Oliver Alexander Callender, III v. State ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00069-CR
OLIVER ALEXANDER CALLENDER, III, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Randall County, Texas
Trial Court No. 23,267-B, Honorable John B. Board, Presiding
December 12, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Oliver Alexander Callender, III, appeals his conviction for the unauthorized use of
a motor vehicle. His two issues on appeal concern 1) the purported denial of his right to
a speedy trial, and 2) the constructive denial of his right to counsel. We affirm the
judgment.
Speedy Trial
We overrule appellant's contention regarding the purported denial of his right to a
speedy trial for two reasons. First, it was not preserved. His trial counsel did not
broach the issue before the trial court. Henson v. State, 407 S.W.3d 764, 769 (Tex.
Crim. App. 2013) (recognizing that the right to a speedy trial may be waived by the
failure to bring it to the attention of the trial court); Hucks v. State, 348 S.W.3d 359, 363
(Tex. App.—Amarillo 2011, no pet.) (holding the same). And, that appellant personally
may have solicited a speedy trial, after being appointed counsel to represent him, does
not fill the void. Defendants are not entitled to hybrid representation, and the trial court
may disregard any pro se motions presented by a defendant represented by counsel.
Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007).
Second, even if it was preserved, the record fails to illustrate any violation of the
imperative. Appellant committed the crime involved on February 12, 2012. The
authorities arrested him approximately a month later, that is, during the second week of
March, 2012. An indictment issued against him on June 27, 2012, and he ultimately
was tried on February 2, 2013. So, about eleven months lapsed between his arrest and
trial.
Yet, the February 2013 setting was not the first assigned to the cause. Rather,
the proceeding was originally scheduled for trial in September of 2012 before the 251st
Judicial District Court. The matter was not heard then because the State moved for a
continuance due to the absence of a witness. More importantly, appellant, via his
counsel, joined in the motion. Thereafter, the cause was transferred from the 251st
Judicial District to the 181st Judicial District in December of 2012. And, the latter court
tried the matter on the date mentioned above.
Appellant remained jailed throughout the period between his arrest and trial.
This was because of an outstanding, non-bondable, parole warrant prohibiting his
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release. And, if the content of his various letters are given any credence, then it
appears that he began demanding a speedy trial soon after his arrest.
Yet, nothing of record identifies the loss of any specific evidence or witnesses
favorable to appellant during the 11-month interim.1 Nor are we cited to any evidence of
record suggesting that the delay hampered appellant's ability to defend himself. And,
while testifying on his own behalf at trial, appellant acknowledged the difficulty his
attorney experienced in subpoenaing various records. So too did he acknowledge that
delay was also attributable, in part, to "some of the things . . . [he] asked . . . [his
attorney] to do to try to work on . . . [his] case[.]"
We concede that one's stay in jail is oppressive and inflicts upon the accused
anxiety and concern. We further assume that appellant, at bar, suffered from such
oppression, anxiety, and concern during his incarceration. But, nothing we found of
record suggests that it was of the type different than that suffered by any other person
awaiting trial in jail. Cantu v. State, 253 S.W.3d 273, 285-86 (Tex. Crim. App. 2008)
(stating that "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").2
1
Appellant did opine that the delay caused him to lose evidence. Yet, he never described the
tenor of that evidence. Such is important because only then can we gauge whether its absence was
prejudicial. Shea v. State, 167 S.W.3d 98, 103 (Tex. App.—Waco 2005, pet. ref’d) (noting that to
establish prejudice because of an unavailable witness, a defendant must show that the witness is
unavailable, that his testimony might be material and relevant to his case, and that he has exercised due
diligence in his attempt to find and produce him for trial). And, as for the one named witness who could
not be located, we do not know if his absence was attributable to any delay in trying the cause or to the
lack of an adequate address. Nor does appellant allude to the nature of his testimony or suggest how it
could have benefitted him.
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Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)
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Our analysis of appellant's speedy trial complaint takes into consideration the test
and methodology expressed in Henson v. State and Cantu v. State, which cases are
cited above. And, in applying that methodology, we cannot but find no violation. The
eleven-month period between arrest and trial was quite close to the minimum needed to
trigger a speedy trial analysis, to begin with. Shaw v. State, 117 S.W.3d 883, 889-90
(Tex. Crim. App. 2003) (noting that analysis is normally required when the delay
approaches one year). Of that period, some of the delay was attributable to appellant's
approval of a continuance and need to search for evidence and develop a defense.
Other was legitimately attributable to the State's need to prepare for trial. See id. at
889-90 (noting that the three-month interval between appellant's indictment and first trial
may not be counted against the State, since the State was entitled to a reasonable
period in which to prepare its case). And, most importantly, nothing illustrates a loss of
evidence or witnesses needed to present a defense, much less a causal connection
between the loss and the delay. See Cantu v. State, 253 S.W.3d at 285 (noting that
delay resulting in the impairment of an accused's right to prepare a defense is the most
weighty indicia to consider when assessing prejudice).
It is true that appellant said he wanted a speedy trial; yet, it is equally true that he
is not entitled to a trial at a time of his choosing. In re Carter, 958 S.W.2d 919, 924
(Tex. App.—Amarillo 1997, orig. proceeding). The wheels of justice must be afforded a
reasonable amount of time to turn, and the time taken here did not deny appellant a
speedy trial when all circumstances are considered. See Meyer v. State, 27 S.W.3d
644, 651 (Tex. App.—Waco 2000, pet. ref’d) (wherein a 23-month unexplained delay
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wherein appellant sat in jail was held not to be a speedy trial violation given the lack of
prejudice).
Constructive Denial of Counsel
Appellant next argues that he was constructively denied counsel because
counsel failed to request a speedy trial. As illustrated above, appellant received a
speedy trial. Thus, we cannot fault his attorney for denying him what he actually
received. The issue is overruled.
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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