Micky Don Wade v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00125-CR
___________________________
MICKY DON WADE, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 89th District Court
Wichita County, Texas
Trial Court No. 59,642-C
Before Kerr, Birdwell, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant Micky Don Wade1 appeals from his conviction on five counts of
sexual assault of a fourteen-year-old girl, E.B.2 Wade, who had previously been
convicted of indecency with a child, received five life sentences, which the trial court
ordered to run consecutively. Each count was based on Wade’s actions during one
encounter. Wade was represented by appointed counsel at trial, but he filed multiple
pro se motions alleging speedy-trial violations and, in at least one motion, a conflict of
interest with his attorney. On appeal, represented by appointed appellate counsel,3
Wade argues in five issues that he was denied a speedy trial; that counts three and four
were barred by the Double Jeopardy Clause in the United States Constitution; that
count 5 was also barred by double jeopardy; that he was denied the constitutional right
to a judicial determination of his pro se motion alleging a conflict of interest with his
attorney; and that he was constructively denied counsel because his attorney failed to
subject the prosecution’s case at punishment to meaningful adversarial testing. We will
affirm.
Some of the trial court documents, including the indictment, spelled Wade’s
1
name as “Micky Dawn Wade.” However, because the trial court’s judgment spelled his
name as “Micky Don Wade,” we use that spelling.
2
We use an alias to refer to the child. See Tex. R. App. P. 9.8(b)(2).
3
Wade has filed pro se documents with this court.
2
Background
I. The charges against Wade
Wade was charged by indictment with intentionally or knowingly causing
• “the penetration of the mouth of [E.B.], a child who was then and there
younger than 17 years of age, by the defendant’s sexual organ” (count 1);
• “the penetration of the sexual organ of [E.B.] . . . by defendant’s sexual organ”
(count 2);
• “the penetration of the sexual organ of [E.B.] . . . by the defendant’s finger”
(count 3);
• “the penetration of the mouth of [E.B.] . . . by the defendant’s sexual organ”
(count 4); and
• “the sexual organ of [E.B.] . . . to contact the sexual organ of the defendant”
(count 5).
The State also filed a notice of intent to introduce extraneous offenses as well as a
“Notice of Enhancement with Prior Indecency with a Child Conviction” alleging that
Wade had previously been convicted of indecency with a child. In a pre-trial hearing
and at trial, the parties stipulated that Wade was the same person who had been
convicted in the prior indecency-with-a-child case.
II. Wade’s pretrial motions
Wade was arrested on January 8, 2018, and indicted on February 5, 2018. In
March, a different trial court terminated Wade’s parental rights to one of his children.
At the end of June, his first appointed attorney in this case withdrew, and a new attorney
was appointed. Despite the new attorney’s appointment, Wade began filing multiple
3
pro se motions, including a November 30, 2018 habeas petition asserting, among other
matters, his right to a speedy trial. He also complained in the petition that his appointed
attorney was ineffective and had a conflict of interest because the attorney “represents
Marcos M. Rodriguez[,]4 who is mentioned in the Discovery Material as a potential
witness for the State.”
In January 2019, Wade’s parental rights to his other child with his ex-wife were
terminated. Through 2019, he filed several other documents in this case asserting his
speedy trial right, including an August 2019 “Motion to Dismissal [sic] Indictments”
based on the alleged violation of his speedy-trial right. The record does not reflect that
the trial court read or ruled on this motion.
On September 12, 2019, the trial court held a hearing on Wade’s assertion of his
speedy-trial right. At that hearing, the trial court set the case for trial on March 23, 2020,
which was the court’s next available special setting. A few days later, Wade filed a habeas
corpus petition, which he had signed on September 12, after the hearing. In that
petition, he again asked for dismissal. He contended that the case had originally been
set for trial the previous month, on August 19, 2019; that the prosecutor stated at the
September hearing that trial could not go forward on that date because of a CPS case 5;
4
The document did not explain who Rodriguez was, but according to an affidavit
later executed by Wade and read by him to the jury, Rodriguez was his friend and former
roommate.
In the September 12, 2019 hearing, the prosecutor did not say that trial had not
5
gone forward because of a CPS date. Wade asserted that he “was under the assumption
4
and that “[i]f the State wanted to prosecute[,] then it would ha[ve] honored th[at] trial
date.” Nothing in the record indicates that the trial court saw the petition.
On March 11, 2020—about a week and a half before the scheduled trial date—
Wade’s attorney filed a motion for continuance on the ground that the attorney had a
scheduling conflict “due to his chemo treatments being scheduled.” The trial court
granted the motion.
Also in March 2020, Wade filed another pro se motion to dismiss all charges for
speedy trial violations. In that motion, he recognized that because of COVID-
19 precautions, “[o]n March 16, 2020[,] the Wichita County officials [had] canceled all
jury trials, not to resume until at least May 2020.” In June 2020, Wade filed a “Motion
to Set a Hearing,” seeking a hearing on his pro se filings. In that document, he
complained that the continuance had been granted without his presence or knowledge
and was not an agreed continuance under Code of Criminal Procedure Article 29.02.6
by my attorney that trial was to be on August 19th.” The prosecutor then told the court,
“On August 19th—right now, I am not sure why it didn’t go to trial here. I was actually
in trial in the 78th [District Court] on the 19th all week long. I believe [the trial court]
w[as] trying something here as well.” The prosecutor mentioned Wade’s termination
case only after Wade complained that he had already been through two termination
trials. The prosecutor responded that termination cases are expedited and “are always
tried much quicker than criminal cases.”
We assume from this motion that Wade believed that the trial court should have
6
required the attorney to forego his cancer treatment, because the only other two
options—allow Wade to proceed pro se or appoint another attorney—would have
caused a delay so that Wade or the attorney could prepare for trial.
5
See Tex. Code Crim. Proc. Ann. art. 29.02. In July, he filed a similar “Petition for Trial
Court’s Response” asking for the trial court to rule on his motion to set aside the
indictments, again asserting that he had not agreed to a continuance, and seeking a
discharge under Code of Criminal Procedure Article 28.061. See id. art. 28.061 (“If a
motion to set aside an indictment, information, or complaint for failure to provide a
speedy trial is sustained, the court shall discharge the defendant.”). He filed another
habeas petition in August 2020 based on multiple alleged constitutional violations,
including the right to a speedy trial. Throughout this time, he also filed multiple pro se
motions related to discovery and procedural matters.
The State filed a response to Wade’s pro se filings, asserting that the trial court
could disregard the documents because Wade was represented by counsel. The trial
court then signed an order in which it “decline[d] to consider the merits of any of
[Wade]’s pro se filings or to take any action with respect to them.” After that, Wade
continued to submit pro se documents, including an October 2020 habeas petition
seeking dismissal of the indictments for failure to provide a speedy trial and a July
2021 habeas petition asserting, among other grounds, a speedy trial violation.
III. Offense testimony
The case proceeded to trial in August 2021. E.B., who by that time had turned
eighteen years old, testified. She told the jury that through a mutual friend, she and
Wade had become Facebook friends and had exchanged messages and that one day
when she was fourteen and needed a ride home from a friend’s house, she asked Wade
6
for a ride. Despite her asking him to drive her home, he drove her to an alley behind a
house on which he had done construction work. She then testified about multiple acts
of sexual assault against her by Wade that occurred in his truck.7 Afterward, Wade
bought her some food at McDonald’s, gave her $20, and drove her home.
Other witnesses for the State included B.C., who testified that Wade had sexually
assaulted her nearly twenty years before when he was nineteen and she was twelve;
Raymond Perry, a police officer working for the Office of Inspector General, Texas
Health and Human Services, who investigated the case involving E.B after receiving
information about it from a third party; Chase McConnell, the police detective who
arranged for a forensic interview of E.B. and who conducted the photo lineup in which
E.B. identified Wade as the man who had assaulted her; and M.G., a teenage relative of
Wade’s, who testified that Wade had told him about the encounter with E.B.
IV. Wade’s Desire for Self-Representation and Wade’s Testimony
After the State rested, Wade informed his attorney that he wanted to represent
himself, prompting the trial court to hold a Faretta hearing. See Faretta v. California,
422 U.S. 806, 835, 95 S. Ct 2525, 2541 (1975) (requiring a court to ensure that an
accused who wants to manage his or her own defense understands the dangers and
disadvantages of self-representation). Wade stated that he had become concerned that
7
We set out her testimony in greater detail below when addressing Wade’s issues
asserting double jeopardy violations.
7
his attorney “did not want to call the defense that [he] wanted to represent for
[him]self.” His attorney was sworn in and testified that because Wade had filed so many
pro se motions, he had previously asked Wade if Wade wanted to represent himself,
and Wade had “expressed a desire for me to represent him. We had talked about that
on several occasions.” The State objected to Wade’s request for self-representation as
untimely, and the trial court denied the request on that basis.
Wade then testified in his own defense against his attorney’s advice. He
acknowledged that he was a registered sex offender, but he told the jury about his belief
that E.B. had lied about what happened with him and that she did so in an attempt to
help his ex-wife gain custody of her and Wade’s children.
V. Verdict and Sentencing
The jury found Wade guilty on all five counts. The trial court found the
enhancement allegation true and sentenced Wade to life confinement on each count,
with the sentences to run consecutively. 8 Wade’s attorney filed a motion for new trial,
and Wade filed two pro se new-trial motions. The motions were overruled by operation
of law, and Wade now appeals.
8
Wade’s previous conviction for indecency with a child dictated that he receive
confinement for life as punishment for a subsequent sexual assault offense. See Tex.
Pen. Code Ann. § 12.42 (stating that if a defendant is convicted of sexual assault under
Penal Code Section 22.011 after previously having been convicted of indecency with a
child under Penal Code Section 21.11, the defendant must be punished for the sexual
assault offense with life imprisonment). Thus, the only issue at punishment was whether
the trial court should order his sentences to run consecutively or concurrently.
8
Discussion
I. Speedy Trial (Issue One)
In Wade’s first issue, he argues that COVID-19 and its impact do not displace a
defendant’s constitutional right to a speedy trial, that he timely and persistently
requested a speedy trial but was nevertheless continuously imprisoned for over two
years before the pandemic hit and for over three and a half years total before trial finally
began, and that he was therefore denied a speedy trial. The State maintains that the
speedy-trial factors articulated in Barker v. Wingo, 407 U.S. 514, 529 (1972), foreclose
Wade’s request for dismissal of the charges. We agree with the State.
A. Standard of Review and the Barker Factors
Under Barker, courts determining whether a defendant’s Sixth Amendment right
to a speedy trial has been violated must balance four factors: the length of delay, the
reasons for delay, to what extent the defendant asserted his or her right, and any
prejudice suffered by the defendant. Balderas v. State, 517 S.W.3d 756, 767 (Tex. Crim.
App. 2016). In our analysis of these factors, we apply an abuse of discretion standard
for the factual components, giving “almost total deference to historical findings of fact
of the trial court that the record supports and draw[ing] reasonable inferences from
those facts necessary to support the trial court’s findings.” Gonzales v. State, 435 S.W.3d
801, 808–09 (Tex. Crim. App. 2014); see also State v. Lopez, 631 S.W.3d 107, 113–14 (Tex.
Crim. App. 2021) (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)).
We review de novo “whether there was sufficient presumptive prejudice to proceed to
9
a Barker analysis and the weighing of the Barker factors, which are legal questions.”
Gonzales, 435 S.W.3d at 809. However, “while an evaluation of the Barker factors
includes fact determinations and legal conclusions, ‘the balancing test as a whole is a
purely legal question that we review de novo.’” Lopez, 631 S.W.3d at 114 (quoting
Balderas, 517 S.W.3d at 767–68).
B. Analysis
1. Length of Delay
To calculate the delay length, we measure from the time that the accused is
arrested or formally accused. Gonzales, 435 S.W.3d at 809. The length of delay has
relevance to two different parts of a speedy-trial analysis. First, no analysis of the other
Barker factors is required unless the delay is long enough to merit further inquiry: “by
definition, [a defendant] cannot complain that the government has denied him [or her]
a ‘speedy’ trial if it has, in fact, prosecuted his [or her] case with customary promptness.”
Doggett v. United States, 505 U.S. 647, 651–52, 112 S. Ct. 2686, 2690–91 (1992); Hopper v.
State, 520 S.W.3d 915, 924 (Tex. Crim. App. 2017). “[T]he length of delay that will
provoke such an inquiry is necessarily dependent upon the peculiar circumstances of
the case.” Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002) (holding that
two-year-and-ten-month delay was sufficiently lengthy to trigger analysis in ordinary
driving-while-intoxicated case). For example, “the delay that can be tolerated for an
ordinary street crime is considerably less than for a serious, complex conspiracy case.”
Barker, 407 U.S. at 531, 92 S. Ct. at 2192.
10
Second, if a full Barker-factor analysis is required, the length of delay is relevant
in determining the prejudice factor. A delay of sufficient length results in presumed
prejudice, meaning that this factor will weigh heavily in the defendant’s favor unless the
prejudice is negated by the State or mitigated by the defendant’s acquiescence in the
delay. Doggett, 505 U.S. at 655–56, 112 S. Ct. at 2693; Gonzales, 435 S.W.3d at 815; cf.
Barker, 407 U.S. at 535, 92 S. Ct. at 2194 (noting that “the record strongly suggests that
while [the defendant] hoped to take advantage of the delay in which he had acquiesced,
and thereby obtain a dismissal of the charges, he definitely did not want to be tried”).
“[T]he presumption that pretrial delay has prejudiced the accused intensifies over time.”
Doggett, 505 U.S. at 652, 112 S. Ct. at 2691. When a delay long enough to result in
presumed prejudice has been caused by the State’s negligence, and the defendant has
timely asserted the right to a speedy trial, the defendant will generally be entitled to
relief. Gonzales, 435 S.W.3d at 815.
Thus, considering the length of delay is a double inquiry requiring calculation of
the length of delay and determination of whether that delay is long enough to trigger
an examination of the other Barker factors and to presume prejudice. Doggett, 505 U.S.
at 651, 112 S. Ct. at 2690. A delay of one year has generally been held sufficient to
trigger a full Barker-factor analysis, see Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim.
App. 2003), and a delay of five years has been held sufficient to relieve a defendant of
the need to prove the prejudice factor, see Voda v. State, 545 S.W.3d 734, 744 (Tex.
App.—Houston [14th Dist.] 2018, no pet.).
11
The State contends that seventeen months of the delay between Wade’s arrest
and trial was justified—an argument we address in the next section—but it concedes
that the period of unjustified delay was nevertheless long enough to trigger further
analysis. We agree that a full analysis is required. See Cantu v. State, 253 S.W.3d 273,
281 (Tex. Crim. App. 2008) (holding that seventeen-month delay is long enough to
trigger analysis of all Barker factors). This factor therefore weighs against the State. See
Gonzales, 435 S.W.3d at 809; Shaw, 117 S.W.3d at 889.
2. The Reasons for the Delay
The State has the burden of justifying the length of delay. Cantu, 253 S.W.3d at
280. Reasons for delay may weigh against the State, weigh against the defendant, or
justify the delay:
A deliberate attempt to delay the trial in order to hamper the defense
should be weighted heavily against the government. A more neutral reason
such as negligence or overcrowded courts should be weighted less heavily
but nevertheless should be considered since the ultimate responsibility for
such circumstances must rest with the government rather than with the
defendant. Finally, a valid reason, such as a missing witness, should serve
to justify appropriate delay.
Barker, 407 U.S. at 531, 92 S. Ct. at 2192; see Hopper, 520 S.W.3d at 924; Dragoo v. State,
96 S.W.3d 308, 314 (Tex. Crim. App. 2003). “Unjustifiable reasons for delay count
towards the ‘length of delay,’ while justifiable reasons for delay do not,” and, as with
the triggering point for a full-Barker analysis, a justifiable reason for delay in a complex
case may not be a justifiable reason in a simple case. Gonzales, 435 S.W.3d at 810. Here,
12
there were two distinct periods of delay—before and after the initial trial setting—with
different justifications provided.
a. January 8, 2018–March 2020
Wade was arrested in January 2018. We do not hold the first three months after
the arrest against the State because the State is allowed a reasonable period to prepare
its case. See Shaw, 117 S.W.3d at 889–90 (holding that three-month interval between
appellant’s indictment and first trial could not be counted against the State since the
State was entitled to a reasonable period in which to prepare its case); State v. Echols,
No. 11-19-00209-CR, 2021 WL 2174148, at *4 (Tex. App.—Eastland May 28, 2021,
pet. ref’d) (mem. op., not designated for publication) (concluding that approximately
seven months of time attributable to the State’s preparation for trial in aggravated sexual
assault of a child case should not be held against the State); Callender v. State, No. 07-13-
00069-CR, 2013 WL 6908953, at *2 (Tex. App.—Amarillo Dec. 12, 2013, no pet.)
(mem. op., not designated for publication) (“The wheels of justice must be afforded a
reasonable amount of time to turn.”). For the remaining months until the first trial
setting, the State provided some explanation. At a September 2019 hearing on Wade’s
initial pro se speedy-trial motion, 9 the prosecutor explained that Wade had “pro se’ed
Wade’s attorney was present at the hearing and asked Wade to present the
9
motions to the court “since he’s the one [who] filed it.”
13
us to death”10 by filing motions for relief “he’s not entitled to,” such as copies of
discovery. Wade’s first appointed attorney had been allowed to withdraw11 based on a
conflict of interest at the end of June 2018, and, although a new attorney had been
appointed in the withdrawal order, Wade nevertheless began filing his own pro se
motions, including motions seeking discovery, as the State pointed out. However, other
than the speedy trial motion, no hearing was held on the motions, and the State did not
file responses to them. Thus, on this record, we cannot say that Wade’s pro se filings
contributed to the delay.
The prosecutor further stated, however, that the State had done its best to
expedite the trial, but it was facing a crowded docket, and the trial court “ha[d] a bunch
of special settings already,” including a murder trial and an aggravated sexual assault
case in the following month. The trial court agreed to set the case for trial at its next
available special setting on March 23, 2020. An explanation based on heavy caseload or
crowded dockets weighs against the State, but not heavily. See Munoz, 991 S.W.2d at
822; Black v. State, No. 02-21-00057-CR, 2022 WL 3464563, at *7 (Tex. App.—Fort
Wade filed two interlocutory appeals while waiting for trial. If those appeals
10
had delayed trial, the delay attributable to those appeals would not have counted in
support of his speedy-trial claim. See United States v. Loud Hawk, 474 U.S. 302, 316, 106 S.
Ct. 648, 657 (1986). However, the appeals did not cause delay because they were filed
and disposed of during the time that trials were not being held in Wichita County due
to COVID-19.
The first appointed attorney worked for the public defender’s office, and she
11
asserted that the office had a confidential conflict of interest.
14
Worth Aug. 18, 2022, no pet.) (mem. op., not designated for publication). However,
because this excuse does not justify the delay, we include the period from April 2018 to
mid-March 2020 in calculating the length of delay.
b. March 2020–August 2021
The next period of delay had two causes: a continuance and the COVID-
19 pandemic. As noted, approximately two weeks before the March 23, 2020 trial date,
Wade’s attorney moved to continue the trial due to his cancer treatments, and the trial
court granted the request.
Several months later, in a pro se “Motion to Set a Hearing,” Wade objected to
the continuance motion’s granting, which he stated was “done without [his] presence
or knowledge for rebuttal, as it is not agreed upon under Texas Code of Criminal
Procedure Article 29.02 by the Defendant. For there is no continuance under the
Speedy Trial Act.” See Tex. Code Crim Proc. Ann. arts. 29.02 (allowing for agreed
continuances). On appeal, Wade argues that under Orellana v. State, the delay caused by
the granting of the continuance cannot be held against him because he disavowed the
continuance motion filed by his attorney. See 706 S.W.2d 660, 661 (Tex. Crim. App.
1986).
In Orellana, the Court of Criminal Appeals held that for purposes of Texas’s
speedy trial act, the delay caused by an agreed reset should not be counted in calculating
the time period between arrest and trial because nothing in the record indicated that the
defendant’s attorney lacked authority to sign the reset forms. Id. Wade relies on this
15
case to argue that because he made an after-the-fact objection to the continuance, the
continuance should not be held against him.
Wade’s motion did not, however, provide evidence that at the time that his
attorney requested and obtained the continuance, the attorney was acting without
authority. Wade’s motion states that he was not informed or consulted about the
motion ahead of time, but it is not evidence the attorney was not authorized to request
it or agree to its granting at the time that the attorney did so. See Vermont v. Brillon,
556 U.S. 81, 90–91, 129 S. Ct. 1283, 1290–91 (2009); cf. United States v. Clark, 577 F.3d
273, 283 (5th Cir. 2009) (reviewing dismissal of indictment without prejudice under
federal Speedy Trial Act and concluding that continuances requested by defendant’s
attorneys were attributable to defendant despite his post hoc denial that he had agreed
to them).
However, even if in ordinary circumstances we would weigh the continuance
against Wade, we do not need to do that here because the COVID-19 pandemic’s onset
made the continuance moot. Wade acknowledged in his pro se filings in the trial court
that shortly before his scheduled trial date, all trials were halted in Wichita County due
to the pandemic. 12 The record reflects that jury trials did not begin again until August
12
Wade points out that the prosecutor stated in voir dire that he had tried a capital
murder case on March 16, 2020. The prosecutor further stated, however, that the
county shut down trials right after that and that the murder case “was the last felony
case tried in Wichita County until [one was tried] about two weeks ago,” i.e., in August
2021. Wade directs us to no evidence that trials were allowed to begin after March 16 or
16
2021, when Wade’s trial was held. Thus, a delay in setting a new trial date after the
continuance’s granting could not have been due to any action or inaction taken by Wade
or his attorney.13
On the other hand, we agree with the State that the delay caused by the
pandemic’s onset cannot be attributed to the State. State v. Conatser, 645 S.W.3d 925,
930 (Tex. App.—Dallas 2022, no pet.). The Texas Supreme Court’s emergency orders
restricted in-person jury trials in April and May 2020. See Seventeenth Emergency Order
Regarding COVID-19 State of Disaster, 609 S.W.3d 119, 120 (Tex. 2020); Twelfth Emergency
Order Regarding COVID-19 State of Disaster, 629 S.W.3d 144, 145 (Tex. 2020). The
pandemic’s onset was a valid reason to justify a delay.
In-person proceedings were authorized beginning in June 2020, following a
court’s submission of an operating plan to the Office of Court Administration (OCA)
that complied with OCA’s guidance. Seventeenth Emergency Order, 609 S.W.3d at 120.
Wichita County’s operating plan, adopted in May 2020, stated that “[j]ury trials will not
that his trial would have been permitted to go forward on its original trial date if his
attorney had not been granted a continuance.
13
During this time, Wade continued to file pro se motions. If the case’s
progression had been delayed because Wade had “filled the [court’s] docket with
repetitive and unsuccessful motions,” that time delay would not have weighed in
support of Wade’s speedy-trial claim. See Loud Hawk, 474 U.S. at 315, 106 S. Ct. at 656.
The State apparently did review the motions, but its only written response was a request
that the trial court not consider them, which was granted. Wade filed these motions
during the time when trials were not being held, so they could not have caused a trial
delay.
17
commence until at least August 3, 2020, conditioned upon the ability of the courts to
summon individuals to serve on venire panels in a safe manner.” 14 “Thus, while the
State’s stated reason for the delay is a neutral reason, there existed an option that might
have allowed the trial to have been held even during a pandemic.” Lovelace v. State,
654 S.W.3d 42, 49 (Tex. App.—Amarillo 2022, no pet.).
The record here does not show that trials could not have resumed after August
2020 and before August 2021. We do not know from the record if the trial court had
not been able to comply with the emergency orders’ jury-trial requirements before
August 2021 for reasons outside of its control. We do not know if Wichita County
could have allowed jury trials before then but, out of an abundance of caution, chose
not to. Not having that information matters because “even in a pandemic, the
Constitution cannot be put away and forgotten.” See Huynh v. State, No. 05-21-00991-
CR, 2022 WL 17261155, at *5 (Tex. App.—Dallas Nov. 29, 2022, no pet. h.) (mem.
op., not designated for publication); cf. Black, 2022 WL 3464563, at *7 (noting that State
had offered no evidence to support its COVID-19-based excuse). For that reason, we
do not include in our calculation the period from mid-March 2020 to the beginning of
14
Neither party provided the trial court with a copy of the operating plan, but the
plan is publicly available on the Texas Judicial Branch’s website. See
https://www.txcourts.gov/court-coronavirus-information/operating-plans; Flores-
Garnica v. State, 625 S.W.3d 651, 657 (Tex. App.—Fort Worth 2021, no pet.) (noting
that appellate courts may take judicial notice of legislative facts and of adjudicative facts
that are not subject to reasonable dispute).
18
August 2020, but we do include the time from August 2020 to trial, and we weigh that
delay period against the State—but only slightly. Lovelace, 654 S.W.3d at 49; but see Parmer
v. State, No. 12-21-00159-CR, 2022 WL 3452120, at *3 (Tex. App.—Tyler Aug. 17,
2022, no pet.) (mem. op., not designated for publication) (holding that delay from
March 2020 to August 2021 due to COVID-19 did not weigh against either party).
In summary, most of the delay weighs lightly against the State, but approximately
seven-and-a-half months (three at the beginning of the case and four-and-a-half at the
pandemic’s start) weigh against neither party and are not included in our calculation of
the length of delay.
3. Wade’s Assertion of the Right
The defendant has the burden to assert the right to a speedy trial. Hopper,
520 S.W.3d at 924. “Although a defendant’s failure to assert his [or her] right is not
automatically fatal to a speedy-trial claim, a failure to assert the right will make it difficult
for a defendant to prove that he [or she] was denied a speedy trial.” Id. Wade filed
multiple pro se speedy-trial motions. His first motion unequivocally requested a speedy
trial and was considered by the trial court, and in response, the court set a trial date.
Thus, we conclude that Wade asserted his right.
However, there is no indication in the record that the trial court was aware of
Wade’s pro se motion before it was set for a hearing in September 2019, much less that
the trial court considered it before that time. A trial court generally does not need to
consider a motion that is not brought to the court’s attention. See Guevara v. State,
19
985 S.W.2d 590, 592 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Further, as we
note in discussing Wade’s fourth issue, a trial court generally does not have any
obligation to consider pro se filings by a defendant who is represented by counsel. See
Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). That general rule has
been applied to pro se speedy-trial motions. See Floyd v. State, 959 S.W.2d 706, 710 (Tex.
App.—Fort Worth 1998, no pet.); cf. Jones v. State, No. 2-08-258-CR, 2010 WL 323577,
at *5 & n.3 (Tex. App.—Fort Worth Jan. 28, 2010, no pet.) (mem. op., not designated
for publication) (reviewing trial court’s ruling on speedy-trial claim and declining to
consider defendant’s pro se document because it was filed while he was represented by
counsel). 15 Because Wade’s speedy-trial assertion was not brought to the trial court’s
15
Other courts have done the same. See Valles v. State, No. 08-18-00061-CR,
2020 WL 255746, at *3 (Tex. App.—El Paso Jan. 17, 2020, no pet.) (not designated for
publication) (declining to consider appellant’s pro se submissions asserting speedy trial
right, which were filed while he was represented by counsel); Ussery v. State, 596 S.W.3d
277, 288 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (stating that defendant’s pro
se motions were not an unambiguous invocation of his speedy trial right because they
were not required to be considered by the trial court and it was unclear if the trial court
ever considered them); Torres v. State, No. 04-16-00622-CR, 2017 WL 5759380, at
*5 (Tex. App.—San Antonio Nov. 29, 2017, no pet.) (mem. op., not designated for
publication) (holding that appellant’s pro se speedy trial request, which was never ruled
on by the trial court, could not be considered as an assertion of the appellant’s speedy
trial right); see also United States v. Alvarado, 321 Fed. Appx. 399, 400 (5th Cir. 2009)
(unpublished) (holding trial court did not abuse its discretion by striking defendant’s
pro se speedy trial motion because defendant was not entitled to hybrid representation);
McGregor v. State, No. 05-02-00992-CR, 2003 WL 22511149, at *1 (Tex. App.—Dallas
Nov. 6, 2003, pet. ref’d) (not designated for publication) (holding court of appeals did
not have jurisdiction to consider speedy trial complaint because his attorney had not
raised speedy trial complaint in the trial court and trial court was not required to
consider his pro se motion). Cf. Echols, 2021 WL 2174148, at *8 (noting that trial courts
are “often hesitant” to consider pro se motions filed by a represented defendant as
20
attention before September 2019, he essentially did not assert his right until
approximately twenty months after his arrest. See Russell v. State, 90 S.W.3d 865,
873 (Tex. App.—San Antonio 2002, pet. ref’d) (noting that a lengthy delay in asserting
the speedy-trial right attenuates a claim for violation of the right).
After trial was continued at his attorney’s request, Wade filed other pro se
motions that included a speedy-trial demand. Because the trial court did not consider
Wade’s post-continuance pro se filings and was not required to do so, we may conclude
that Wade did not assert his speedy-trial right at any point after the September
2019 speedy-trial hearing. A failure to pursue the right weakens a speedy-trial claim. See
Ingram v. State, No. 04-09-00249-CR, 2010 WL 1609696, at *3 (Tex. App.—San Antonio
Apr. 21, 2010, no pet.) (mem. op., not designated for publication); see also Haney v. State,
977 S.W.2d 638, 642 (Tex. App.—Fort Worth 1998, pet. ref’d) (en banc) (holding that
because appellant did not pursue his speedy-trial right soon enough and with “sufficient
persistence and aggressiveness,” that factor weighed against him), abrogated on other
grounds by Howland v. State, 990 S.W.2d 274 (Tex. Crim. App. 1999).
However, even if we considered the pro se documents filed by Wade after the
continuance and the onset of COVID-19, they would weaken rather than strengthen
his claim because beginning in August 2019, what Wade asked for was dismissal of the
strong evidence of an assertion of the speedy trial right); Harden v. State, 152 So. 3d 626,
627 (Fla. Dist. Ct. App. 2014) (“[A] pro se demand for speedy trial that has not been
adopted by the defendant’s counsel cannot be entertained on the merits.”).
21
charges. Even on the very day that the trial court gave him what he ostensibly wanted—
a trial setting—he wrote a pro se document requesting dismissal because the trial date
was set six months away. See Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983)
(stating that a request for dismissal rather than speedy trial may attenuate the strength
of defendant’s speedy-trial claim); McCarty v. State, 498 S.W.2d 212, 215–16 (Tex. Crim.
App. 1973) (same); Black, 2022 WL 3464563, at *9 (same). In other words, Wade did
not assert his right for twenty months after his arrest, and either he did not re-assert his
speedy-trial right after the initial trial setting was continued (if we do not consider his
post-continuance pro se filings), or (if we consider the pro se filings) he weakened his
claim by seeking dismissal. This factor weighs against Wade, but only slightly.
4. Prejudice
Unless the delay before trial is presumptively prejudicial, a defendant has the
burden to show that the final Barker factor weighs in his or her favor, and to do so, the
defendant has to show that the delay actually caused prejudice. See Cantu, 253 S.W.3d at280–81. Because the delay in this case was not long enough to shift the burden to the
State, Wade had that burden. See Voda, 545 S.W.3d at 744; Washington v. State, No. 02-
14-00454-CR, 2016 WL 4538566, at *10 (Tex. App.—Fort Worth Aug. 31, 2016, pet.
ref’d) (per curiam) (mem. op., not designated for publication).16
In Washington, this court held that even when the delay is presumptively
16
prejudicial, the defendant must nonetheless make a prima facie showing of prejudice
before the State has any burden to negate it. Washington, 2016 WL 4538566, at *10. The
Court of Criminal Appeals had already rejected that reasoning, but in an unpublished
22
In determining prejudice, we consider the delay’s effect on three categories of
interests: “(1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and
concern of the accused, and (3) limiting the possibility that the defense will be
impaired.” Hopper, 520 S.W.3d at 924. The most serious interest is the harm to the
defendant “because the inability of a defendant adequately to prepare his case skews
the fairness of the entire system.” Barker, 407 U.S. at 532, 92 S. Ct. at 2193. For example,
a defendant may be prejudiced by a witness’s death or disappearance or if defense
witnesses are “unable to recall accurately events of the distant past.” Id.Wade suffered at least some prejudice from pretrial incarceration.17 See Lovelace,
654 S.W.3d at 50; Washington, 2016 WL 4538566, at *11. This prejudice, however, is not
opinion. Gonzales v. State, No. PD-0724-12, 2013 WL 765575, at *1 (Tex. Crim. App.
Feb. 27, 2013) (not designated for publication); see Tex. R. App. P. 77.3. Then in 2014,
the Court of Criminal Appeals again put the burden on the State to negate prejudice
when the delay is “so excessive that it ‘presumptively compromises the reliability of a
trial in ways that neither party can prove or identify.’” Gonzales, 435 S.W.3d at
812 (quoting Shaw, 117 S.W.3d at 890, and holding that “[i]n such instances, the
defendant is absolved from the requirement to demonstrate prejudice”).
17
The record reflects that Wade was also charged in cause number 59641-C for
failing to update his address with his primary sex-offender registration authority.
Further, his pro se filings and trial testimony indicate that he also had another criminal
case pending against him in county court for continuous family violence. The record
does not show the disposition of the charges in the other cases, whether he was detained
on those charges while this case was pending, and, if so, for how long. Accordingly, we
cannot conclude that his incarceration on those charges negated any prejudice from his
pretrial incarceration in this case. See Webb v. State, 36 S.W.3d 164, 174 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d) (holding that appellant could not show prejudice
from pretrial incarceration when he was already incarcerated for another offense); see
also Thames v. State, No. 02-17-00295-CR, 2019 WL 237556, at *9 (Tex. App.—Fort
Worth Jan. 17, 2019, no pet.) (mem. op., not designated for publication) (holding that
23
sufficient alone to establish the right to dismissal. See Jones, 2010 WL 323577, at *7;
Meyer v. State, 27 S.W.3d 644, 651 (Tex. App.—Waco 2000, pet. ref’d), abrogated on other
grounds by Robinson, 240 S.W.3d at 922.
Wade asserts in his brief that his pretrial incarceration caused him to lose work
experience and wages that “he might have . . . earned.” However, Wade offered no
evidence of any lost wages or work experience. Wade refers only to a statement that he
had included in a pro se motion in which he stated, with no elaboration, that he had
“lost work experience.” See Newman v. State, 331 S.W.3d 447, 449 (Tex. Crim. App. 2011)
(noting general rule that an unsworn motion does not, by itself, present evidence upon
which relief can be granted for a speedy-trial violation); Nelson v. State, 629 S.W.2d 888,
890 (Tex. App.—Fort Worth 1982, no pet.) (stating a motion is not evidence); cf.
Zamorano, 84 S.W.3d at 654 (noting that the appellant had testified to at least $1,320 in
lost wages due to court appearances); State v. Burckhardt, 952 S.W.2d 100, 104 (Tex.
App.—San Antonio 1997, no pet.) (holding that the defendant had shown prejudice
from loss of jobs due to trial re-settings, at least one of which lost him a
$125,000 payment).
Wade also asserts that he specifically documented the negative effect that
incarceration was having on his health. This argument is based on the same pro se
appellant could not show prejudice from pretrial incarceration when he was
incarcerated for the entire period between his arrest and his demand for a speedy trial
on an unrelated charge in another county).
24
motion in which he claimed to have lost wages. In that motion, he stated that he had
“lost weight and [his] appearance is changed due to lack of sunlight as his countenance
is result[ant]ly altered[,] which may be prejudicial to the jury.” Again, we do not consider
the motion as evidence, but even if we did, it does not show that Wade felt anxiety
beyond the anxiety that would normally arise from criminal charges or pretrial
incarceration, and nothing supports his claim that his alleged weight loss or more pale
appearance would affect the jury’s view of him. See Shaw, 117 S.W.3d at 890 (stating that
appellant had not demonstrated any anxiety beyond the level normally associated with
being charged with a felony sexual crime); Jones, 2010 WL 323577, at *7 (holding that
defendant did not establish that his anxiety from pretrial incarceration was either
abnormal or caused his case prejudice). Contra Bosworth v. State, 422 S.W.3d 759, 771–
72 (Tex. App.—Texarkana 2013, pet. ref’d) (stating that the appellant showed prejudice
from pretrial incarceration because evidence indicated that he needed but did not
receive medication to help him moderate his behavior or treat a mental disorder).
Wade further argues that “given the number and intensity of his motions and
appeals, it is inconceivable that he did not suffer ‘prolonged anxiety.’” However, the
existence of the filings alone does not show whether it was anxiety, a need for control,
or some other motive that prompted him to file so many pro se motions while
represented by counsel.
Regarding the last, most important interest, Wade argues that his pretrial
incarceration “prevented him from looking for evidence that might have exonerated
25
him, such as finding the white pickup [that E.B.] claimed to have been the scene of the
crime when his [truck] was silver and finding whether the owner or driver was a viable
alternate suspect.” 18 However, as the State points out, Wade’s trial theory was that the
incident never happened at all and that the complainant made it up in conspiracy with
his ex-wife to help her gain custody of the couple’s children.19 Wade testified to that
effect at trial and made similar statements in one of his pro se filings. There is nothing
in the record indicating that Wade believed that the offenses were actually committed
but by someone else or that he wanted to find the true culprit but was unable to do so
because of his incarceration. Further, although Wade argues that he “had no means to
make up for his attorney’s neglect of his case by investigating it himself,” from the
record, we cannot determine what his attorney did or did not do to investigate the case,
18
In the fact section of his brief, Wade states that in his testimony, he pointed to
another man, Russell Klimic, as being the likely culprit in this case. Wade was apparently
incarcerated with Klimic at some point. Wade argues that Klimic had a white pickup
truck like the one described by E.B. and that in a CPS case, Klimic was said “to have
given Ms. B_______ [that is, E.B.] a ride to McDonald’s and to have had sex with her
before taking her home.” We disagree that Wade testified that Klimic was alleged to
have sexually assaulted E.B. Wade said that allegations involving a girl were made in a
CPS case involving Klimic, but he did not name the girl. Further, his testimony at trial
does not comport with his argument on appeal. His testimony was not that the alleged
acts in his case actually occurred but were committed by Klimic. Instead, at trial, he
seemed to be using the supposed allegations against Klimic to suggest that CPS had
made false allegations of child sexual assault against both men. He told the jury, “You
would think CPS would at least change up on their lies.” Wade does not include any
assertions about Klimic in his arguments under this issue.
19
His ex-wife’s parental rights to the two children were terminated before Wade’s
trial in this case.
26
and Wade does not explain what, other than his new defensive theory, needed
investigating.20
In summary, Wade failed to show any prejudice beyond that which usually arises
from pretrial incarceration or from being accused of a crime, and we therefore conclude
that any prejudice that he suffered was real but minimal.21 See Jones, 2010 WL 323577,
at *7.
5. Balancing and Conclusion
Finally, we balance the above factors. The Court of Criminal Appeals has
explained the approach that courts must take in the balancing:
Because dismissal of the charges is a radical remedy, a wooden application
of the Barker factors would infringe upon “the societal interest in trying
people accused of crime, rather than granting them immunization because
of legal error.” Thus, courts must apply the Barker balancing test with
The record does show, however, that Wade and his attorney had some
20
disagreement about how to conduct Wade’s defense. Information on that point was
elicited when Wade’s attorney questioned him outside the jury’s presence regarding his
desire to testify and his desire for his attorney to call certain witnesses against the
attorney’s advice, as well as when the State took Wade on voir dire about a defense
exhibit. Wade’s attorney questioned Wade about those matters and explained why he
had not done as Wade asked. For example, regarding specific witnesses Wade wanted
his attorney to call to testify, the attorney explained that each person had information
detrimental to Wade that had not been brought out in the State’s case.
As the State mentions, at the hearing on the speedy trial motion, Wade
21
mentioned “witnesses on [his] behalf that ha[d] a tendency to be like a gypsy and move
away” and that he did not “want the State or the county to procure the unavailability of
any witnesses that [he] believe[d] [wa]s pertinent to [his] case.” He did not name those
witnesses at the hearing. There is no evidence in the record about whether there were
any witnesses whom Wade wanted to call but could not because they had become
unavailable. Perhaps for that reason, Wade did not mention this assertion in his brief
as a ground for a prejudice finding.
27
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. The constitutional right is that of a
speedy trial, not dismissal of the charges.
Cantu, 253 S.W.3d at 281 (quoting United States v. Ewell, 383 U.S. 116, 121, 86 S. Ct. 773,
(1966)).
On balance, the factors do not support dismissal. Seven-and-half months of the
delay were justified. Much of the remaining delay weighs only slightly against the State.
There was no evidence of bad faith on the part of the State or that the State engaged in
purposeful dilatory tactics. See Ussery, 596 S.W.3d at 291 (stating that “although the delay
of three and a half years was excessive, the State bore a low degree of culpability for the
delay”). Wade asserted his speedy-trial right, and the trial court was made aware of that
assertion, but not until approximately twenty months after Wade’s arrest, and Wade
further weakened his claim by not re-asserting his right after the continuance (if we do
not consider his pro se filings) or by seeking dismissal (if we do consider the filings).
Wade did suffer some prejudice from pretrial incarceration, and that prejudice
presumably increased over time due to the length of his incarceration, but the prejudice
was nevertheless minimal. There was no evidence of any specific prejudice other than
that which he ordinarily would have suffered from pretrial incarceration and a charge
of sexually assaulting a minor.
Weighing all of the factors together and bearing in mind that dismissal is a radical
remedy, we hold that Wade failed to establish a violation of the right to a speedy trial
28
that was serious enough to warrant a dismissal of his case. See id.; see also Black, 2022 WL
3464563, at *12; State v. Harbor, 425 S.W.3d 508, 515 (Tex. App.—Houston [1st Dist.]
2012, no pet.). We overrule Wade’s first issue.
II. Double Jeopardy (Issues Two and Three)
In Wade’s second issue, he asserts that in sexual assault cases, a defendant may
be prosecuted for only as many statutorily specified body parts he penetrates in the
same encounter, that in this case the State alleged only one encounter in which the
complainant’s mouth and sexual organ were penetrated but obtained four penetrative
convictions, and that counts 3 and 4 are therefore barred by the Double Jeopardy
Clause. In Wade’s third issue, he argues that count 5 is also barred by double jeopardy
because of his conviction on count 2. Count 2 alleged penetration of the complainant’s
sexual organ by Wade’s sexual organ, and count 5 alleged contact between the same
two organs. Wade argues that double jeopardy bars conviction of both a penetrative
conviction and a contact conviction for one criminal impulse in which penetration
occurs, and no evidence existed in this case of contact without penetration.
A. Double Jeopardy and Preservation
Wade did not raise a double jeopardy objection in the trial court, but a party may
raise the issue for the first time on appeal “when the undisputed facts show the double
jeopardy violation is clearly apparent on the face of the record and when enforcement
of usual rules of procedural default serves no legitimate state interests.” Gonzalez v. State,
29
8 S.W.3d 640, 643 (Tex. Crim. App. 2000). We thus look to the face of the record to
see if the undisputed facts reveal a double jeopardy violation.
Wade relies on two Court of Criminal Appeals cases: Hernandez v. State,
631 S.W.3d 120, 124 (Tex. Crim. App. 2021), and Aekins v. State, 447 S.W.3d 270, 282–
83 (Tex. Crim. App. 2014). Citing Hernandez, he argues under his second issue that he
could not be prosecuted on both count 2 and count 3 because both counts alleged
penetration of E.B.’s sexual organ (once with his sexual organ as alleged in count 2, and
once with his finger as alleged in count 3). He further argues that he could not be
prosecuted on both counts 1 and 4 because both counts alleged penetration of E.B.’s
mouth with his sexual organ. See 631 S.W.3d at 124. Citing Aekins, Wade argues under
his third issue that a defendant “may not be convicted for a completed sexual assault
by penetration and also for conduct (such as exposure or contact) that is demonstrably
and inextricably part of that single sexual assault,” and thus he cannot be convicted of
both the contact alleged in count 5 and of the penetration alleged in count 2. See Aekins,
447 S.W.3d at 281.
Hernandez addressed when conduct may be considered a lesser-included offense
of a charged offense, but its analysis is also useful in the double jeopardy context
because a defendant cannot be convicted of both an act and its lesser-included conduct.
631 S.W.3d at 124. As Wade points out, Hernandez stated that “[a]n offender may be
30
prosecuted for as many statutorily specified body parts as he penetrates.”22 Id. However,
Hernandez did not address a situation like the one in this case, and it did not hold that,
no matter how many times a complainant’s mouth or sexual organ is penetrated during
a single encounter, the defendant cannot be charged more than once for each body part.
See id. at 122 (holding that touching one body part is a separate offense than penetrating
a different body part, and thus the defendant’s touching of the complainant’s vagina
with his hand and his rubbing his penis on her torso were separate indecency offenses
and not lesser-included offenses of the offense of penetrating her mouth with his penis).
As explained in Aekins,
[i]f the victim says Dangerous Dan raped her, then forced oral sex, then
raped her again, then forced oral sex again—there are four criminal convictions
possible. . . . [S]eparate acts of penetration with different instruments (say,
with a sex toy and with a penis) constitute two distinct ultimate acts. This
is why appellant may be punished for the two penetration counts in this
case (penetration by finger and penetration by mouth), even though they
are proscribed by the same subsection of sexual assault—Texas Penal
Code § 22.011(a)(1)(A)—without offending the Double Jeopardy Clause.
447 S.W.3d at 282–83 (footnotes omitted and emphasis added).
22
Wade also cites Jourdan v. State for the same proposition. 428 S.W.3d 86,
96 (Tex. Crim. App. 2014). However, Jourdan does not hold that a defendant may be
charged with only one offense no matter how many times a particular body part is
penetrated in one encounter. In Jourdan, the defendant had been charged in two
paragraphs with one count of sexual assault. Id. at 88 n.2. The trial evidence could
support a finding that the defendant penetrated the complainant’s vagina with his penis
or with his finger, and one question before the court was whether the jury had to be
unanimous about how the one alleged penetration occurred. Id. at 91–92, 94. Jourdan
did not address a situation in which a defendant engages in multiple separate and
completed acts of penetration in one encounter.
31
In proving a sexual assault case, penetration necessarily requires contact, Patterson
v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004), but contact does not require
penetration. Thus, if an indecent contact “is not simply preparatory to an act of
penetration,” the contact “is itself a complete, ultimate act.” Aekins, 447 S.W.3d at 282.
In a footnote to Aekins’s discussion of the United States Supreme Court’s opinion in
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932), the court explained how a
defendant may be convicted of multiple offenses for multiple violations of the same
statute over a short period of time—for example, penetration of a complainant’s mouth
and sexual organ, see Tex. Penal Code Ann. § 22.011(a)—but may not be convicted for
acts that are necessarily part of a single violation:
For example, one rape will frequently involve the defendant’s acts of
exposing his genitals, then contacting the victim’s genitals with his own,
then penetrating the victim’s genitals with his. It is a “continuing” crime
in the sense that the defendant commits several criminal acts on the way
to completing the rape, but the lesser acts of exposure and contact merge
into the ultimate act of penetration. Patterson, 152 S.W.3d at 92. If, on the
other hand, the actor rapes the same woman five times during the course
of an evening, he, like the defendant in Ebeling, may be prosecuted for five
different aggravated sexual assaults; it is the same crime committed five
separate times.
Id. at 277 n.28. In other words, a defendant may be charged for each distinct ultimate
act.
B. Analysis of Issues Two and Three
Resolution of these issues turns on the conduct to which E.B. testified. E.B.
testified to the following acts during the encounter. First, she stated,
32
He just moved closer to me[,] and he was rubbing my thighs and touching
my shoulder and trying to kiss me. And I asked him again if I can—if he
could just take me home. He still said no. And then he pulled his penis
out and told me to suck it. And I did because I felt if I didn’t, then he
would have made me walk home or wouldn’t have taken me home.
This testimony described the conduct charged in count 1, “the penetration of the mouth
of [E.B.], a child who was then and there younger than 17 years of age, by the
defendant’s sexual organ.”
E.B.’s testimony then continued,
A. After that, he told me that we could have sex now, so I laid down
and I took my pants off and he took his off and he got to on top of me.
Q. Did you want to have sex with him?
A. No.
Q. Did he offer you anything to have sex?
A. He offered me money.
....
A. He puts his penis inside of me and we have sex.
This testimony described conduct charged in count 2, the penetration of E.B.’s sexual
organ by Wade’s sexual organ.
E.B. further testified,
And I asked him again if he could take me home. He said no. And
he offered me more money—well, I asked him if I did it again if he could
give me more money because I needed money really bad. And he said yes.
So he told me to suck his penis to try to get it hard[,] and it didn’t[,] and
he said it might get hard if he puts it in me, but it didn’t.
33
Q. Okay. I—I hate to ask you these questions, but some of these
things I have to ask so that we can clarify. You said he put it in you, like
where did he put his penis?
A. In my vagina.
This testimony described the conduct charged in count 4, the penetration of E.B.’s
mouth by Wade’s sexual organ, and count 5, contact of E.B.’s sexual organ by Wade’s
sexual organ.
Finally, E.B. described one other act:
Q. Did he ever put anything else besides his penis inside your
vagina?
A. His fingers.
Q. Okay. And when was that?
A. After the first time we did it.
This testimony describes the conduct charged in count 3, the penetration of E.B’s
sexual organ by Wade’s finger. In summary, E.B.’s testimony was that Wade penetrated
her mouth with his sexual organ (count 1), then penetrated her sexual organ with his
sexual organ (count 2), then penetrated her sexual organ with his finger (count 3), then
penetrated her mouth with his sexual organ (count 4), and finally contacted her sexual
organ with his sexual organ (count 5).
Based on this testimony, we disagree that the contact alleged in count 5 was part
of the penetration alleged in count 2 because the contact alleged in count 5 was not part
of a single continuous act that ended with the penetration alleged in count 2. See id. at
283. It was not “simply preparatory to an act of penetration,” see id. at 282, but was a
34
separate act of contact that came after the penetration alleged in count 2 and after two
other charged acts—penetration of E.B.’s sexual organ with his finger and penetration
of her mouth. Thus, conviction on both counts is not a double-jeopardy violation.
We also reject Wade’s argument that double jeopardy prevents his conviction on
both two and three and on both counts one and four. Counts two and three alleged two
separate ultimate acts: Wade penetrated E.B.’s sexual organ with his sexual organ as
alleged in count 2 and then, after that act, penetrated her sexual organ with his finger as
alleged in count 3. Likewise, he penetrated her mouth with his sexual organ as alleged
in count 1, and then, after a series of other acts, did so again as alleged in count 4.
In his reply brief, Wade relies on Jackson v. State, 567 S.W.3d 405, 407–08 (Tex.
App.—Texarkana 2018, no pet.). That case is easily distinguishable. In that case, the
defendant was charged with and convicted of continuous sexual abuse and of
aggravated sexual assault of the same child, even though the specific aggravated sexual
assault and the continuous sexual assault both occurred within the same time frame. Id.A charge of continuous sexual assault for a certain time period includes acts of sexual
abuse occurring within that same time period and prohibits convictions for both. See id.at 407 (citing Price v. State, 434 S.W.3d 601, 606 (Tex. Crim. App. 2014)); see also Tex.
Penal Code Ann. § 21.02(e)(2). In Jackson, the defendant was improperly convicted of
both. Jackson, 567 S.W.3d at 407–09. Here, the State did not charge Wade with
continuous sexual assault, so that analysis does not apply.
35
Wade further relies on Gonzalez v. State, 516 S.W.3d 18, 21 (Tex. App.—Corpus
Christi–Edinburg 2016, pet. ref’d). That case involved a defendant convicted of three
counts of driving while intoxicated with a child passenger—one conviction for each
child who was in the vehicle that the defendant was driving when she was involved in
a traffic accident. Id. Under the applicable statute, the allowable unit of prosecution was
one offense for each incident of driving or operating a vehicle; thus, although there
were three children in the car, the defendant committed only one offense. Id. at 22, 24.
The Gonzalez case did not involve the sexual-assault statute as issue here.
C. Issues Two and Three Conclusion
Because counts 1, 2, 3, and 4 alleged separate ultimate acts, we overrule Wade’s
second issue. Additionally, because the conduct charged in count 5 was a complete,
ultimate act separate from—and was not conduct that was “simply preparatory to”—
the penetration charged in count 2, we overrule Wade’s third issue. See Aekins,
447 S.W.3d at 282.
III. Conflict of Interest (Issue Four)
Wade asserts in his fourth issue that he was denied the constitutional right to a
judicial determination of his pro se motion raising a conflict of interest with his second
appointed attorney. Wade asserted a potential conflict in a five-page, handwritten
habeas petition raising multiple categories of complaints. He stated in one sentence that
his attorney had a conflict of interest because the attorney represented “Marcos M.
Rodriguez[,] who is mentioned in the Discovery Material as a potential witness for the
36
State.” Nothing in the record confirms if Rodriguez was in fact represented by Wade’s
attorney, and nothing indicates whether any such representation was related to this case
in some way. Wade also filed a “Withdraw of Counsel Inquiry” stating that he wanted
his attorney to withdraw because “[d]efense counsel has an ethical obligation to advise
the court promptly when a conflict of interest arises and the conflict of interest negates
the unimpaired loyalty a defendant is constitutionally entitled to expect and receive from
his attorney.” However, it did not elaborate on what conflict, if any, existed.
As noted, the trial court declined to consider his pro se motions and thus did not
rule on any motion asserting a conflict of interest. The State asserts that Wade never
brought his claim of his counsel’s conflict to the trial court’s attention and that the
record does not establish any conflict. Wade replies that his pro se motions for writ of
habeas corpus were sufficient to make the trial court aware of his complaints.
A. Trial Court’s Duty to Investigate Conflicts of Interest
When a defendant or the defendant’s attorney brings a potential conflict of
interest to the trial court’s attention through a pretrial motion or trial objection, the trial
court has an obligation to investigate. Routier v. State, 112 S.W.3d 554, 581 (Tex. Crim.
App. 2003) (citing Holloway v. Arkansas, 435 U.S. 475, 484, 98 S. Ct. 1173, 1178 (1978)).
If the defendant does not bring the potential conflict to the trial court’s attention but
argues on appeal that the trial court nevertheless should have been aware of the conflict,
the defendant is not entitled to reversal “unless he [or she] shows that [the] attorney
was operating under an actual conflict of interest that adversely affected counsel’s
37
performance.” Id. at 581–82. “[A]n actual conflict of interest exists when ‘counsel is
required to make a choice between advancing his [or her] client’s interest in a fair trial
or advancing other interests (perhaps his [or her] own) to the detriment of [the] client’s
interest.’” Id. at 582 (quoting James v. State, 763 S.W.2d 776, 779 (Tex. Crim. App. 1989)).
B. Analysis
There is no dispute that Wade made a pro se assertion that his trial counsel had
a conflict of interest. There is likewise no dispute that the trial court did not investigate
any potential conflict of interest. The question here is whether Wade’s pro se filings
were sufficient to bring the issue to the trial court’s attention and to obligate the trial
court to investigate.
In resolving this question, the key phrase is “brought to the trial court’s
attention.” See Dunn v. State, 819 S.W.2d 510, 519 (Tex. Crim. App. 1991) (noting trial
court has obligation to inquire into a conflict problem “once [the problem] is brought
to [the court’s] attention”). Wade asserts that his mere filing of his pro se motion was
sufficient and that he did not need to set the motion for a hearing or to raise the matter
in open court. This argument suggests that either the State had a duty to raise the issue
with the trial court or that the trial court had an independent duty to read all of Wade’s
pro se filings—despite Wade’s representation by counsel—to check if the documents
38
raised a conflict. The State asserts that Wade filed more than 200 handwritten pages of
pro se documents and motions.23
Wade cites no authority for the proposition that the State has a duty to bring a
potential conflict of interest to the trial court’s attention, and we have found none. As
for the trial court’s duty, a court clerk’s knowledge of a filing is not imputed to the trial
court, and thus, the mere act of filing a document with the clerk is not generally enough
to bring the document to the trial court’s attention. In re Hearn, 137 S.W.3d 681,
685 (Tex. App.—San Antonio 2004, orig. proceeding) (concerning inmate’s pro se
motion); see also In re Fox, Nos. 05-21-00774-CV, 05-21-00775-CV, 2021 WL 5275826,
at *2 (Tex. App.—Dallas Nov. 12, 2021, orig. proceeding) (mem. op.) (concerning pro
se habeas application). Further, even if we were to hold that the mere filing of a motion
or habeas corpus petition could in some cases be enough to bring a conflict to the trial
court’s attention, a defendant represented by counsel has no right to hybrid
representation. Landers v. State, 550 S.W.2d 272, 280 (Tex. Crim. App. 1977).
Consequently, “a trial court is free to disregard any pro se motions presented by a
defendant who is represented by counsel.” Robinson, 240 S.W.3d at 922.
Wade asserts that “[t]he filing of a pro se motion was all the defendant did in
Orgo v. State, 557 S.W.3d 858, 859–60 (Tex. App.—Houston [14th Dist.] 2018, no pet.),
and it was evidently sufficient.” As an argument that under Orgo, his pro se motions
Not only are they over-200 pages handwritten, they are also single spaced.
23
39
were sufficient, his contention has two flaws. First, Orgo is not an opinion of this court
and is not binding on this court. See Sapp v. State, No. 02-17-00161-CR, 2018 WL
1865934, at *3 n.6 (Tex. App.—Fort Worth Apr. 19, 2018, no pet.) (mem. op., not
designated for publication). Second, Orgo does not reveal how the defendant’s pre-trial
pro se motion came to the trial court’s attention. The opinion states only that “[t]he
trial court held a hearing on appellant’s pro se motion to dismiss her appointed lawyer
five days before her trial was set to begin.” 557 S.W.3d at 859–60. Then, at a hearing
on the day of trial, the defendant told the trial court about what she viewed as a conflict
with her attorney. Id. at 860. Orgo does not hold that a trial court has an independent
duty to review a defendant’s pro se filings when the defendant has an attorney.
Because the trial court had no duty to consider Wade’s pro se filings, the act of
filing them was not alone sufficient to bring any potential conflict to the trial court’s
attention. We further note that the record does not show that Wade raised this potential
conflict at any pretrial hearing or at trial.24 See Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.
24
In the Faretta hearing held after the State rested, Wade stated, “I would just like
to give judicial notice if possible that prior to this trial, I had requested the Court to give
me this set hearing to represent myself to withdraw [his appointed attorney] for those
conflict of interests that I have included in those pro se motions.” Wade did not
mention this assertion in his brief, perhaps because in that statement, Wade did not tell
the court what the alleged conflict was or specify which of his many pro se motions had
raised the alleged conflict. No hearing is required when a defendant makes only a
conclusory allegation of conflict—as Wade recognizes in his brief—and no hearing is
required when no valid basis for the conflict is asserted. See Calloway v. State, 699 S.W.2d
824, 831 (Tex. Crim. App. 1985) (holding defendant is not entitled to automatic reversal
on the basis that trial court failed to inquire about conflict of interest when the alleged
conflict “is advanced without some allegation or assertion of a logical supporting fact”);
40
Ct. 1708, 1717 (1980) (“Unless the trial court knows or reasonably should know that a
particular conflict exists, the court need not initiate an inquiry.”); cf. Estrada v. State,
313 S.W.3d 274, 316 (Tex. Crim. App. 2010) (noting that appellant had not preserved
claims related to charge error because although appellant had filed a motion to charge
the jury on mitigating evidence, he did not bring the motion to the trial court’s attention
and obtain a ruling on it).
Because no potential conflict was brought to the trial court’s attention, to prevail
on this issue, Wade had to show that his attorney was operating under an actual conflict
of interest. The record does not demonstrate any conflict. If his trial attorney had been
representing Rodriguez in some matter, the record does not disclose what that matter
was and does not show that pursuing Rodriguez’s or the attorney’s interest was contrary
to Wade’s interest in a fair trial. See Routier, 112 S.W.3d at 581–82. Accordingly, we must
overrule this issue.
Howard v. State, 966 S.W.2d 821, 826 (Tex. App.—Austin 1998, pet. ref’d) (“A conflict
of interest claim that is advanced without some allegation of a logical supporting fact
does not obligate the trial court to conduct a hearing or entitle the defendant to reversal
without a showing of harm.”); see also Sturgis v. State, No. 11-18-00016-CR, 2020 WL
508271, at *5 (Tex. App.—Eastland Jan. 31, 2020, no pet.) (mem. op., not designated
for publication) (noting that it is not necessary for a trial court to hold a hearing on an
alleged conflict when there is not a valid basis asserted for the conflict). Further, by the
time that Wade made this assertion at trial, the State had rested without calling
Rodriguez as a witness.
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C. Issue Four Conclusion
We recognize the difficulty that a defendant may face if his or her appointed
attorney has a potential conflict but does not bring the conflict to the trial court’s
attention. However, we decline to impose a new duty on trial courts to scour every
document filed by a defendant represented by counsel on the offhand chance that the
defendant raises a conflict. Because any potential conflict was not brought to the trial
court’s attention, and because the record does not establish any actual conflict, we
overrule Wade’s fourth issue.
IV. Denial of Counsel at Sentencing (Issue Five)
In Wade’s fifth and final issue, he contends that he was constructively denied
counsel because, during a critical phase, his attorney entirely failed to subject the
prosecution’s case to meaningful adversarial testing. He asserts that his counsel
stipulated to an enhancement but then later asked that the enhancement be quashed for
lack of notice, and he “waived opening, presented no evidence, and at closing merely
asked—without reasons—for concurrent sentencing and that the stipulated-to
enhancement be found ‘not true.’” He contends that under United States v. Cronic,
466 U.S. 648, 658–660, 104 S. Ct. 2039, 2046–47 (1984), the attorney’s performance
was so deficient as to require reversal. In response, the State argues that the two-prong
test in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), applies
to Wade’s ineffective assistance claim and that Wade cannot sustain either prong. We
agree with the State.
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A. Reviewing Ineffective Assistance Claims
The El Paso Court of Appeals has provided a clear explanation for how we
review ineffectiveness claims and how Cronic applies to that standard:
In the usual case, an appellant, in order to obtain a reversal of his
conviction on the ground of ineffective assistance of counsel, must
demonstrate both deficient performance and prejudice. Cannon v. State,
252 S.W.3d 342, 349–50 (Tex. Crim. App. 2008). That is, he must
demonstrate, by a preponderance of the evidence, that: (1) his trial
counsel’s performance was deficient and (2) harm resulted from that
deficiency sufficient to undermine confidence in the outcome of the trial.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. . . .
An attorney’s performance is deficient when it falls “below an
objective standard of reasonableness” under prevailing professional
norms and according to the necessity of the case. Ex Parte Moore,
395 S.W.3d 152, 156–57 (Tex. Crim. App. 2013). . . .
In evaluating trial counsel’s performance, we must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable, professional assistance and was motivated by sound trial
strategy. In re M.S., 115 S.W.3d 534, 545 (Tex. 2003). When the record is
silent concerning the reasons for trial counsel’s actions, we do not engage
in speculation to find ineffective assistance of counsel. Gamble v. State,
916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.).
Accordingly, ineffective assistance claims must be firmly found[ed] in the
record and the record must affirmatively show the alleged ineffectiveness.
Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) [(citing] Thompson[
v. State], 9 S.W.3d [808,] 814 [(Tex. Crim. App. 1999)].
However, if an appellant can demonstrate that defense counsel
“entirely fail[ed] to subject the prosecution’s case to meaningful
adversarial testing,” so that there was a constructive denial of the
assistance of counsel altogether, then prejudice, because it is “so likely,” is
legally presumed. [Cronic,] 466 U.S. [at] 648 . . . , 104 S. Ct. [at] 2046–47. . . ;
see also Bell v. Cone, 535 U.S. 685, 696–97, 122 S. Ct. 1843, 1851 . . . (2002)
(noting that, under Cronic, defense counsel’s failure to test the
prosecution’s case must be “complete” before prejudice is presumed);
Strickland, 466 U.S. at 692, 104 S. Ct. at 2067 (“constructive denial of the
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assistance of counsel altogether is legally presumed to result in prejudice”);
Ex Parte McFarland, 163 S.W.3d 743, 752–53 (Tex. Crim. App. 2005)
(discussing constructive denial of counsel and presumed prejudice).
State v. Frias, 511 S.W.3d 797, 809–11 (Tex. App.—El Paso 2016, pet. ref’d) (holding
that although the appellant complained “about counsel’s conduct concern[ing] a litany
of alleged errors, omissions, and strategic blunders,” the record did not support a
finding that Cronic’s presumption of prejudice applied). As the Texas Court of Criminal
Appeals has explained, under Cronic, a defendant is denied counsel when his attorney is
physically absent from the proceeding or when the attorney is mentally absent, “i.e.,
counsel is asleep, unconscious, or otherwise actually non compos mentis.” McFarland,
163 S.W.3d at 752 (footnotes omitted). “This prong of Cronic is epitomized by the ‘inert’
or ‘potted plant’ lawyer who, although physically and mentally present in the courtroom,
fails to provide (or is prevented from providing) any meaningful assistance.” Id.B. Analysis
Wade contends that he has not raised an ineffectiveness claim under Strickland
and that the only relevant standard is Cronic’s constructive-denial-of-effective-assistance
standard, which presumes prejudice from the attorney’s performance. Citing Cannon v.
State, Wade argues that “constructive denial occurs not only where the defendant has a
‘potted plant’ attorney, . . . but [also] where defense counsel provides only feeble,
obviously pointless assistance that would get his client little or nothing.” See 252 S.W.3d
at 350.
44
However, in Cannon, the defendant’s attorney was unprepared for trial and thus,
after unsuccessfully moving for a continuance and a recusal of the trial judge, refused
to participate in the trial. Id. The attorney moved for an instructed verdict and brought
a sentencing mistake to the trial court’s attention, but he declined to participate in jury
selection, to enter a plea for his client, to make an opening or closing argument, to
cross-examine any of the State’s witnesses, to make any objections, to offer any defense,
to request any special jury instructions, or to offer any evidence or argument at
punishment. Id. The defendant’s attorney, “although physically present in the
courtroom at all the requisite times, effectively boycotted the trial proceedings and
entirely failed to subject the prosecution’s case to meaningful adversarial testing,” and
“[b]y his refusal to participate, defense counsel abandoned his role as advocate for the
defense and caused the trial to lose its character as a confrontation between
adversaries.” Id.The attorney in this case did more than the attorney in Cannon. For one thing, he
participated in the guilt/innocence stage. He also made a closing argument, albeit one
that Wade considers deficient. Wade points to the attorney’s failure to make objections,
but when the State offered its evidence at punishment, it “reoffer[ed] all of the evidence
from the guilt/innocence portion of the trial subject to the same objections and the
same rulings.” Wade’s attorney then asked that his previous objections be preserved.
Thus, the State’s offer of evidence was made subject to Wade’s prior objections.
45
Wade also complains that after his attorney had stipulated to the admissibility of
Wade’s prior indecency-with-a-child conviction, his attorney moved to quash the
enhancement based on that prior conviction on the ground that the State had not
provided timely notice of enhancement. Wade characterizes that objection as futile and
as another example of how his attorney provided pointless assistance. 25 But making a
pointless objection is not the equivalent of doing nothing. To the extent that Wade
argues that a futile objection renders an attorney’s representation ineffective, that
argument would be properly addressed in a Strickland analysis, not an analysis under
Cronic.
In summary, this is not a Cronic situation. This is a Strickland situation. However,
Wade does not include any alternative Strickland arguments in his brief. Instead, he
asserts in his reply brief that “[n]o Strickland claim is before th[is] Court and, contrary
The pre-trial stipulation to the conviction was for purposes of Texas Code of
25
Criminal Procedure Article 38.37, which governs the admissibility of certain extraneous
offenses at trial, and his trial objection was on a different basis—that regardless of the
admissibility of the prior conviction, the State could not use the prior conviction for
enhancement purposes under Texas Penal Code Section 12.42 because it had not
provided enough notice of its intent to do so. See Tex. Penal Code Ann. § 12.42; Tex.
Code Crim. Proc. § 38.37. It is not clear whether the attorney thought that the objection
had merit, but the Court of Criminal Appeals has held that when the defendant
stipulated to a prior conviction, the defendant had no defense to an enhancement
allegation based on that conviction, and thus the State’s notice of enhancement
provided at the beginning of the punishment phase was sufficient. See Villescas v. State,
189 S.W.3d 290, 295 (Tex. Crim. App. 2006). As the State points out, Wade had filed a
pro se pre-trial motion objecting to the enhancement notice, and it is possible that his
attorney raised the timeliness objection at Wade’s urging.
46
to the State Brief’s argument, such a claim should not be decided.” [Emphasis added.]
Nevertheless, in the interest of justice, we consider whether the record establishes
Strickland’s two prongs.
Regarding the attorney’s failure to make an opening statement, an attorney’s
decision to forego an opening statement is “inherently tactical,” Torode v. State, No. 02-
14-00232-CR, 2015 WL 3917823, at *2 (Tex. App.—Fort Worth June 25, 2015, no pet.)
(mem. op., not designated for publication); “[f]ew matters during a criminal trial could
be more imbued with strategic implications than the exercise of this option.” Darkins v.
State, 430 S.W.3d 559, 570 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (quoting
Calderon v. State, 950 S.W.2d 121, 127 (Tex. App.—El Paso 1997, no pet.)). The record
is silent about the attorney’s reasons for not making an opening statement, and the
failure to make an opening statement is not conduct that is so outrageous that no
competent attorney would have engaged in it. Id. at 569 (quoting Goodspeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005), for the proposition that “[w]hen the
record is silent as to trial counsel’s strategy, we will not conclude that appellant received
ineffective assistance unless the challenged conduct was ‘so outrageous that no
competent attorney would have engaged in it’”). As the State points out, the prosecutor
also chose to forego an opening statement. Similarly, a stipulation to a prior conviction
can also be a tactical decision. See Turner v. State, 471 S.W.2d 56, 58 (Tex. Crim. App.
1971); see also Patterson v. State, No. 11-19-00200-CR, 2021 WL 1918876, at *7 (Tex.
App.—Eastland May 13, 2021, no pet.) (mem. op., not designated for publication)
47
(holding that defendant had not established reasonable probability that the result of the
proceeding would have been different but for the attorney’s stipulation that annulled a
defense strategy).
Wade also argues that counsel “did not try to point out any positive aspects of
Wade,” but Wade does not say what positive aspects he has that should have been
presented. He does not argue that there was any specific mitigating evidence available
that could have been presented that the attorney failed to introduce or discover. We
cannot determine from the record that the attorney’s failure to produce positive or
mitigating evidence was so outrageous that no competent attorney would have engaged
in it. See Goodspeed, 187 S.W.3d at 392; Brennan v. State, 334 S.W.3d 64, 79 (Tex. App.—
Dallas 2009, no pet.) (stating that a claim of ineffective assistance based on counsel’s
failure to put on mitigating witness testimony fails in the absence of a showing that the
defendant would have benefitted from the testimony); see also McMahon v. State, Nos. 02-
19-00144-CR, 02-19-00145-CR, 2020 WL 579103, at *7 (Tex. App.—Fort Worth Feb.
6, 2020, pet. ref’d) (mem. op., not designated for publication) (stating same).
As for the attorney’s failure to argue any reasons for the trial court to order the
sentences to run concurrent rather than consecutive, Wade says that the attorney should
have emphasized that the complainant was not a “child” but a “teenager old enough to
be certified as an adult” and that the fact that Wade did not have a weapon during the
assaults or threaten the complainant. However, the teenage complainant was still a child,
see Tex. Penal Code Ann. § 22.011(c), and we cannot say that the attorney’s not
48
emphasizing Wade’s lack of weapon was so outrageous that no competent attorney
would have engaged in it. See Goodspeed, 187 S.W.3d at 392.
C. Issue Five Conclusion
Strickland applies to Wade’s complaints about his appointed attorney, and the
record does not support his arguments. Accordingly, we overrule Wade’s fifth issue.
Conclusion
Having overruled Wade’s five issues, we affirm the trial court’s judgment.
/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 16, 2023
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