Herman Lee Kindred v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00380-CR
HERMAN LEE KINDRED,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F43788
MEMORANDUM OPINION
Appellant, Herman Lee Kindred, was indicted for the offense of theft of property
valued at less than $1,500, ordinarily a class A misdemeanor. See TEX. PENAL CODE
ANN. § 31.03(a), (e)(3) (West 2011). The indictment also contained a paragraph noting
that Kindred had been convicted of theft twice before, thus enhancing the offense to a
state-jail felony. See id. § 31.03(e)(4)(D). Also included in the indictment were felony-
enhancement paragraphs, which further elevated this offense to a second-degree felony.
See id. § 12.42(a)(2) (West 2011). After a jury trial, Kindred was convicted of the charged
offense and was sentenced to eighteen years’ confinement in the Texas Department of
Criminal Justice—Institutional Division with a $1,000 fine. In five issues, Kindred
argues that: (1) the evidence supporting his conviction is insufficient; (2) the trial court
erred in denying his motion for directed verdict; (3) the trial court abused its discretion
by imposing a grossly disproportionate sentence to the offense committed; (4) the
sentence imposed is illegal; and (5) the trial court erred by denying his motion for
speedy trial. We affirm.
I. BACKGROUND
On May 21, 2009, at approximately 1:00 p.m., Kindred, a Wal-Mart truck driver,
entered a Wal-Mart store located in Cleburne, Texas. Upon entering the store through
the general merchandise doors, Kindred immediately caught the attention of Ricky and
Danny Danals, who are Wal-Mart Asset Protection Associates. Both Ricky and Danny
observed that, upon entering the store, Kindred looked up directly at an overhead
surveillance camera and then walked swiftly to the women’s department, which is
located near the general merchandise doors. Ricky and Danny deemed Kindred’s
actions as suspicious and subsequently followed and observed Kindred. They observed
Kindred take two shirts and two pair of pants off of a clothing rack in the women’s
department and conceal them in the front of his pants. Kindred then left the store
without paying for the items.1
1 Oddly enough, this is not the first time Kindred has been convicted of stealing women’s
clothing. In any event, the clothing stolen in this case was valued at approximately $80.
Kindred v. State Page 2
Having observed the theft, Ricky called Jimmy Williams, another Wal-Mart Asset
Protection Associate, and informed him that he and Danny were going to confront
Kindred about the apparent theft. Jimmy called another Wal-Mart Asset Protection
Associate, Bryan Payne, to ask for his assistance.2 Jimmy also called the Cleburne Police
Department.
Ricky and Danny first approached Kindred in the store’s parking lot. When
Danny said, “[e]xcuse me,” Kindred sprinted towards the back of the parking lot
toward where he had parked his Wal-Mart tractor-trailer, the getaway vehicle. As he
was running, Kindred pulled the stolen women’s clothing out of his pants and threw
them into the air. Shortly thereafter, Rick and Danny caught up with Kindred and
forced him to the ground. Kindred continued to struggle even when Jimmy joined the
effort. Eventually, Sergeant Ken Meador and Corporal Dru Summey of the Cleburne
Police Department arrived. Sergeant Meador and Corporal Summey investigated the
incident, took statements from the Wal-Mart employees, and arrested Kindred.
Kindred was indicted with one count of “Theft Less than $1,500 with Two Prior
Theft Convictions.” Specifically, the indictment alleged that on or about May 21, 2009,
Kindred “did then and there: UNLAWFULLY APPROPRIATE, BY ACQUIRING OR
OTHERWISE EXERCISING CONTROL OVER PROPERTY, TO WIT: CLOTHING
FROM RICKY DANALS, THE OWNER THEREOF, WITH INTENT TO DEPRIVE THE
OWNER OF THE PROPERTY.” The indictment also included two felony-enhancement
2Ricky, Danny, Jimmy, and Bryan were assigned to the Cleburne Wal-Mart as Asset Protection
Associates as a part of a “blitz” to reduce rampant shoplifting that had occurred at the store.
Kindred v. State Page 3
paragraphs pertaining to Kindred’s prior felony convictions for bail jumping and
forgery by passing.
At trial, Kindred pleaded “not guilty” to the charged offense, but he pleaded
“true” to the theft-enhancement paragraphs. After hearing all of the evidence, the jury
convicted Kindred of the charged offense. During the punishment phase, Kindred
pleaded “true” to the felony enhancement paragraphs, and the jury sentenced him to
eighteen years’ confinement with a $1,000 fine. Thereafter, Kindred filed a motion for
new trial, which was overruled by operation of law. See TEX. R. APP. P. 21.8. This
appeal followed.
II. SUFFICIENCY OF THE EVIDENCE SUPPORTING KINDRED’S CONVICTION
In his first issue, Kindred argues that the evidence supporting his conviction is
insufficient. In particular, Kindred contends that the State failed to prove that Ricky
Danals is the owner of the property allegedly stolen and, thus, the evidence is
insufficient to establish the essential elements of theft.
A. Applicable Law
In reviewing the sufficiency of the evidence to support a conviction, we view all
of the evidence in the light most favorable to the prosecution to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); see Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010).
Furthermore, we must consider all the evidence admitted at trial, even improperly
admitted evidence, when performing a sufficiency review. Clayton v. State, 235 S.W.3d
Kindred v. State Page 4
772, 778 (Tex. Crim. App. 2007). And, in viewing the evidence in the light most
favorable to the prosecution, any inconsistencies in the evidence are resolved in favor of
the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). The standard of
review is the same for direct and circumstantial evidence cases, or in other words,
circumstantial evidence is as probative as direct evidence in establishing an actor’s
guilt. Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007).
The sufficiency of the evidence is measured by reference to the elements of the
offense as defined by a hypothetically-correct jury charge for the case. Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A person commits theft if he unlawfully
appropriates property with intent to deprive the owner of the property. TEX. PENAL
CODE ANN. § 31.03(a). Appropriation of property is unlawful if it is without the owner’s
effective consent. Id. § 31.03(b)(1). An “owner” is defined as a person who “has title to
the property, possession of the property, whether lawful or not, or a greater right to
possession of the property than the actor.” Id. § 1.07(a)(35)(A) (West 2011).
B. Discussion
In arguing that the State failed to present sufficient evidence to support his
conviction, Kindred relies heavily on the decision in Byrd v. State, 336 S.W.3d 242 (Tex.
Crim. App. 2011). In Byrd, the court of criminal appeals noted the following:
The existence of the specific owner is an element, but not his name.
Section 31.03(a) of the penal code sets out the offense of theft . . . . And
subsection (b)(1) states, “appropriation of property is unlawful if . . . it is
without the owner’s effective consent.” There are no names set out in the
Kindred v. State Page 5
theft statute. . . . Nowhere in the penal code is the name of the owner
made a substantive element of theft.
However, the Code of Criminal Procedure, as a matter of state law,
requires the State to allege the name of the owner of property in its
charging instrument. Under Texas pleading rules, ownership may be
alleged in either the actual owner or a special owner. A special owner is a
person who has actual custody or control of property that belongs to
another person. For example, if Dad owns a car and loans it to Daughter,
and Defendant steals it from the shopping mall where Daughter parked it,
the State could allege either Dad—the title or “actual owner”—or
Daughter—the “special owner” who actually possessed the car at the time
it was stolen—in its theft indictment. When an entity, such as a
corporation, owns property, the traditionally preferable practice had been
to allege ownership in a natural person acting for the corporation. But as
Judge Clinton noted, this practice developed in the early twentieth
century before the adoption of the 1974 Penal Code when the definition of
“owner” for purposes of the theft statutes was much narrower. Judge
Clinton explained that, under the current Penal Code, a corporation may
both own and have actual possession of property. Thus it is perfectly
permissible, and sometimes preferable, to now allege the corporation—
Wal-Mart, for example—as the owner of the property and then call any
agent or employee who holds a relevant position in the company to testify
that the corporation did not give effective consent for a person to steal or
shoplift its property.
Although the name of the owner is not a substantive element of
theft, the State is required to prove, beyond a reasonable doubt, that the
person (or entity) alleged in the indictment as the owner is the same person
(or entity)—regardless of the name—as shown by the evidence.
Id. at 251-53 (emphasis in original) (footnotes omitted). The Byrd court ultimately
concluded that the evidence was insufficient to sustain defendant’s theft conviction
because “[n]ot only did the State fail to offer any evidence that ‘Mike Morales’—the
person alleged in the theft indictment—had any ownership interest in or relationship to
the property appellant shoplifted, but the jury, without any apparent concern for the
missing ‘Mike Morales,’ convicted her nevertheless.” Id. at 253, 258.
Kindred v. State Page 6
Here, the indictment alleged that Ricky Danals is the owner of the women’s
clothing that Kindred stole from the Wal-Mart store. Ricky testified that he was
employed as an Asset Protection Associate at the Cleburne Wal-Mart on May 21, 2009,
the day that Kindred committed the theft. Essentially, Ricky was named in the
indictment as a “special owner” who was acting on behalf of a corporation—Wal-Mart.
See Dingler v. State, 705 S.W.2d 144, 145 (Tex. Crim. App. 1984) (“[W]hen property
referred to in a charging instrument belongs to a corporation, it is not only permissible
but the better pleading practice to allege ownership in a natural person acting for the
corporation, the true owner of the property.”). The court of criminal appeals has held
that a security guard hired to protect the property of a business and to keep the
property from being stolen, as Ricky was in this case, has a greater right of possession to
the stolen property by virtue of his employment. See Johnson v. State, 606 S.W.2d 894,
896 (Tex. Crim. App. 1980); see also Freeman v. State, 707 S.W.2d 597, 605 (Tex. Crim.
App. 1986) (“Ownership of some form of possessory interest in someone other than the
accused is an essential element of the offense. Such must be alleged and proved.
However, where the accused does not assert a possessory interest in property allegedly
stolen, but the State proves that another had a possessory interest in the property, then,
as a matter of law, between the two, the latter has established that he had the greater
right to possession of the property, and in turn the State has established a prima facie
case of ownership.”). In addition, we note that, while the practice may be “antiquated,”
as Kindred alleges, the Byrd court did not specifically prohibit the State from naming a
“special owner” in the indictment as the owner of the stolen property rather than the
Kindred v. State Page 7
corporation itself. See Byrd, 336 S.W.3d at 251-53. We therefore conclude that, because
Ricky had a greater possessory right to the stolen property than Kindred, the State
properly asserted Ricky as a “special owner” in the indictment.
Next, we examine the evidence with regard to the remaining theft elements. The
record reflects that Ricky and Danny observed Kindred: (1) enter the Wal-Mart store;
(2) look up at the surveillance camera situated above the entrance; (3) walk swiftly to
the women’s department; (4) take two shirts and two pair of pants—worth
approximately $80—off of a clothing rack; (5) place the clothing in the front part of his
pants; and (6) exit the store without paying for the clothing. When confronted, Kindred
ran towards the back of the parking lot while wildly throwing the stolen clothing into
the air. Ricky, Danny, and other Wal-Mart Asset Protection Associates eventually
caught up with Kindred, but he continued to desperately fight to break free and escape.
See Clayton, 235 S.W.3d at 780 (stating that a fact-finder may draw an inference of guilt
from the circumstance of flight from the crime scene). When viewed in the light most
favorable to the prosecution, we conclude that the evidence demonstrated that Kindred
had a clear intent to deprive Ricky, the “special owner,” of the women’s clothing taken
from the Wal-Mart store. See TEX. PENAL CODE ANN. § 31.03(a); see also Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 902, 912. As such, we further conclude
that the evidence is sufficient to sustain Kindred’s theft conviction. See TEX. PENAL
CODE ANN. § 31.03(a); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d
at 902, 912. Accordingly, we overrule Kindred’s first issue.
Kindred v. State Page 8
III. KINDRED’S MOTION FOR DIRECTED VERDICT
In his second issue, Kindred contends that the trial court erred in denying his
motion for a directed verdict. However, the Texas Court of Criminal Appeals has held
that a challenge to the trial court’s denial of a motion for a directed verdict is treated as
a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482
(Tex. Crim. App. 1996); see Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990)
(“A challenge to the trial judge’s ruling on a motion for an instructed verdict is in
actuality a challenge to the sufficiency of the evidence to support the conviction.”).
Because we have already concluded that the evidence is sufficient to sustain Kindred’s
conviction, we cannot say that the trial court erred in denying his motion for a directed
verdict. See Williams, 937 S.W.2d at 482; see also Cook v. State, 858 S.W.2d 467, 470 (Tex.
Crim. App. 1993); Madden, 799 S.W.2d at 686. Accordingly, Kindred’s second issue is
overruled.
IV. KINDRED’S SENTENCE
In his third and fourth issues, Kindred challenges the sentence imposed.
Specifically, Kindred asserts that his sentence: (1) is illegal and that the Legislature
intended to limit punishment on all theft offenses to the range associated with state-jail
felonies; and (2) is unconstitutionally excessive and constitutes cruel and unusual
punishment.
Kindred v. State Page 9
A. The Legality of Kindred’s Sentence
In arguing that his sentence is illegal and, therefore, unauthorized by law,
Kindred contends this his situation is analogous to that involved in Brown v. State, 14
S.W.3d 832 (Tex. App.—Austin 2000, pet. ref’d). The Brown court addressed a situation
where a defendant was charged with class C misdemeanor theft for stealing $10.36
worth of meat, cheese, and beer from a grocery store. Id. at 832. The offense was
enhanced to a state-jail felony because the defendant had two prior misdemeanor theft
convictions. Id.; see TEX. PENAL CODE ANN. § 31.03(e)(4)(D). However, the State sought
to further enhance the defendant’s punishment to second-degree-felony status with
evidence that he had three prior felony convictions, also for theft. Brown, 14 S.W.3d at
832; see TEX. PENAL CODE ANN. § 12.42(a)(2). The jury found all of the enhancements to
be true and, in accordance with the punishment range prescribed for second-degree
felonies, sentenced the defendant to fourteen years in prison. Brown, 14 S.W.3d at 832.
In concluding that the sentence imposed was not authorized by law, the Brown
court noted the following:
Section 31.03(e)(4)(D) provides that theft of property having a value of less
than $1500 is a state[-]jail felony if the defendant “has been previously
convicted two or more times of any grade of theft.” (Emphasis added.)
Under this subsection, a defendant’s history of theft convictions,
regardless of their number or degree, cannot elevate a subsequent theft of
property worth less than $1500 beyond the status of a state[-]jail felony.
For this reason, the punishment for [a] third offense [of] theft under
section 31.03(e)(4)(D) cannot be enhanced pursuant to section 12.42(a) by
proof of additional felony theft convictions. See Rawlings v. State, 602
S.W.2d 268, 270 (Tex. Crim. App. 1980) (applying substantially identical
prior statutes); Freeman v. State, 970 S.W.2d 55, 59-60 (Tex. App.—Tyler
Kindred v. State Page 10
1998, no pet.) (applying current statutes); see also Gant v. State, 606 S.W.2d
867, 871 n.9 (Tex. Crim. App. 1980).
Id. at 832-33.
This case, however, is factually distinguishable from the Brown case. Here, the
State proffered evidence that Kindred had several prior theft convictions. And at trial,
Kindred pleaded “true” to the theft enhancement paragraphs contained in the
indictment. In addition, unlike Brown, the State proffered evidence of two non-theft
felony offenses of which Kindred was convicted—felony bail jumping on May 31, 1989
and forgery by passing on December 11, 1984.3 See id. at 832. Once again, Kindred
pleaded “true” to the felony enhancement paragraphs contained in the indictment.
Because he had been previously convicted of at least two additional thefts, section
31.03(e)(4)(D) authorized the enhancement of Kindred’s sentence from a class A
misdemeanor to a state-jail felony. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D). And
because he also had been previously convicted of two non-theft felonies, section
12.42(a)(2) authorized the further enhancement of Kindred’s punishment to a second-
degree felony. See id. § 12.42(a)(2). Furthermore, the jury’s sentence of eighteen years
falls within the range prescribed for second-degree felonies. See id. § 12.33 (“An
individual adjudged guilty of a felony of the second degree shall be punished by
imprisonment . . . for any term of not more than 20 years or less than 2 years.”).
Because Kindred’s sentence falls within the range prescribed for second-degree felonies,
3 We note that forgery does not fall into the category of theft offenses for purposes of Texas Penal
Code Section 31.03(e)(4). See Shaw v. State, 794 S.W.2d 544, 545 (Tex. App.—Dallas 1990, no pet.); see also
Watson v. State, 923 S.W.2d 829, 833-34 (Tex. App.—Austin 1996, pet. ref’d). Therefore, felony forgery
convictions can be used to enhance punishment pursuant to section 12.42(a) of the penal code. See TEX.
PENAL CODE ANN. § 12.42(a) (West 2011).
Kindred v. State Page 11
we cannot say that the sentence is unauthorized by law or illegal. See Mizell v. State, 119
S.W.3d 804, 806 (Tex. Crim. App. 2003) (stating that a sentence that is outside the
maximum or minimum range of punishment is unauthorized by law and therefore
illegal); see also Harms v. State, No. 10-09-00226-CR, 2011 Tex. App. LEXIS 4358, at *3
(Tex. App.—Waco June 8, 2011, no pet.) (mem. op., not designated for publication).
B. Excessiveness
In his motion for new trial, Kindred asserted that his sentence “violates his
Constitutional protection to be free from [d]isproportionate [s]entences.” “Generally,
punishment assessed within the statutory limits is not excessive, cruel, or unusual
punishment.” Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.)
(citing Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Alvarez v. State, 63
S.W.3d 578, 580 (Tex. App.—Fort Worth 2001, no pet.)). Given our conclusion that
Kindred’s sentence is authorized by law and within the prescribed range for second-
degree felonies, we cannot say that his eighteen-year sentence is excessive. See id.; see
also Jordan, 495 S.W.2d at 952; Alvarez, 63 S.W.3d at 580.
C. Proportionality
The Eighth Amendment of the United States Constitution prohibits cruel and
unusual punishment, which includes extreme sentences that are grossly
disproportionate to the crime. Graham v. Florida, U.S. , 130 S. Ct. 2011, 2021, 176 L.
Ed. 2d 825 (2010); see U.S. CONST. amend. VIII. “A narrow exception to the general rule
that a sentence within the statutory limits is not excessive, cruel, or unusual is
recognized when the sentence is grossly disproportionate to the offense.” Dale, 170
Kindred v. State Page 12
S.W.3d at 799; see Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111 S. Ct. 2680, 2707, 115 L.
Ed. 2d 836 (1991) (Kennedy J., concurring); Solem v. Helm, 463 U.S. 277, 290-92, 103 S. Ct.
3001, 3010-11, 77 L. Ed. 2d 637 (1983); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.),
cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992).
The United States Supreme Court identified the following three criteria to be
used to evaluate the proportionality of a particular sentence: (1) the gravity of the
offense and the harshness of punishment; (2) the sentences imposed on other criminals
in the same jurisdiction; and (3) sentences imposed for the same offenses in other
jurisdictions. Solem, 463 U.S. at 292, 103 S. Ct. at 3011; see Alvarez, 63 S.W.3d at 580-82.
Only if we determine that the sentence is grossly disproportionate to the offense do we
consider the remaining Solem factors. Id.
Kindred’s extensive criminal history is documented in the record. See Buster v.
State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.) (noting that, in determining
whether a sentence is grossly disproportionate, we consider not only the present offense
but also an accused’s criminal history) (citing Davis v. State, 119 S.W.3d 359, 363 (Tex.
App.—Waco 2003, pet. ref’d)). He has at least ten prior criminal convictions on his
record, including several theft convictions, a conviction for burglary of a habitation, a
bail-jumping conviction, two forgery convictions, and a conviction for burglary of a
motor vehicle. Several of Kindred’s convictions were felonies that resulted in
imprisonment terms in excess of ten years, including one that yielded a life sentence.
Given Kindred’s extensive criminal history and the fact that the sentence imposed falls
within the limits prescribed by a valid statute, we conclude that Kindred’s sentence is
Kindred v. State Page 13
not so grossly disproportionate to the offense as to constitute cruel and unusual
punishment. See Solem, 463 U.S. at 292, 103 S. Ct. at 3011; see also Buster, 144 S.W.3d at
81; Davis, 119 S.W.3d at 363; Alvarez, 63 S.W.3d at 580-82. Accordingly, we overrule
Kindred’s third and fourth issues.
V. MOTIONS FOR SPEEDY TRIAL
In his fifth issue, Kindred asserts that the trial court erred in denying his motions
for speedy trial. Specifically, Kindred argues that he was entitled to a dismissal because
his repeated requests for a speedy trial did not yield a timely trial setting. We disagree.
A. Standard of Review
When reviewing a trial court’s decision on a speedy trial claim, an appellate
court applies a bifurcated standard of review. State v. Munoz, 991 S.W.2d 818, 821 (Tex.
Crim. App. 1999); State v. Jones, 168 S.W.3d 339, 345 (Tex. App.—Dallas 2005, pet. ref’d).
We review legal issues de novo but give deference to the trial court’s resolution of
factual issues. Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005); Munoz, 991
S.W.2d at 821; Jones, 168 S.W.3d at 345. We review a speedy trial claim in light of the
arguments, information, and evidence that was available to the trial court at the time it
ruled. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); Dragoo v. State, 96
S.W.3d 308, 313 (Tex. Crim. App. 2003); Jones, 168 S.W.3d at 345. Under this standard of
review, deference must be given not only to a trial court’s resolution of disputed facts,
but also to the drawing of reasonable inferences from the facts. Kelly, 163 S.W.3d at 726.
We must uphold the trial court’s ruling if it is supported by the record and is
correct under the applicable law. Shaw, 117 S.W.3d at 889; Munoz, 991 S.W.2d at 821;
Kindred v. State Page 14
Jones, 168 S.W.3d at 345. If a violation of the defendant’s right to a speedy trial is
established, the only possible remedy is dismissal of the prosecution. Strunk v. United
States, 412 U.S. 434, 440, 93 S. Ct. 2260, 2263-64, 37 L. Ed. 2d 56 (1973); Dragoo, 96 S.W.3d
at 313; Jones, 168 S.W.3d at 346.
B. Applicable Law
The Sixth Amendment to the United States Constitution provides, in relevant
part, that “in all criminal prosecutions, the accused shall enjoy the right to a speedy . . .
trial.” U.S. CONST. amend. VI; Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184, 33
L. Ed. 2d 101 (1972). This right was made applicable to the states by the Due Process
Clause of the Fourteenth Amendment. U.S. CONST. amend. XIV; see Klopfer v. North
Carolina, 386 U.S. 212, 223-26, 87 S. Ct. 988, 993-95, 18 L. Ed. 2d 1 (1967).
The Texas Constitution likewise provides that “in all criminal prosecutions the
accused shall have a speedy . . . trial.” TEX. CONST. art. 1, § 10. The Texas Court of
Criminal Appeals has traditionally analyzed state constitutional claims of the denial of
a speedy trial under the factors articulated in Barker. See Zamorano v. State, 84 S.W.3d
643, 648 (Tex. Crim. App. 2002).
The primary burden is on the prosecution and the courts to ensure that
defendants are speedily brought to trial. See Chapman v. Evans, 744 S.W.2d 133, 136-37
(Tex. Crim. App. 1988) (orig. proceeding) (citing Turner v. State, 504 S.W.2d 843, 845
(Tex. Crim. App. 1974); McKinney v. State, 491 S.W.2d 404, 407 (Tex. Crim. App. 1973)).
In determining whether one has been denied his federal or state right to a speedy trial, a
court must use a balancing test to weigh the conduct of both the State and the
Kindred v. State Page 15
defendant. See Shaw, 117 S.W.3d at 888 (citing Barker, 407 U.S. at 530, 92 S. Ct. at 2191-
92). The relevant factors to be weighed include, but are not necessarily limited to: (1)
the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his
speedy-trial right; and (4) any prejudice to the defendant resulting from the delay. Id. at
888-89. These “factors must be considered together with other relevant circumstances.”
State v. Smith, 76 S.W.3d 541, 547 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
And, “[n]o single factor is necessary or sufficient to establish a violation of the right to a
speedy trial.” Dragoo, 96 S.W.3d at 313 (citing Barker, 407 U.S. at 533, 92 S. Ct. at 2193-
94). We now turn to our de novo review and independent weighing and balancing of
the relevant Barker factors.
C. Discussion
1. Length of Delay
The length of delay is a triggering mechanism for analysis of the other three
Barker factors. Barker, 407 U.S. at 530-33, 92 S. Ct. at 2191-94; Munoz, 991 S.W.2d at 821.
Unless the delay is presumptively prejudicial, we need not inquire into the other Barker
factors. Munoz, 991 S.W.2d at 821. Generally, a delay of eight months or longer is
considered “presumptively prejudicial” and triggers speedy trial analysis. Whitfield v.
State, 137 S.W.3d 687, 690 (Tex. App.—Waco 2004, no pet.); State v. Rangel, 980 S.W.2d
840, 843 (Tex. App.—San Antonio 1998, no pet.). However, the length of the delay that
will invoke such an inquiry depends upon the circumstances of each case. Zamorano, 84
S.W.3d at 648-49.
Kindred v. State Page 16
The United States Supreme Court has noted that “the delay that can be tolerated
for an ordinary street crime is considerably less than for a serious, complex conspiracy
charge.” Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Zamorano, 84 S.W.3d at 649. If the
accused demonstrates that the time from accusation to trial “has crossed the threshold
dividing ‘ordinary’ from ‘presumptively prejudicial’ delay, a court must then consider
the extent to which that delay stretches beyond the bare minimum needed to trigger
judicial examination of the claim.” Zamorano, 84 S.W.3d at 649. Therefore, a “speedy
trial analysis depends first upon whether the delay is more than ‘ordinary’; if so, the
longer the delay beyond that which is ordinary, the more prejudicial that delay is to the
defendant.” Id. The length of delay for speedy trial purposes is measured from the
time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307,
313, 92 S. Ct. 455, 474-75, 30 L. Ed. 2d 468 (1971); Smith, 76 S.W.3d at 547.
Here, Kindred was arrested on May 21, 2009, and his trial date was October 13,
2010. This amounts to a length of delay of about seventeen months. Under governing
case law, this delay is “presumptively prejudicial” and triggers further analysis;
however, this presumption may be rebutted by the remaining Barker factors. See
Marion, 404 U.S. at 313, 92 S. Ct. at 474-75; Zamorano, 84 S.W.3d at 649; Rangel, 980
S.W.2d at 843; see also Whitfield, 137 S.W.3d at 690-92.
2. Reasons for the Delay
The State bears the burden of justifying the delay. Rangel, 980 S.W.2d at 843.
Courts assign different weights to different reasons for a delay. Dragoo, 96 S.W.3d at
314. A deliberate attempt to delay a trial is weighed heavily against the State, while
Kindred v. State Page 17
more neutral reasons, such as negligence or overcrowded dockets, are weighed less
heavily. Zamorano, 84 S.W.3d at 649. When the record is silent regarding the reasons
for the delay, a court may presume neither a deliberate attempt on the part of the State
to prejudice the defense, nor a valid reason for the delay. Dragoo, 96 S.W.3d at 314. A
valid reason, however, justifies appropriate delay. Id.
In analyzing this prong of the Barker test, we must consider the conduct of both
the State and Kindred. See Burgett v. State, 865 S.W.2d 594, 597 (Tex. App.—Fort Worth
1993, pet. ref’d) (“Delay caused by acts of the accused which are beyond the control of
the prosecution should not weigh against the State. In fact, a defendant may be
disentitled to the speedy trial safeguard when he has or shares responsibility.”) (citing
Dickey v. Florida, 398 U.S. 30, 48, 90 S. Ct. 1564, 1574, 26 L. Ed. 2d (1970); United States v.
Smith, 534 F.2d 74, 75-76 (5th Cir. 1976)). However, we must keep in mind the
excessiveness of the delay because the presumption that pretrial delay has prejudiced
the accused intensifies over time. See Doggett v. United States, 505 U.S. 647, 652, 112 S.
Ct. 2686, 2690-91, 120 L. Ed. 2d 520 (1992).
Though approximately seventeen months elapsed from Kindred’s arrest until his
trial, the record contains several explanations for the delay. Initially, Kindred was
represented by counsel. Counsel requested, on Kindred’s behalf, that the case be
passed on several occasions, including hearings conducted on September 22, 2009;
November 3, 2009; and January 5, 2010. Prior to the January 5, 2010 hearing, Kindred
was out on bail. However, while out on bail, Kindred allegedly committed another
theft, which resulted in his arrest on March 25, 2010, and his subsequent incarceration in
Kindred v. State Page 18
Temple, Texas. Later, at a April 27, 2010 hearing, Kindred’s counsel announced in open
court his intent to withdraw from representing Kindred. Kindred’s counsel
acknowledged that Kindred wanted another lawyer, and Kindred stated, in open court,
that he desired to represent himself, which the trial court allowed after administering
warnings and instructions to Kindred.
Kindred informed the trial court that he had filed three speedy trial motions and
that the first one was filed on July 23, 2010, though this first motion is not included in
the clerk’s record. The other two speedy trial motions were filed on August 16, 2010
and August 25, 2010. On August 3, 2010, evidently after receiving Kindred’s first
speedy trial motion, the trial court conducted a hearing. At this hearing, the trial court
offered Kindred a trial date for the following Monday, August 9, 2010. Kindred
declined the trial court’s offer and insisted that the trial court conduct hearings on
several pro se motions he had filed. As a result, the trial court conducted a hearing on
all of Kindred’s pre-trial motions on August 31, 2010, and subsequently set the case for
trial on October 13, 2010.4
Based on our review of the record, much, if not all, of the delay in procuring a
final trial in this matter are attributable to Kindred’s actions. Kindred’s request for new
counsel, insistence on hearings for all of his numerous pre-trial motions, and his
commission of another theft offense contributed greatly to the delay in this case. See
Zamorano, 84 S.W.3d at 649 (noting that neutral reasons for delays, such as overcrowded
4Also at the hearing on Kindred’s pre-trial motions, the trial court reminded Kindred that he had
been scheduled for trial on February 22, 2010, but Kindred did not show. As a result of his no-show,
Kindred’s bond was forfeited.
Kindred v. State Page 19
dockets, are weighed less heavily against the State); Easley v. State, 564 S.W.2d 742, 745
(Tex. Crim. App. 1978) (holding “[t]hat appellant was being prosecuted on other
charges constitutes a valid reason for the delay in bringing him to trial”); Holmes v. State,
938 S.W.2d 488, 491 (Tex. App.—Texarkana 1996, no pet.) (stating that delays caused by,
among other things, the appointment of new counsel “are not chargeable against the
State”). Furthermore, on appeal, Kindred has not cited anything in the record
demonstrating that the State deliberately delayed his trial in an attempt to prejudice his
defense. Instead, Kindred blames the entire delay on the trial court’s alleged
overcrowded docket. Nevertheless, based on the foregoing, we conclude that this factor
weighs in favor of the State.
3. Kindred’s Assertion of His Right to a Speedy Trial
A defendant’s assertion of his speedy trial right is entitled to strong evidentiary
weight in determining whether the defendant was being deprived of the right. Barker,
407 U.S. at 531-32, 92 S. Ct. at 2192-93. A defendant has some responsibility to assert his
right to a speedy trial, and his failure to do so strongly indicates that he did not really
want a speedy trial. See Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992). The
manner in which a defendant raises a speedy-trial complaint is also significant. See id.
As noted earlier, Kindred filed his first motion for speedy trial on July 23, 2010,
more than a year after he was arrested for this offense. Texas courts have held that
delays shorter than the one involved here weigh against the defendant. See Whitfield,
137 S.W.3d at 691 (stating that defendant’s failure to assert his right to a speedy trial for
over 300 days weighed against him); Jones, 168 S.W.3d at 349 (holding that a delay of
Kindred v. State Page 20
nine months in asserting a right to a speedy trial weighed against the defendant). In
addition, the trial court offered Kindred a trial date a few days after the hearing on his
first motion for speedy trial was conducted, but Kindred rejected this offer.
Furthermore, six different pre-trial hearings were conducted in this matter beginning
with his arraignment on August 25, 2009, and it was not until July 23, 2010 that Kindred
decided to first assert his right to a speedy trial. Based on the foregoing, we conclude
that this factor weighs against Kindred.
4. Prejudice Resulting from the Delay
Prejudice, the fourth factor, is to be considered in light of the interests that the
right to a speedy trial was designed to protect. Barker, 407 U.S. at 532, 92 S. Ct. at 2193.
These interests include: (1) prevention of extended pre-trial incarceration; (2)
minimization of anxiety over pending charges; and (3) the prevention of actual
prejudice to the defendant’s ability to present a defense. Id. “Of these forms of
prejudice, ‘the most serious is the last, because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system.’” Dragoo, 96 S.W.3d at 315
(quoting Barker, 407 U.S. at 532, 92 S. Ct. at 2193).
With regard to the prejudice prong, Kindred complains that he was forced to
remain in custody between July 13, 2010 and October 13, 2010, and that his incarceration
caused him to lose his job as a truck driver for Wal-Mart and led to a disruption of his
family life and financial affairs. Kindred also alleged that his “stay in jail was filled
with anxiety and stress regarding the charges against him. [He] could not avoid the
pressure of the upcoming trial and all [he] wished was for it to be over.”
Kindred v. State Page 21
We first note that, with regard to this matter, Kindred was out on bond until he
was arrested for having committed another theft offense in Bell County on November 9,
2009. This second theft constituted a violation of Kindred’s bond provisions. Thus, he
was incarcerated for not only this offense but also the second theft offense committed in
Bell County. “’Under these circumstances we are . . . mainly concerned with whether or
not appellant’s ability to defend himself was prejudiced by the delay.’” Dragoo, 96
S.W.3d at 315 (quoting McCarty v. State, 498 S.W.2d 212, 218 (Tex. Crim. App. 1973)).
The most important consideration is whether the defense was impaired by the
delay. Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Munoz, 991 S.W.2d at 826. On appeal,
Kindred has not demonstrated that his defense was impaired in any way by the delay.
In fact, the record reflects that, after Kindred rejected the trial court’s offer to conduct a
trial on August 9, 2010, the trial court scheduled another hearing to accommodate
Kindred’s request to argue all of his remaining pre-trial motions. Furthermore, Kindred
did not present any evidence at the hearings on his motions for speedy trial showing
that he was prejudiced. And, to the extent that Kindred argues that the prejudice prong
was satisfied by his general allegations of anxiety and stress, we note that the court of
criminal appeals has held that:
[G]eneral anxiety is at least some evidence of the type of anxiety that the
Supreme Court considers under the prejudice prong of Barker. But
evidence of generalized anxiety, though relevant, is not sufficient proof of
prejudice under the Barker test, especially when it is no greater anxiety or
concern beyond the level normally associated with a criminal charge or
investigation.
Kindred v. State Page 22
Cantu v. State, 253 S.W.3d 273, 285-86 (Tex. Crim. App. 2008) (internal citations &
quotation marks omitted). On appeal, Kindred does not cite any evidence in the record
demonstrating more than generalized anxiety. See id. Therefore, based on the
foregoing, we conclude that this factor weighs in favor of the State.
5. Balancing the Barker Factors
The only Barker factor that clearly weighs in favor of Kindred is the first factor
pertaining to the length of the delay. Because the remaining Barker factors weigh in
favor of the State, we conclude that the trial court did not err in denying Kindred’s
motions for a speedy trial. Accordingly, we overrule Kindred’s fifth issue.
VI. CONCLUSION
Having overruled all of Kindred’s issues, we affirm.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 21, 2011
[CR25]
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