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).