James Wiley Barnes, III v. State ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00172-CR

James Wiley Barnes, III,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2006-586-C2

MEMORANDUM  Opinion

James Wiley Barnes, III appeals the trial court’s revocation of his deferred adjudication community supervision and imposition of a six-year prison sentence.  We will affirm the trial court’s judgment.

Barnes had entered into a negotiated plea agreement in which he pled guilty to the second-degree felony offense of aggravated assault—threat with a deadly weapon and was placed on deferred adjudication community supervision for five years, beginning June 20, 2006.  The State filed a motion to adjudicate guilt on March 21, 2007, alleging fifteen violations of community supervision.  After an April 27, 2007 hearing, on April 30, 2007, the trial court found Barnes guilty and assessed the six-year sentence.  Barnes appeals, asserting in two issues that he did not fail to avoid injurious or vicious habits and that he did not fail to avoid contact with the victim.

The State points out that Barnes may not raise these issues under the version of section 5(b) of article 42.12 in effect at the time of Barnes’s guilty plea and the adjudication proceedings.

A defendant was statutorily prohibited from complaining on appeal of errors occurring at the hearing on the State’s motion to proceed to adjudication.  Gray v. State, 134 S.W.3d 471, 472 (Tex. App.—Waco 2004, pet. denied) (citing Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999)).  At the time relevant to this case, section 5(b) provided:  “The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge.  No appeal may be taken from this determination.” See Act of May 28, 2007, 80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Sess. Law Serv. 4404, 4405 (amending section 5(b) to provide that the trial court’s “determination is reviewable in the same manner as a revocation hearing conducted under Section 21” of Article 42.12) (emphasis added) (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2008)); see Durgan v. State, 240 S.W.3d 875, 877-78 (Tex. Crim. App. 2007).

            Section 5(b) of article 42.12 has been amended to treat decisions to adjudicate similarly to decisions to revoke community supervision, but the amended statute applies only to decisions to adjudicate made on or after June 15, 2007.  Durgan, 240 S.W.3d at 877 n.1; see Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b).

Under the applicable law, we dismiss Barnes’s two issues.  The trial court’s judgment is affirmed.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed April 1, 2009

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-05-00344-CR

The State of Texas,

                                                                      Appellant

 v.

BRANDON RATCLIFF,

                                                                      Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court No. 04-00241-CRM-CCL2

DISSENTING OPINION

      For the reasons stated below, I dissent.  I sometimes believe, based upon the case law, that a majority of the Court gives too little deference to the trial court’s discretion.  E.g., Gonzales v. State, Nos. 10-03-00309-CR & 10-03-00312-CR, 2005 Tex. App. LEXIS 1501, at *9-*12 (Tex. App.—Waco Feb. 23, 2005, no pet.) (Gray, C.J., dissenting) (not designated for publication).  Here, again based upon the case law, I believe that the majority gives too much.

      I disavow, first, of course, as I often do, the majority opinion’s extravagantly unnecessary dicta.  E.g., Villanueva v. State, No. 10-05-00288-CR, 2006 Tex. App. LEXIS 9402, at *30-*32 (Tex. App.—Waco Oct. 18, 2006, no pet.) (Gray, C.J., dissenting).  It does not require twenty-three pages to dispose of these cases, even though they are four, related cases.  The majority’s discussion of the several states’ speedy-trial acts, (see slip op. at 4-8 (majority op.)), is particularly egregious: Texas does not have a speedy trial act.

      Next, the majority correctly states, then disregards, the standard of review.  “[W]e apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components.”  (Slip op. at 2 (majority op.) (quoting Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002)).)  For instance, the majority holds that “[t]he court did not abuse its discretion by holding the State responsible for the mistrial,” and that “the record supports the trial court’s ruling” on matters of law “so we ‘must uphold’ it.”  (Id. at 16, 17, 21, 22 (quoting Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003)).)  Here, the facts are largely undisputed.  We must uphold the trial court’s legal ruling on a speedy-trial motion only if the ruling is “correct under the applicable law.”  Shaw, 117 S.W.3d at 889 (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)).  Among the factors to which, as a matter of law, we must hold strongly against the appellants, especially Manley, Brown, and Ratcliff, is the untimely assertion of the right to a speedy trial.  See Kelly v. State, 163 S.W.3d 722, 727-29 (Tex. Crim. App. 2005); see also Barker v. Wingo, 407 U.S. 514, 532 (1972).  “[F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.”  Barker at 532.

      The majority similarly fails to consider the weight that each factor in the analysis carries.  The majority states the standard of review: “Different weights are assigned to the various reasons for the delay asserted by the State.”  (Slip op. at 8 (majority op.) (citing Shaw, 117 S.W.3d at 889)); see Barker, 407 U.S. at 531.  A period of time may weigh “very heavily,” “more heavily,” “heavily,” “less heavily,” “moderately,” or only “lightly” either for or against a party.  E.g., Barker at 531; Kelly, 163 S.W.3d at 729, 730; Shaw at 890; Dragoo v. State, 96 S.W.3d 308, 312, 314 (Tex. Crim. App. 2003); Zamorano, 84 S.W.3d at 649, 651; Munoz, 991 S.W.2d at 822; Deeb v. State, 815 S.W.2d 692, 706 (Tex. Crim. App. 1991); Chapman v. Evans, 744 S.W.2d 133, 136 (Tex. Crim. App. 1988) (orig. proceeding).  The majority, however, considers all periods of time as carrying equal weight.  For example, the majority holds that “twenty-one of the twenty-nine months can be attributed to the State” as to Lewis, “thirty-three of the thirty-four months can be attributed to the State” as to Brown, and “thirty-one of the thirty-four months can be attributed to the State” as to Manley.  (Slip op. at 17, 22 (majority op.).)  Again, particularly as to the assertion of the right to a speedy trial, and particularly as to Manley, Brown, and Ratcliff, the majority fails to give due weight to the failure to assert the right timely.

      For the reasons above, I dissent.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed February 7, 2007

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