56.3.

Motion for a speedy trial[FN1]

[Caption]

DEFENDANT'S MOTION FOR A SPEEDY TRIAL

To the Honorable Judge of Said Court:

Now comes A.B., Defendant in the above entitled and numbered cause, by
and through
his attorney of record and files this his motion for a speedy trial and would
show
the Court the following:
I.

On the day of A.D., 20 the Defendant was charged with the offense of ,
alleged to
have been committed on or about the day of A.D., 20 .
II.

The Defendant was arrested on the day of A.D., 20 and confined in the
County Jail of
County, Texas, to await trial on said charge.
III.

The Defendant was denied reasonable bond and has remained confined in
said jail
since his arrest. The Defendant has now been confined for days waiting trial,
and at
all times the Defendant has been ready for trial.
IV.
The Defendant is being prejudiced by the State's delay because defense
witnesses are
becoming unavailable and such witnesses as remain will have forgotten facts
that
would be beneficial to the Defendant.
Wherefore the Defendant prays that he be granted a speedy trial on said
charge or
that said indictment [information] be dismissed and that the Defendant be
released
from confinement.

Attorney for Defendant

The State of Texas

County of

Before me, the undersigned authority, on this day personally appeared A.B.,
who
after being duly sworn stated:
“I am the Defendant in the above entitled and numbered cause. I have read
the
foregoing motion for a speedy trial and swear that all of the allegations of
fact
contained therein are true and correct.”

Defendant

Subscribed and Sworn to before me on this the day of , 20 .

Notary Public in and for

County, Texas
[CERTIFICATE OF SERVICE]

[ORDER OF THE COURT]

[See Chapter 44 for Proper Captions, Signatures, Certificates of Service and

Orders]

Notes

West's Key Number Digest

West's Key Number Digest, Criminal Law 577.10(10)

Legal Encyclopedias

C.J.S., Criminal Law §§ 583, 600

[FNa] Former Presiding Judge, Court of Criminal Appeals, Austin, Texas.

[FNb] Former District Attorney and Senior District Judge, Austin, Texas.

[FNc] Board Certified Criminal Law Specialist, Austin, Texas and Past
President of
the Texas Defense Lawyers Association.
--------------------------------------------------------------------------------

[FN1] Texas Speedy Trial Act is unconstitutional.

Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987); however both U.S. and
Texas
Constitutions guarantee a speedy trial.
The right to a speedy trial, while a constitutional right, is to be implemented
only
upon request; so that the right is waived if not urged in the trial court.
Oldham v.
State, 5 S.W.3d 840 (Tex.App.—Houston [14th Dist.] 1999).
Clock begins to run for purpose of speedy trial analysis when defendant has
been
charged or arrested. Emery v. State, 881 S.W.2d 702 (Tex.Cr.App.1994).
Defendant is not denied his right to a constitutional speedy trial where the
delay
was caused by his acts (fleeing jurisdiction) which were beyond control of
the
prosecution (reasonable diligence in pursuing defendant). Burgett v. State,
865
S.W.2d 594 (Tex.App.—Ft. Worth 1993, pet. ref'd).
Judicial delay violates 6th Amendment of the U.S. Constitution; while
prosecutorial
delay violates Speedy Trial Act. Hull v. State, 699 S.W.2d 220
(Tex.Cr.App.1985).
Preference by the courts shall be given hearings and trials for defendants in
criminal cases who are detained in jail. V.T.C.A., Government Code §
23.101(a) as
amended by Acts of the 70th Leg. (1987).
The federal constitutional guarantee of a speedy trial is applicable to the
states.
Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967),
on
remand 383 F.2d 981 (9th Cir.1967).
Speedy trial computation starts only after a defendant is charged. United
States v.
Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).
For factors to be considered in determining constitutional right to a speedy
trial,
see Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
Time between good faith dismissal and filing of new charge is not to be
considered
in computing speedy trial right. United States v. MacDonald, 456 U.S. 1,
102 S.Ct.
1497, 71 L.Ed.2d 696 (1982), on remand 688 F.2d 224 (4th Cir.1982), cert.
denied 459
U.S. 1103, 103 S.Ct. 726, 74 L.Ed.2d 951 (1983).
Delay of eleven months does not per se show a denial of constitutional rights
to a
speedy trial. Cook v. State, 741 S.W.2d 928 (Tex.Cr.App.1987), cert. granted
and
judgment vacated on other grounds 488 U.S. 807, 109 S.Ct. 39, 102 L.Ed.2d
19 (1988),
on remand 821 S.W.2d 600 (Tex.Cr.App.1991).
A defendant's status as a prisoner can neither prejudice his federal or state
constitutional right to a speedy trial nor serve to justify delay on part of the
State to try an unrelated offense. Chapman v. Evans, 744 S.W.2d 133
(Tex.Cr.App.1988).
In determining whether the defendant's constitutional right to a speedy trial
has
been violated four factors are to be considered, i.e.: the length of the delay,
the
reason for it, appellant's assertion of his speedy trial right, and the possible
prejudice to the appellant because of the delay. Phillips v. State, 650 S.W.2d
396
(Tex.Cr.App.1983). Citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33
L.Ed.2d
101 (1972).
Where the trial court fails to grant a speedy trial, the Court of Criminal
Appeals
now has authority to issue a writ of mandamus to compel a speedy trial of a
defendant including those incarcerated in a penal institution on other
charges.
Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978).