 months after his arrest in August 2001. At the beginning of the trial, Stock re-urged his motion to set aside the indictment for lack of speedy trial and that motion was once again denied. The July 2004 trial ultimately resulted in a mistrial due to a deadlocked jury. After the mistrial, the parties negotiated and entered into a five-year plea agreement. In accordance with the plea agreement, Stock entered a guilty plea at a hearing on Aug. 17, 2004. At the sentencing hearing on Nov. 8, 2004, the trial judge advised the parties that he was rejecting the plea agreement. Stock then withdrew his guilty plea and the case was reset. After one more resetting, the case finally went to trial on Feb. 22, 2005. Stock again moved to set aside the indictment for failure to afford a speedy trial. The trial judge denied the motion. The jury convicted Stock of felony driving while intoxicated. At the punishment hearing on Feb. 25, 2005, the court sentenced Stock to 15 years in prison. HOLDING:Reversed and dismissed. The 3rd Court of Appeals followed the balancing test of Barker v. Wingo, 407 U.S. 514 (1972), to determine if the state denied Stock’s right to a speedy trial. Barker, the court stated, dealt with an accused’s federal constitutional right to a speedy trial. But Texas courts, the court stated, use a balancing test identical to the Barker test to determine whether a defendant has been denied his state constitutional right to a speedy trial. The Barker balancing test, the court stated, weighs the following four factors: length of the delay, reason for the delay, the defendant’s assertion of the right to a speedy trial and prejudice to the accused. The court found that all four Barker factors weighed in Stock’s favor. First, the court noted that both parties agree that the 35-month delay between Stock’s indictment and the first trial was sufficient to trigger a speedy-trial inquiry. Second, the court stated that an overcrowded dockets served as the primary cause for the delay was an overcrowded docket, which the court weighed against the state. Third, the court stated that Stock repeatedly asserted his right to a speedy trial. Finally, the court noted that the state failed to rebut Stock’s evidence of prejudice, which included his lengthy pretrial incarceration, difficulty in obtaining employment and the costs of traveling to court for the many resettings and obtaining urinalyses. Thus, the court found that the state violated Stock’s state constitutional right to a speedy trial, reversed Stock’s conviction and dismissed the case against him. OPINION:Waldrop, J.; Pemberton, Waldrop and Smith, J.J.

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