David Everett Stevens v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00531-CR
DAVID EVERETT STEVENS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 52,590-C
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MEMORANDUM OPINION1
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Appellant David Everett Stevens was tried by jury and found guilty of
criminal solicitation of capital murder for remuneration. The jury assessed
punishment at seventy-five years’ confinement. He brings a single issue forward
on appeal: Was he deprived of his Sixth Amendment right to a speedy trial? We
affirm the judgment.
1
See Tex. R. App. P. 47.4.
FACTS
In March 2010, informer Juan Gutierrez told Wichita Falls police
investigators that Appellant had given him a $200.00 deposit and promised
another $1,800.00 if Gutierrez would kill Matthew McCann, who was living with
Appellant’s estranged wife. On March 15, 2010, Gutierrez, cooperating with
Wichita Falls police and the intended victim, McCann, telephoned Appellant and
told him that he was going to kill McCann that afternoon and, as proof of the
deed, that he would bring McCann’s wallet and cell phone to Appellant at the
Love’s Truck stop at 1124 Central Freeway in Wichita Falls. Later that afternoon,
as arranged, Gutierrez arrived at the truck stop in McCann’s vehicle, told
Appellant that he had killed McCann, and handed McCann’s wallet and cell
phone to Appellant. After Appellant handed Gutierrez eighteen one-hundred
dollar bills, the sting was made, and Appellant was arrested by Wichita Falls
police officers.
From the abbreviated record before us, it appears that Appellant’s bond
was initially set at $2.5 million. Bond reduction motions were filed in March and
April 2010, and a writ of habeas corpus was filed in August 2010, but it does not
appear that he was released as a result. The record does show that he was
released from custody on April 19, 2012, but it is not clear how. Appellant’s bond
was then raised to $10 million on September 18, 2012, and curiously, he was
indicted the following day—September 19, 2012.
2
The essence of Appellant’s argument is that he spent 790 days in jail from
his arrest to his sentencing in violation of his right to a speedy trial.
DISCUSSION
The Sixth Amendment to the United States Constitution provides in part:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial . . . .” U.S. Const. amend. VI. Nevertheless, as the State asserts, we
must give short shrift to Appellant’s right to a speedy trial because he failed to
raise such a claim in the trial court and thus did not preserve the issue for
appellate review. Henson v. State, 407 S.W.3d 764, 769 (Tex. Crim. App. 2013),
cert. denied, 134 S. Ct. 934 (2014). In Henson, the court of criminal appeals
unambiguously held that a defendant must, as per Texas Rule of Appellate
Procedure 33.1, first preserve error for appellate review through a timely
objection in the trial court before he is entitled to have considered the four-prong
balancing test created in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972),
to determine whether his constitutional right to a speedy trial has been violated.
Henson, 407 S.W.3d at 769.
Appellant concedes that he did not object on Sixth Amendment grounds;
thus, we2 must overrule his only issue on appeal and affirm the judgment of the
trial court.
2
Writing only for myself, I believe that Judge Myers’s dissent in Henson is
the more proper guidepost we should follow. See Henson, 407 S.W.3d at 769–
770 (Myers, J., dissenting).
3
/s/ David Wellington Chew
DAVID WELLINGTON CHEW
SENIOR JUSTICE
PANEL: LIVINGSTON, C.J.; GABRIEL, J.; and DAVID WELLINGTON CHEW
(Senior Justice, Retired, Sitting by Assignment).
GABRIEL, J., concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: September 18, 2014
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