Adrian Nathan Salazar v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00105-CR
ADRIAN NATHAN SALAZAR APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Adrian Nathan Salazar appeals his conviction for failing to
comply with a sex offender registration requirement.2 In one point, he argues
that the trial court erred by denying his motion in arrest of judgment, in which he
contended that he had not received a speedy trial. We affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Code Crim. Proc. Ann. art. 62.102(a) (Vernon 2006).
Background Facts
In September 2007, a grand jury indicted appellant with failing to comply
with a sex offender registration requirement. The indictment alleged that
appellant had a 2001 conviction for indecency with a child, which required him to
register as a sex offender, and that he did not provide the Fort Worth Police
Department with timely notice that he was changing his address. The indictment
also contained a repeat offender notice, which alleged that appellant had
previously been convicted of deadly conduct by discharging a firearm at a
habitation.
In October 2008, appellant filed several pretrial motions relating to, among
other matters, discovery of the State‘s evidence and potential witnesses. After
the State filed some business records in April 2009, the parties appeared at a
status conference on November 4, 2009, and the trial court scheduled trial to
begin approximately two weeks later. On November 13, 2009, however,
appellant pled guilty, and the State waived the repeat offender notice.3 Appellant
3
On appeal, appellant refers to his guilty plea as a ―negotiated open plea.‖
Appellant‘s plea paperwork states that he pled guilty to a third-degree felony.
Generally, ―if it is shown on the trial of a . . . third-degree felony that the
defendant has been once before convicted of a felony, on conviction he shall be
punished for a second-degree felony.‖ Tex. Penal Code Ann. § 12.42(a)(3)
(Vernon Supp. 2010). The State‘s agreement to waive the repeat offender notice
in conjunction with appellant‘s guilty plea capped the amount of confinement that
appellant could have received at ten years (the third-degree felony maximum)
instead of twenty years (the second-degree felony maximum). See id. §§ 12.33–
.34 (Vernon Supp. 2010), .42(a)(3). Thus, the guilty plea qualifies as a plea
bargain under Texas Rule of Appellate Procedure 25.2. See Tex. R. App. P.
2
received written admonishments, expressly waived many constitutional and
statutory rights, and entered a judicial confession.
The trial court ordered the preparation of a presentence investigation
report, and appellant made several objections to the report. After a sentencing
hearing in January 2010, at which appellant testified and elicited testimony from
his father-in-law, the trial court sentenced appellant to six years‘ confinement.
The trial court signed its judgment of conviction and a certification of appellant‘s
right to appeal that, without limitation, gave him permission to appeal.4
The next month, appellant filed a motion in arrest of judgment 5 to assert
that his right to a speedy trial had been violated because ―nearly twenty-eight
(28) months passed from the date [appellant] was arrested until the trial court
heard evidence and sentenced [appellant].‖ Appellant asked the trial court to
dismiss his indictment with prejudice. He conceded that he did not assert his
right to a speedy trial until after the trial court convicted and sentenced him, but
25.2(a)(2); Shankle v. State, 119 S.W.3d 808, 813 (Tex. Crim. App. 2003);
Carender v. State, 155 S.W.3d 929, 931 (Tex. App.—Dallas 2005, no pet.).
4
The certification states that the case was ―a plea-bargain case, but the
trial court has given permission to appeal, and the defendant has the right of
appeal.‖ See Tex. R. App. P. 25.2(a)(2)(B).
5
See Tex. R. App. P. 22.1.
3
he relied on one of our previous opinions to contend that his assertion of the right
was still timely.6 He also signed a declaration stating,
[M]y perceived failure, if any, to more promptly complain of the
denial of my right to a speedy trial was not the result of any design or
strategic decision on the part of my trial counsel, or the result of my
making a ―knowing‖ decision to acquiesce in the prior delay between
my arrest, return of indictment, and my trial. Rather, this failure, if
any, was apparently an inadvertent failure on the part of my trial
counsel . . . . If I had known of my right to file a motion to dismiss
based on speedy trial grounds, I would have insisted that such a
motion be prepared and filed by my attorney. But for [trial counsel‘s]
failure to inform me of said right, I further declare that I would have
never pled guilty . . . .
Appellant presented the motion in arrest of judgment to the trial court on
the day he filed it. The trial court questioned whether it had jurisdiction to
consider the motion and said that it was ―not going to be granting any relief‖ on it.
The court did not expressly grant or deny the motion, so the motion was deemed
denied.7 Appellant filed notice of this appeal.
Our Jurisdiction
In its only response to appellant‘s contention that the trial court erred by
denying his motion in arrest of judgment, the State contends that we lack
jurisdiction because appellant entered a plea bargain and cannot establish that
he is appealing matters raised and ruled on before trial or that he received the
6
See Orand v. State, 254 S.W.3d 560, 568, 572 (Tex. App.—Fort Worth
2008, pet. ref‘d) (holding that a defendant‘s speedy trial rights were violated
although he asserted them after his conviction).
7
See Tex. R. App. P. 22.4(b).
4
trial court‘s specific permission to appeal his speedy trial point. See Tex. R. App.
P. 25.2(a)(2) (limiting appeals after a defendant enters a plea bargain); Turley v.
State, 242 S.W.3d 178, 180 (Tex. App.—Fort Worth 2007, no pet.) (mem. op.)
(dismissing an issue because the defendant did not receive permission to appeal
his complaint about the trial court‘s alleged refusal to hold a hearing on a motion
for new trial). The State asserts that because ―the record in this case does not
show that Appellant had permission to appeal any actions of the trial court which
occurred post-trial, his claim should be dismissed for lack of jurisdiction.‖
But the State has not cited authority in which a court dismissed an issue or
an appeal arising from a plea-bargained case when the trial court gave unlimited,
global permission to appeal but did not give specific permission to appeal the
issue complained about.8 Instead, the State cites authority in which the trial court
did not grant any permission to appeal. See, e.g., Turley, 242 S.W.3d at 180;
Estrada v. State, 149 S.W.3d 280, 282, 285 (Tex. App.—Houston [1st Dist.]
2004, pet. ref‘d) (op. on reh‘g). We have not found precedential authority
addressing whether an appellant may appeal matters that are raised for the first
time in the trial court after the court has given permission to appeal. However,
because the trial court‘s certification in this case unambiguously grants appellant
permission to appeal, the trial court verbally granted a right to appeal at the end
8
We note that rule 25.2(a)(2)(B) uses general terms; it does not state that a
defendant may appeal only after getting the trial court‘s permission to appeal the
specific issues that the defendant plans to raise in the appeal. See Tex. R. App.
P. 25.2(a)(2)(B).
5
of the sentencing hearing, and the trial court became aware of appellant‘s desire
to appeal his speedy trial point and did not thereafter amend the certification to
state that he could not do so, we hold that appellant has the right to appeal the
point under rule 25.2(a)(2)(B). We will proceed to address the merits of the
point.9
Appellant’s Right to a Speedy Trial
Appellant succinctly argues that the trial court erred by denying his motion
in arrest of judgment, which was based on his claim that he did not receive a
speedy trial. As part of his point, appellant seems to contend that the trial court
erred by not granting an evidentiary hearing on the motion. But when appellant‘s
counsel presented the motion, he told the court, ―[I]t‘s up to you whether you give
us a hearing or not.‖ The trial judge told him that he had an ―absolute right‖ to
―place something on the record‖ and asked him whether there was ―any relief that
[he was] specifically seeking.‖ Appellant did not respond by asking for an
evidentiary hearing. Later, the judge said, ―You were allowed to make a record.
Is there anything else that needs to be made?‖ Appellant‘s counsel responded,
―No, sir, not at this time.‖ Further, we cannot conclude that the trial court‘s
statement that it was not going to grant ―relief‖ toward the end of the presentment
9
The State also contends that appellant waived his right to appeal as part
of his plea bargain. But ―the trial court‘s subsequent handwritten permission to
appeal controls over a defendant‘s previous waiver of the right to appeal,
allowing the defendant to appeal despite the boilerplate waiver.‖ Willis v. State,
121 S.W.3d 400, 403 (Tex. Crim. App. 2003); see Perez v. State, 129 S.W.3d
282, 288 (Tex. App.—Corpus Christi 2004, no pet.).
6
hearing signified that it was refusing to conduct an evidentiary hearing on
appellant‘s motion.
Thus, we hold that the record does not support appellant‘s contention that
the trial court refused to hold an evidentiary hearing, and we conclude that to the
extent that his point rests on the lack of an evidentiary hearing, he has forfeited
the point by not obtaining a ruling on whether he could have such a hearing.
See Tex. R. App. P. 33.1(a)(2); Layton v. State, 280 S.W.3d 235, 238–39 (Tex.
Crim. App. 2009); Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004);
Lee v. State, 186 S.W.3d 649, 658 (Tex. App.—Dallas 2006, pet. ref‘d) (―To the
extent appellant complains on appeal of the trial court‘s requirement that the
evidence be submitted by affidavit [in a motion for new trial hearing], we conclude
the complaint was not preserved for appellate review because appellant did not
object to that requirement.‖); Adams v. State, 132 S.W.3d 701, 702 (Tex. App.—
Amarillo 2004, no pet.) (mem. op.) (holding that the defendant forfeited his
complaint that the trial court denied a motion to suppress without holding a
hearing when the defendant did not complain in the trial court about the lack of a
hearing); Bouldin v. State, 100 S.W.3d 355, 355–56 (Tex. App.—San Antonio
2002, no pet.) (holding that a defendant‘s complaint that he should have been
permitted to present evidence during a motion for new trial hearing was forfeited
because the defendant did not object to the truncated nature of the hearing).
Also, if there was particular evidence that appellant wanted to offer on the
speedy trial point, he could have submitted an offer of proof to show what the
7
evidence would have established.10 See Warner v. State, 969 S.W.2d 1, 2 (Tex.
Crim. App. 1998).
We therefore deny appellant‘s request that we ―abate this appeal and
remand said case to the trial court with instructions to consider Appellant‘s
motion in arrest of judgment.‖ As explained above, the motion has already been
denied. See Tex. R. App. P. 22.4(b). Although appellant‘s only specifically
requested relief is abatement and remand, and although appellant‘s brief does
not contain significant analysis of his speedy trial claim, in the interest of justice,
we will determine the merits of that claim on the record that has been made
available to us.
In reviewing a trial court‘s decision to deny an appellant‘s speedy trial
claim, we generally apply a bifurcated standard of review, comprising an abuse
of discretion standard for the factual components and a de novo standard for the
legal components of the trial court‘s decision. State v. Munoz, 991 S.W.2d 818,
821 (Tex. Crim. App. 1999). The Sixth Amendment to the United States
Constitution guarantees an accused‘s right to a speedy trial. U.S. Const. amend
VI; Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002); Orand, 254
S.W.3d at 565. In addition, the Texas constitution guarantees the accused‘s right
to a speedy trial. Tex. Const. art. I, § 10; Zamorano, 84 S.W.3d at 647.
10
We also note that appellant‘s brief does not disclose any evidence he
wishes to present that would impact his speedy trial claim but that is not in the
record.
8
―On its face, the [federal] Speedy Trial Clause is written with such breadth
that, taken literally, it would forbid the government to delay the trial of an
‗accused‘ for any reason at all.‖ Zamorano, 84 S.W.3d at 647 (quoting Doggett v.
United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 2690 (1992)); Orand, 254
S.W.3d at 565. Thus, in Barker v. Wingo, the Supreme Court qualified the literal
sweep of the provision by analyzing the constitutional question in terms of four
specific factors: (1) whether the delay before trial was uncommonly long;
(2) whether the government or the defendant is more to blame for the delay;
(3) whether in due course, the defendant asserted his right to a speedy trial; and
(4) whether the defendant suffered prejudice as the delay‘s result. 407 U.S. 514,
530–32, 92 S. Ct. 2182, 2192–93 (1972).11
Under Barker, we must analyze federal constitutional speedy trial claims
by first weighing the strength of each of the above factors and then balancing
their relative weights in light of the conduct of both the prosecution and the
defendant. Zamorano, 84 S.W.3d at 648; Munoz, 991 S.W.2d at 821; Orand,
254 S.W.3d at 565. None of the four factors is either a necessary or sufficient
condition to the finding of a deprivation of the right to a speedy trial; instead, all
factors must be considered together along with any other relevant circumstances.
11
Although the ―Texas constitutional speedy trial right exists independently
of the federal guarantee,‖ courts analyze the federal and state rights using the
same balancing considerations. Zamorano, 84 S.W.3d at 648; see Harris v.
State, 827 S.W.2d 949, 956 (Tex. Crim. App.), cert. denied, 506 U.S. 942 (1992);
Murphy v. State, 280 S.W.3d 445, 450 (Tex. App.—Fort Worth 2009, pet. ref‘d).
9
Zamorano, 84 S.W.3d at 648; Orand, 254 S.W.3d at 565. No one factor
possesses ―talismanic qualities‖; thus, courts must ―engage in a difficult and
sensitive balancing process‖ in each individual case. Zamorano, 84 S.W.3d at
648 (quoting Barker, 407 U.S. at 533, 92 S. Ct. at 2193); Orand, 254 S.W.3d at
565–66.
We must apply the Barker balancing test with common sense and
sensitivity to ensure that charges are dismissed only when the evidence shows
that a defendant‘s actual and asserted interest in a speedy trial has been
infringed. Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008). ―While
the State has the burden of justifying the length of delay, the defendant has the
burden of proving the assertion of the right and showing prejudice.‖ Murphy, 280
S.W.3d at 450. ―[T]he greater the State‘s bad faith or official negligence and the
longer its actions delay a trial, the less a defendant must show actual prejudice or
prove diligence in asserting his right to a speedy trial.‖ Id. at 450–51.
Length of delay
―The Barker test is triggered by a delay that is unreasonable enough to be
‗presumptively prejudicial.‘ There is no set time element that triggers the
analysis, but [the court of criminal appeals has] held that a delay of four months
is not sufficient while a seventeen-month delay is.‖ Cantu, 253 S.W.3d at 281;
see Murphy, 280 S.W.3d at 451; Orand, 254 S.W.3d at 566 (―The length of delay
between the initial charge and the trial acts as a triggering mechanism, and
unless the length of this delay is presumptively prejudicial, courts need not
10
inquire into or examine the other three speedy trial factors.‖). The length of delay
that can be tolerated for an ordinary, simple crime is considerably less than for a
more serious, complex charge. Zamorano, 84 S.W.3d at 649. ―Presumptive
prejudice does not necessarily indicate a statistical probability of prejudice; it
simply marks the point at which courts deem the delay unreasonable enough to
trigger the Barker inquiry.‖ Murphy, 280 S.W.3d at 452.
The length of delay between appellant‘s September 2007 indictment and
his November 2009 guilty plea, a time span of more than two years, is
presumptively prejudicial. See Cantu, 253 S.W.3d at 281; Murphy, 280 S.W.3d
at 451. Thus, the delay triggers our analysis of the remaining Barker factors.
See Murphy, 280 S.W.3d at 452; Orand, 254 S.W.3d at 566.
Reasons for the delay
The record does not establish particular reasons for the delay between
appellant‘s indictment and his plea. In October 2007, a month after the grand
jury indicted appellant, he signed a document to express his choice to hire
counsel. The State announced that it was ready for trial in January 2008.
Appellant‘s retained counsel made an appearance in February 2008. 12
According to the clerk‘s record filed in this appeal, the next official action in the
case occurred in October 2008, when appellant filed several pretrial motions. In
12
Thus, the record indicates that appellant possibly searched for counsel to
retain between October 2007 and February 2008.
11
April 2009, the State filed some business records, and in October 2009,
appellant‘s case was transferred to the trial court from another district court.
It is impossible to determine why (apparently, as based on this record)
nothing happened in appellant‘s case for long stretches of time in 2008 and
2009.13 In Murphy, although no evidence was presented about the reason for
inactivity in a four-year period, we noted that the ―primary burden of insuring that
cases are brought to trial rests on the courts and prosecution.‖ 280 S.W.3d at
453; see Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994) (―The
State has the initial burden of justifying a lengthy delay.‖), cert. denied, 513 U.S.
1192 (1995). We therefore counted the four-year period as a factor against the
State, but we explained that ―because there was no evidence that the State was
engaging in purposeful dilatory tactics, it [did] not count heavily against the
State.‖ Murphy, 280 S.W.3d at 453; see also Zamorano, 84 S.W.3d at 649
(stating that a ―deliberate attempt to delay the trial in order to hamper the defense
should be weighted heavily against the government,‖ while a ―more neutral
reason . . . should be weighted less heavily but nevertheless should be
considered since the ultimate responsibility for such circumstances must rest with
13
In appellant‘s motion in arrest of judgment, he stated that he rejected
plea offers ―from February 22, 2008, to August 11, 2008.‖ To the extent that the
six-month delay from February 2008 to August 2008 was caused by plea
negotiations, such negotiations are a ―valid reason for the delay and should not
be weighed against the prosecution.‖ Munoz, 991 S.W.2d at 824. Appellant‘s
motion also stated that the trial court had five settings for trial in 2008 and 2009;
it did not explain why the trial did not commence on those dates.
12
the government rather than with the defendant‖) (quoting Barker, 407 U.S. at
531, 92 S. Ct. 2192).
The State did not respond to appellant‘s motion in arrest of judgment to
show any reason for the delay in bringing this case to trial. Thus, like in Murphy,
we will count the unexplained delay as a factor in favor of appellant‘s speedy trial
claim, but only slightly. Murphy, 280 S.W.3d at 453; see Dragoo v. State, 96
S.W.3d 308, 314 (Tex. Crim. App. 2003).
Appellant’s assertion of his speedy trial rights
As the court of criminal appeals explained in Cantu,
The nature of the speedy-trial right makes ―it impossible to
pinpoint a precise time in the process when the right must be
asserted or waived, but that fact does not argue for placing the
burden of protecting the right solely on defendants.‖ The defendant
has no duty to bring himself to trial; that is the State‘s duty. But a
defendant does have the responsibility to assert his right to a speedy
trial. Whether and how a defendant asserts this right is closely
related to the other three factors because the strength of his efforts
will be shaped by them. ―The more serious the deprivation, the more
likely a defendant is to complain.‖ Therefore, the defendant‘s
assertion of his speedy-trial right (or his failure to assert it) is entitled
to strong evidentiary weight in determining whether the defendant is
being deprived of the right. Filing for a dismissal instead of a speedy
trial will generally weaken a speedy-trial claim because it shows a
desire to have no trial instead of a speedy one. If a defendant fails
to first seek a speedy trial before seeking dismissal of the charges,
he should provide cogent reasons for this failure. Repeated
requests for a speedy trial weigh heavily in favor of the defendant,
while the failure to make such requests supports an inference that
the defendant does not really want a trial, he wants only a dismissal.
253 S.W.3d at 282–83 (citations and footnotes omitted).
13
Here, appellant did not really make any request for a speedy trial. Rather,
by the time appellant invoked his right to a speedy trial, appellant‘s plea,
conviction, and sentencing (to six years‘ confinement, which is on the higher end
of the third-degree felony range) had already occurred.14 Appellant has not
provided cogent reasons for his failure to seek a speedy trial before entering his
guilty plea, nor has he established that he really wanted one instead of a
dismissal. His declaration in the trial court stated, ―If I had known of my right to
file a motion to dismiss based on speedy trial grounds, I would have insisted that
such a motion be prepared and filed by my attorney.‖ [Emphasis added.]
In Murphy, Murphy did not assert her right to a speedy trial until a motion
to dismiss that was filed ninety-two months after her arrest. 280 S.W.3d at 454.
Murphy then filed another motion to dismiss less than a year after filing the first
one. Id. She also testified that she asked her attorney several times why her
trial had not started. Id. Because Murphy ―did not assert her right to a speedy
trial for a lengthy period of time, and then once she did assert the right it was in
the form of a motion to dismiss the charges against her, we conclude[d] that this
14
Appellant declared in the trial court that his delay in asserting his speedy
trial right was not the result of a strategic decision. In general, we would be
reluctant to issue an opinion that would encourage a defendant who plans on
pleading guilty without a punishment recommendation by the State, rather than
on taking a case to trial, to gamble by waiting until the trial court makes its
sentencing decision and then, if the decision is not favorable to the defendant,
seeking acquittal on the basis that a trial did not occur quickly enough.
14
factor weigh[ed] against Murphy and against her claim that she was denied her
right to a speedy trial.‖ Id.
Appellant did much less, and waited until a later point in the proceedings
(after his guilty plea and sentencing hearing), to assert his right to a speedy trial
than Murphy did. We hold that this factor weighs heavily against appellant.
See Dragoo, 96 S.W.3d at 314–15 (deciding that a defendant‘s quiet
acquiescence to a longer than three-year delay weighed heavily in favor of the
State); Emery, 881 S.W.2d at 709 (―Appellant‘s sparse and delinquent assertions
of his right to a speedy trial weigh in favor of the State‘s position.‖); Schenekl v.
State, 996 S.W.2d 305, 313 (Tex. App.—Fort Worth 1999), aff’d, 30 S.W.3d 412
(Tex. Crim. App. 2000); Parkerson v. State, 942 S.W.2d 789, 791 (Tex. App.—
Fort Worth 1997, no pet.) (―Appellant‘s request for a dismissal instead of a
speedy trial weakens his claim because it shows a desire to have no trial instead
of a speedy trial. Therefore, the third Barker factor weighed against Appellant.‖)
(citations omitted); cf. Zamorano, 84 S.W.3d at 647, 651 (holding that a late
assertion of the right to a speedy trial did not weigh against the defendant
because the defendant filed a second attempt to seek a speedy trial after the trial
court denied his initial motion, and both assertions of the right occurred before
the defendant‘s no contest plea); Orand, 254 S.W.3d at 568–69 (concluding that
although the defendant waited until after his conviction from a contested trial to
assert his right to a speedy trial, that fact did not weigh against him because the
crux of his speedy trial complaint was not the delay between his arrest and his
15
trial but a nearly twelve-year delay between when he was indicted and when he
learned of the charge and turned himself in to authorities).
Prejudice
The rights to a speedy trial protect three interests of the defendant:
freedom from oppressive pretrial incarceration, mitigation of the anxiety and
concern accompanying public accusation, and avoidance of impairment to the
accused‘s defense. Cantu, 253 S.W.3d at 285; see Clarke v. State, 928 S.W.2d
709, 715 (Tex. App.—Fort Worth 1996, pet. ref‘d) (op. on reh‘g). ―It is the
defendant‘s burden to make a prima facie showing of prejudice. Once the
defendant does so, it is the State‘s ‗obligation of proving that the accused
suffered no serious prejudice beyond that which ensued from the ordinary and
inevitable delay.‘‖ Clarke, 928 S.W.2d at 716 (quoting Ex parte McKenzie, 491
S.W.2d 122, 123 (Tex. Crim. App. 1973)).
In his motion in arrest of judgment, appellant asserted that he had suffered
―oppressive bond conditions . . . for over two (2) years,‖ oppressive incarceration
―at the present time‖ (after he had already been convicted and sentenced), and
―substantial anxiety and concern.‖ Appellant did not provide any particular facts
to support his otherwise conclusory claims about the bond conditions or his
anxiety; his failure to do so weighs against his claim of prejudice. See State v.
Smith, 76 S.W.3d 541, 552 (Tex. App.—Houston [14th Dist.] 2002, pet. ref‘d)
(holding that bare, conclusory assertions are insufficient to show significant
prejudice); see also Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003)
16
(―[A]ppellant offered no evidence to the trial court that the delay had caused him
any unusual anxiety or concern, i.e., any anxiety or concern beyond the level
normally associated with being charged with [a] crime.‖); Murphy, 280 S.W.3d at
455 (minimizing the impact of generalized expressions of anxiety and concern
that amount to little more than a nominal showing of prejudice). And appellant‘s
claim about oppressive bond conditions for over two years indicates that he was
not confined during that time and shows that one of the three interests served by
speedy trial rights—freedom from oppressive pretrial incarceration—weighs in
favor of the State.15
Of the forms of prejudice, the most serious is impairment to the accused‘s
defense. Dragoo, 96 S.W.3d at 315. Appellant has not alleged that his defense
was prejudiced. It would be difficult for him to do so because he judicially
confessed to committing ―each and every act‖ alleged in the indictment, which
simply stated that he had failed to properly notify the Fort Worth Police
Department before he changed addresses. During the sentencing hearing,
appellant again admitted his guilt; he testified that he knew the rules of reporting
as a sex offender and that he lived part-time with his girlfriend in Mesquite
15
The trial court‘s judgment shows that appellant received credit for being
incarcerated for two days in September 2007 and one day in January 2010.
Because he received credit for three days of confinement after ultimately being
convicted, that confinement was not oppressive. See Starks v. State, 266
S.W.3d 605, 612 (Tex. App.—El Paso 2008, no pet.) (holding that a defendant‘s
twenty-five-month pretrial incarceration was not oppressive when the defendant
received credit on his sentence for time served and ultimately pleaded guilty).
17
without notifying authorities as required. And we cannot find any indication from
the record that the delay between appellant‘s indictment and plea could have
increased his sentence.
Balancing the factors
In weighing all four of the Barker factors, we conclude that appellant‘s
failure to timely assert his speedy trial rights pervades and predominates the
limited prejudice he has alleged. See Santallan v. State, 922 S.W.2d 306, 309
(Tex. App.—Fort Worth 1996, pet. ref‘d); see also Harris, 827 S.W.2d at 957
(holding that, among other facts, a defendant‘s failure to invoke his constitutional
speedy trial right until trial and the lack of evidence of any particularized prejudice
to him showed that the ―balance [was] clearly in favor of the State‖). The delay
between appellant‘s indictment and guilty plea was presumptively prejudicial, and
the lack of a reason for the delay weighs slightly in favor of appellant. But the
other two factors weigh much heavier against him. Appellant never truly
expressed his desire for a speedy trial. Instead, he requested dismissal and
acquittal after he was convicted and was apparently dissatisfied with the
sentence he received. The record seems to preclude the possibility that
appellant‘s defense was prejudiced by the delay. Also, he did not assert
oppressive pretrial confinement and did not provide facts supporting his claim of
anxiety.
18
After balancing the Barker factors, we hold that there is no error in the
deemed denial of appellant‘s motion in arrest of judgment on the basis that he
did not receive a speedy trial. We overrule his sole point.
Conclusion
Having overruled appellant‘s only point, we affirm the trial court‘s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 31, 2011
19