                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00244-CR

HERMAN P. GULLATT, JR.,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                          From the 13th District Court
                            Navarro County, Texas
                           Trial Court No. 31,934-CR


                                   OPINION


      Appellant was convicted by a jury of the felony offense of possession of

methamphetamine in an amount of over 1 gram but less than 4 grams with intent to

deliver. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (c) (West 2010). The State also

alleged that appellant had two prior felony convictions. TEX. PENAL CODE ANN. §

12.42(d) (West 2011). Appellant pled true to these enhancement allegations. Following

a punishment hearing, the trial court found the enhancement paragraphs to be true and

assessed appellant’s punishment at 60 years in prison. Appellant appeals.

      In eight issues, appellant complains that the evidence was both legally and
factually insufficient, trial counsel rendered ineffective assistance, the drug evidence

should have been suppressed, the jury should have been instructed on the legality of

the search, the trial court improperly amended the indictment, the jury’s verdict

improperly convicted appellant of an offense not charged and that he was denied his

right to a speedy trial and even to present evidence regarding his speedy trial motion.

We overrule these issues and affirm the conviction.

                               BACKGROUND FACTS

        During the early morning hours of February 24, 2008, two Kerens Police

Department officers observed a white pickup truck parked just off the highway at the

entrance of a long residential driveway. They stopped to investigate.          As they

approached, they noticed the defendant in the driver’s seat. After the defendant rolled

down the window, Officer Chamblee observed blood on the inside of the driver’s door.

He then asked the defendant to exit the vehicle and for some identification.        The

defendant went through items in both the front and back seats before he finally exited

the vehicle and produced some identification. The defendant then got back into his

vehicle, rolled up the windows, and locked the doors. Officer Chamblee eventually was

able to talk the defendant out of his vehicle where the defendant refused to be patted

down and became argumentative. The officer called for backup. At this time, the

dispatcher informed Chamblee that appellant had an outstanding arrest warrant for a

traffic offense.   When the backup officers arrived, appellant was patted down,

handcuffed, and placed under arrest for the traffic warrant.

        Officer Chamblee inspected the back seat area of his patrol car just as he had

Gullatt v. State                                                                  Page 2
done at the beginning of his shift and after he transported an earlier prisoner. On all

three occasions, the back seat area was clean and free of contraband.           He placed

appellant in the back seat of his patrol car, transported him to jail, and turned him over

to the jail personnel. Chamblee then inspected the back seat area of his patrol car. He

found two baggies which laboratory analysis later determined contained 3.5 grams of

methamphetamine. Chamblee seized the baggies, went into the jail, and observed the

jailers when they found two baggies of white powder in appellant’s mouth. The white

powder in those baggies was determined not to be an illegal substance but all four

baggies were similar.

        At trial, Elmer Tanner and Stan Farmer both testified they were experienced law

enforcement officers with the majority of their careers in narcotics. They both gave their

expert opinion that based on the quantity of methamphetamine, the number of baggies,

and other facts in the case, appellant’s possession was with the intent to deliver.

                          SUFFICIENCY OF THE EVIDENCE

        Appellant’s first two issues argue that the evidence was both legally and

factually insufficient to support the conviction. The “factual insufficiency” issue was

premised on the Court of Criminal Appeals’ holding in Clewis v. State, 922 S.W.2d 126

(Tex. Crim. App. 1996). Since appellant’s brief was filed, Clewis was overruled. Brooks

v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). Under Brooks, the dual concepts of

“factual insufficiency” and “legal insufficiency” are now a single “sufficiency”

standard, as was articulated by the United States Supreme Court in Jackson v. Virginia,

443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Under that standard, when

Gullatt v. State                                                                      Page 3
reviewing the sufficiency of the evidence, we look at all the evidence in the light most

favorable to the verdict in order to determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. Id. at 319.

        Appellant presents a three-pronged argument about the sufficiency of the

evidence.      First, there are insufficient affirmative links to actually tie him to the

methamphetamine. Second, the overall evidence does not support the “with intent to

deliver” element. Finally, the “chain of custody” concerning the seized evidence was so

deficient that it has “no legal weight at all.”

LINKS

        The evidence linking appellant to the methamphetamine consisted of Officer

Chamblee’s testimony that he had searched the back of his patrol car both after he had

transported his last prisoner and immediately before placing appellant in the patrol car.

After he delivered appellant to the jail, he again searched it and found the

methamphetamine under the back seat where appellant had been sitting. Such a patrol

car search, before and after a prisoner is transported, is a standard law enforcement

practice. Occasionally, as was the case here, contraband is found in the area where the

prisoner was seated.

        In Garcia v. State, 871 S.W.2d 769 (Tex. App.—Corpus Christi 1994, pet. ref’d), the

arresting officer had followed a similar procedure of searching before and after he

transported a prisoner to the police station. In the second search, the officer found a

syringe, three small baggies of cocaine and some marihuana under the back seat

cushion where the prisoner was sitting. The Garcia court concluded that the evidence

Gullatt v. State                                                                     Page 4
was sufficient to link the defendant to the drugs. Id. at 271. Other courts, confronted

with nearly the same facts and arguments, have likewise concluded that the evidence

was sufficient. E.g., Jackson v. State, No. 08-10-00105-CR, 2011 WL 1642617 (Tex. App.—

El Paso, April 29, 2011, no pet.) (not designated for publication) (baggie of cocaine

found under the seat cushion); Renteria v. State, No. 03-96-00736-CR, 1997 WL 528970

(Tex. App.—Austin, August 28, 1997, no pet.) (not designated for publication) (baggie

of methamphetamine found stuffed behind the seat).

        The logic of these prior cases applies equally in this case. The jury heard the

evidence and could rationally have concluded appellant placed the methamphetamine

in the back of Officer Chamblee’s patrol car.

INTENT TO DELIVER

        The second prong of appellant’s sufficiency argument is that the evidence to

show “intent to deliver” was insufficient. In addition to the facts of the case, the State

called two expert witnesses to testify that in their opinion, appellant possessed the

methamphetamine with intent to deliver. The officers had 11 and 6 years, respectively,

of narcotics experience in Navarro County. They testified about how it is sold and used

specifically in their locale. They talked about the differences they would find in cases

where an individual merely possessed the drug and a situation where an individual

possessed it with intent to deliver. Based upon the quantity of drugs, the additional

baggies in appellant’s mouth, the other facts of the case and the expert testimony, a

rational trier of fact could conclude that appellant’s possession was with the intent to

deliver.

Gullatt v. State                                                                    Page 5
CHAIN OF CUSTODY

        The third prong of appellant’s sufficiency argument is that the “chain of

custody” concerning the drug evidence was deficient. Officer Chamblee testified that

after he seized the evidence from his patrol car, it field-tested positive for

methamphetamine, he personally transported it to the Kerens Police Department,

placed it in an envelope, and then placed the envelope in a secure lock box. Chief

Leonard Slamcik testified he retrieved the envelope from the lock box and took it to the

DPS lab in Waco where it was tested. The DPS chemist testified she received the

envelope from Chief Slamcik, tested the suspected drugs, and found it was 3.5 grams of

methamphetamine. The testimony regarding the various envelopes in which the drugs

were contained is at times confusing. Testimony also contains several references to “the

evidence” rather than to the specific exhibit number or numbers.            However, no

objection was raised to the admission of any of the exhibits or the testimony of the

chemist.

        Absent evidence of tampering or fraud, problems with the chain of custody do

not affect the admissibility of evidence. Druery v. State, 225 S.W. 3d 491, 503 (Tex. Crim.

App. 2007). The record clearly shows that the evidence seized was placed in the secure

Kerens Police Department lock box. The evidence was transported to the lab where the

chemical analysis showed it was 3.5 grams of methamphetamine.               Despite some

confusion over the envelopes in court and some imprecise testimony regarding the

evidence, a rational trier of fact could have concluded that the item seized from the back

seat of Officer Chamblee’s patrol car was the same item determined by the DPS lab to

Gullatt v. State                                                                     Page 6
be 3.5 grams of methamphetamine.

        All three prongs of appellant’s attack on the sufficiency of the evidence fail.

Appellant’s first two issues are overruled.

                      INEFFECTIVE ASSISTANCE OF COUNSEL

        Next, appellant complains that he was denied the effective assistance of counsel.

Appellant’s complaint is based exclusively on counsel’s failure to object to two items of

evidence: 1) the drug evidence because the chain of custody was not properly

established and 2) the baggies found in appellant’s mouth, again, because they were not

properly authenticated.

        In order to prevail on a claim of ineffective assistance of counsel, appellant must

show 1) that his attorney’s performance was deficient and 2) that the deficiency was so

serious that it prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986).

We need not address the second portion of the Strickland standard because the record

fails to show that trial counsel’s performance was deficient.

        As we noted earlier in our discussion of the sufficiency of the evidence, problems

with the chain of custody go to the weight rather than the admissibility of the evidence.

Druery v. State, 225 S.W.3d 491, 503 (Tex. Crim. App. 2007). Given the facts of this case,

any objection made by appellant’s counsel on the chain of custody issue could properly

have been overruled.

        Regarding the baggies recovered from appellant’s mouth, appellant’s attorney

objected to their admission on grounds of relevance. His objection was overruled.

Gullatt v. State                                                                     Page 7
Appellant’s argument now is that he should have also objected that the baggies were

not properly authenticated.

        Evidence of the baggies being found in appellant’s mouth had previously been

admitted in testimony from Officer Chamblee. There was no basis for objecting to this

testimony and no objection was made. The admission of the actual baggies was simply

cumulative of evidence the jury had already heard. Even had counsel made such an

objection and even if the trial court sustained it, the prosecution may well have

countered by recalling Officer Chamblee to either identify the baggies or establish that

the baggies were at least similar to the ones found in appellant’s mouth and offered

them as demonstrative evidence. Counsel’s decision not to object on the grounds of

authenticity simply does not fall outside of the bounds of the professional norm for

reasonableness.

        Counsel’s action in both the complained of incidents was not deficient. The third

issue is overruled.

                                SEARCH AND SEIZURE

        Appellant next complains that “evidence was obtained as a result of the illegal

detention of appellant without probable cause or reasonable suspicion.” A motion to

suppress was held immediately prior to the beginning of the trial testimony.

        The trial court did not enter findings of facts and conclusions of law. He did

deny the motion to suppress. The facts show routine police action of approaching a

parked, unoccupied vehicle at 3:00 a.m. located just off the highway at the beginning of

a long residential driveway. When the officers realized it was occupied, they engaged

Gullatt v. State                                                                   Page 8
in a consensual encounter with the appellant, observed blood on the inside of the

driver’s door, asked for and obtained identification, ran a warrants check, and asked

appellant to step out. While appellant did step out, he declined to be frisked and re-

entered his vehicle. The dispatcher notified the officers of an active arrest warrant

within approximately four minutes.        The trial court would be fully justified in

determining that the identification was obtained during a consensual encounter

between the officers and appellant.      The trial court would be equally justified in

determining that, if at some point during the four-minute wait, the “encounter” became

a detention, that such a brief investigative detention was justified based on the totality

of the circumstances including the blood on the driver’s door.

        However, we need not reach the merits of appellant’s claims.            When the

methamphetamine was offered into evidence, defense counsel affirmatively stated, “We

have no objections.”

        When a pre-trial motion to suppress is overruled, a defendant need not make a

subsequent objection to the same evidence to preserve error.         Gearing v. State, 685

S.W.2d 326, 329 (Tex. Crim. App. 1985), overruled on other grounds, Woods v. State, 956

S.W.2d 33, 38 (Tex. Crim. App. 1997). However, if he affirmatively states at trial that he

has “no objection” to that evidence, he waives any error despite the pre-trial ruling. Id.;

see Holmes v. State, 248 S.W.3d 194 (Tex. Crim. App. 2008).

        Appellant obtained an adverse ruling on his motion to suppress. However, at

trial, he waived any error by affirmatively stating that he had “no objections.”

Appellant’s fourth issue is overruled.

Gullatt v. State                                                                     Page 9
                   JURY INSTRUCTION ON VALIDITY OF THE SEARCH

        Appellant’s next issue complains that the trial court denied his requested jury

instruction concerning the validity of the search under Article 38.23 of the Code of

Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005). Although his

affirmative statement of “no objections” waived his right to complain on appeal

concerning the judge’s decision to admit the evidence, it does not waive his right to

receive a jury instruction under Article 38.23. Holmes v. State, 248 S.W.3d 194, 196 (Tex.

Crim. App. 2008). We will, therefore, consider the merits of appellant’s claim.

        A defendant is entitled to a jury instruction under Article 38.23 when there is a

“genuine dispute about a material fact.” Madden v. State, 242 S.W.2d 504, 510 (Tex.

Crim. App. 2007). The Madden court explained that the charge should be given when

there is a specific historical fact or set of facts, material to the legal determination, put in

dispute before the jury. Thus, when an officer testified he stopped a defendant going 61

m.p.h. in a 55 m.p.h. zone, and the defendant stated that he was going 55, the specific

historical fact of whether or not he was speeding could be submitted to the jury in an

Article 38.23 charge. However, the defendant was not entitled to a charge on the

general legal issue of whether or not the officer had “reasonable suspicion” to continue

the detention of the defendant. Id. at 511.

        At trial, appellant’s counsel did not articulate any historical fact in dispute when

asking for the charge.         He argued for an instruction about “totality of the

circumstances” and “reasonable suspicion.” Again, on appeal, appellant talks about

“detention” and “reasonable suspicion.” The closest appellant comes to identifying a

Gullatt v. State                                                                         Page 10
disputed fact is an argument about “whether appellant complied with their request or

whether he did not” and “whether it was a driveway to a residence as the State claims

or whether it was simply an open field as appellant claims.” Initially, we note that

while appellant testified outside the jury’s presence at the pre-trial suppression hearing,

he did not testify in front of the jury. Officer Chamblee was the only witness who

testified about the driveway and about appellant’s compliance with his requests.

Nowhere in Chamblee’s jury testimony – direct, cross-examination or when he was

recalled by the defense – was any disputed fact developed.

        Since there were no genuine disputes about material facts developed in front of

the jury, appellant was not entitled to his requested jury instruction. Appellant’s fifth

issue is overruled.

                        AMENDMENT TO THE INDICTMENT

        In his next issue, appellant contends that when the trial court permitted the State

to amend the indictment his substantive rights were prejudiced.              The original

indictment charged possession of methamphetamine, with intent to deliver, in a

quantity of 4 grams or more but less than 200 grams. The State filed a motion to amend

the indictment to change the amount to 1 gram or more but less than 4 grams. After a

hearing, the motion was granted by the trial court who then signed a written order

containing the entirety of the amended indictment. The hearing was held and order

signed more than two months prior to the trial.           The process of amending the

indictment was in full compliance with the statutory procedures. TEX. CODE CRIM.

PROC. ANN. art. 28.10 (West 2010).

Gullatt v. State                                                                    Page 11
        Appellant’s argument is twofold:       First, the amendment charges a different

offense and, second, the grand jury that indicted him was not presented with evidence

of the proper weight of the methamphetamine. Under appellant’s argument, either of

these situations violates the statute authorizing amendments. Id. at (a).

DIFFERENT OFFENSE

        As to his first argument, appellant was originally indicted for possession of a

controlled substance with intent to deliver under Section 481.112(a) of the Texas Health

& Safety Code. TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2010). The

amended indictment charges him with the identical offense under the same statutory

section. The charging instruments differ only in the quantity of the methamphetamine

allegation. The punishment range for the original quantity is a first degree felony set

out in Section 481.112(d). Id. at (d). The punishment range for the amended quantity is

a second degree felony set out in Section 481.112(c). Id. at (c).

        A similar contention was raised in Flowers v. State, 815 S.W.2d 724 (Tex. Crim.

App. 1991). The Flowers court gave a broad reading to the term “different offense.” It

determined that any reading other than a different statutory offense would nullify the

entire purpose of Article 28.10. Id. at 728.

        We need not explore the parameters of what a “different offense” means. Both

the original and amended indictment contains the identical offense. The fact that the

punishment range is different, and involves a different subsection of the same statute,

does not transform the charge into a “different offense” as that term is used in Article

28.10(c). TEX. CODE CRIM. PROC. ANN. art. 28.10(c) (West 2006).

Gullatt v. State                                                                 Page 12
GRAND JURY

        The second portion of appellant’s argument is that his substantial rights were

prejudiced because the grand jury was not informed of the correct weight of the

methamphetamine. The record does not contain any information about what evidence

the grand jury heard. Appellant cites no authority for this portion of his argument.

        At trial, the evidence showed that the drug exhibit submitted to the crime lab

weighed 4.9 grams. When the packaging was removed, the actual methamphetamine

weighed 3.5 grams. Also at trial, the State offered two expert witnesses to testify that

the methamphetamine was possessed with intent to deliver.

        Appellant invites this Court to speculate that a grand jury might view 200 grams

of methamphetamine in a different light than 1 gram for the purpose of returning an

indictment that alleged “with intent to deliver.” We decline to engage in any such

speculation. The State possessed evidence which convinced a trial jury of the “with

intent to deliver” element. It is reasonable to assume that some form of that evidence

was presented to the grand jury.

        On the record before us, we do not conclude that any substantial right of

appellant was affected. Appellant’s issue is overruled.

                   CONVICTION FOR OFFENSE NOT CHARGED

        Next, appellant contends that he was convicted of an offense not charged in the

indictment. The crux of this argument is that the trial judge granted the state’s motion

to amend the indictment and signed an order which conformed to his ruling. The

motion and order both allege the offense for which appellant was convicted. However,

Gullatt v. State                                                                  Page 13
the original indictment was also changed by handwritten notations to conform to the

judge’s ruling. Additionally, the “with intent to deliver” allegation was struck out.

These changes were initialed, presumably by the trial judge, but not dated.

        In order to amend an indictment, it must be authorized by both a motion and

order to do so. Riney v. State, 28. S.W.3d 561, 566 (Tex. Crim. App. 2000). Once the

authorization exists, the trial court may do the actual amending by either writing on the

original indictment or signing or otherwise authorizing an appropriate order. Id.

        In the instant case, there was no motion or order authorizing the court to amend

the indictment by deleting the “intent to deliver.” There was both a motion and written

order, signed by the trial court, changing the quantity of the methamphetamine

allegation. The only effective amendment to the indictment was this signed order

which was properly authorized.        The judge’s mistaken deletion of the “intent to

deliver” language on the original indictment was unauthorized and of no legal effect.

        We also note that at trial, all parties understood that the defendant was charged

with possession with intent to deliver. The jury was properly charged on that offense.

Indeed, the court’s charge even included a lesser included offense for possession of

more than 1 gram but less than 4 grams without intent to deliver.

        There being no error, appellant’s seventh issue is overruled.

                                     SPEEDY TRIAL

        Appellant’s final issue is that the trial court erred in not dismissing the case

because appellant’s right to a speedy trial was denied.

        Appellant was arrested on February 24, 2008. He was appointed a lawyer two

Gullatt v. State                                                                    Page 14
days later. An indictment was returned on March 20, 2008.

          On August 18, 2008, appellant’s attorney filed a discovery motion.             On

September 11, 2008, appellant filed a pro se “Motion to be Heard on Due Process of

Law.” On the same day, his attorney filed a motion to suppress. The record does not

show any immediate action being taken on these motions.

          In late January, 2009, appellant filed a series of pro se motions. These included a

motion to have the case dismissed because he hadn’t been afforded a speedy trial. He

also filed a motion to represent himself. In the motion, he indicated he wanted to keep

his court-appointed attorney as stand-by counsel.

          In early February, appellant’s attorney filed a supplemental discovery motion

and a Brady motion. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963).     Also, in early February, appellant sent a letter to the trial court which

congratulated him on his recent election and explained appellant’s side of the case. On

February 9, 2009, a hearing was held on appellant’s motion to represent himself.

Shortly thereafter, the trial judge granted appellant’s motion to represent himself with

his attorney acting as stand-by counsel.         As subsequent proceedings showed, the

representation, with appellant’s full approval, was actually a hybrid counsel

arrangement with the licensed attorney doing nearly all the pre-trial questioning and

arguments and all of the trial work in front of the jury.

          As motions were being filed in late January and early February, there were

evidently discussions about a resolution of the case going on between the State and

defense. Appellant was given a polygraph, likely in early February, which he did not

Gullatt v. State                                                                      Page 15
pass.

        On March 10, 2009, a pre-trial hearing was held. On the same day, the State filed

a motion to amend the indictment. At the hearing, appellant objected to hearing the

motion to amend the indictment because he had no prior knowledge of it. He did

indicate that he would be moving to dismiss the case because the State did not have a

valid indictment within 180 days.1 The trial court agreed not to take up that motion,

told the parties to submit authorities, and continued by asking what other pre-trial

matters needed to be taken up. Appellant’s attorney indicated the only thing that

needed to be taken up were the defense’s discovery motions. The court and parties

then considered each of the 25 items in the original discovery motion and the four items

in the supplemental motion. The hearing ended with an agreement that they would get

a date to hear the State’s motion to amend the indictment. At no point in the hearing

did appellant or his attorney urge their motion for a speedy trial or even inquire about a

trial date.

        On March 25, 2009, another pre-trial hearing was held. After hearing arguments,

the court granted the State’s motion to amend the indictment. Again, neither appellant

nor his attorney urged their motion for a speedy trial or inquired about a trial date. No

trial date had been set.

        On May 19, 2009, a hearing was held on appellant’s motion for a speedy trial. At

this point, a trial date of June 8 had recently been set. The State argued that since the

1This argument was part of appellant’s pro se speedy trial motion. It was based on TEX. CODE CRIM. PROC.
ANN. art. 32.01 (West 2006). Since the State had obtained a valid indictment, even if it was later amended,
appellant’s argument is without merit. Cameron v. State, 988 S.W.2d 835, 843 (Tex. App.—San Antonio
1999, pet. ref’d).

Gullatt v. State                                                                                   Page 16
trial date had been set, the motion was moot. The trial court indicated that he tended to

agree but that counsel could proceed. The attorney then offered to proceed with an

offer of proof. The court indicated his approval of that approach. Appellant then took

the stand and testified to his satisfaction with his attorney. Counsel then made an offer

of proof which detailed what appellant’s testimony would be concerning the speedy

trial issue.2 The State then indicated it had been ready for trial but didn’t otherwise

respond.

        At the conclusion of the hearing, the trial court determined that appellant’s case

was second on the docket to a CPS (Child Protective Services) case that was running up

on its statutory deadline. The court indicated that he would make sure that appellant’s

case was heard on June 8th even if he had to bring in a visiting judge. The actual trial

did occur on the June 8th date.

        An accused is guaranteed the right to a speedy trial by the Sixth Amendment to

the United States Constitution. Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed 2d

101 (1972); Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002). Barker sets out four

factors that must be considered in analyzing a speedy trial claim: 1) length of delay, 2)

reason for delay, 3) assertion of the right, and 4) prejudice to the accused. Cantu v. State,

253 S.W.3d 273, 280 (Tex. Crim. App. 2008). The State has the burden of justifying the

length of delay while the accused has the burden of proving that he asserted the right

and showing prejudice. Id. The Barker factors are not weighed equally; rather, the


2 Part of appellant’s issue is that he was denied the right to put on evidence at the hearing. The record
does not support that allegation. While use of the offer of proof was unorthodox, it was evidently agreed
to by all parties. No error is shown.

Gullatt v. State                                                                                 Page 17
accused’s burden on the last two factors varies inversely with the State’s degree of

culpability for the delay. Id. Thus, the longer the delay and the more bad faith or

negligence attributed to the State, the less an accused must show on the prejudice and

diligence in asserting the right. Id. at 280-81. Conversely, the shorter the delay and the

less bad faith or negligence, the more an accused must show on the prejudice and

diligence factors.

        The trial court did not make any explicit findings of fact or conclusions of law.

We, therefore, presume that the trial court resolved any disputed fact issues in favor of

the State. Hunt v. State, 237 S.W.3d 434, 436 (Tex. App.—Waco 2007, pet. ref’d). We also

defer to any implied findings supported by the record. Id.

LENGTH OF DELAY

        Initially, we must look at the length of delay to determine if it was unreasonable

enough to be “presumptively prejudicial.” A delay of four months has been held not to

meet this threshold; a delay of 17 months has been held to meet it. Pete v. State, 501

S.W.2d 683, 689 (Tex. Crim. App. 1973); Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim.

App. 1983). Courts generally find the requirement to be met somewhere around the

one year mark although that depends on the unique facts of each case. See Cantu, 253

S.W.3d at 281, n.21.

        In our case, the delay was 15½ months. While there is not a huge difference

between a delay approaching one year and a 15½ month delay, it is still a difference.

This was not a case involving necessary delays for extensive DNA or other scientific

testing. It did not involve co-defendants who could not be tried together. Rather, it was

Gullatt v. State                                                                   Page 18
a fairly straightforward drug possession case. Indeed, the drug analysis was completed

within a month of appellant’s arrest. Under these facts, we find that a delay of 15½

months is sufficiently long to trigger the Barker analysis.3

REASON FOR DELAY

        The next factor we look at is the reason for the delay. At trial and on appeal,

appellant alleges neither bad faith nor official negligence. In his brief, appellant does

argue that this factor should be weighed against the State because they provided no

reason for the delay. The State responds that while they were ready to try the case, it

was delayed because of ongoing plea negotiation, discovery discussions, appellant’s

desire for a polygraph, and the general overcrowding of the Navarro County courts.

        On the issue of the reason for the delay, the state bears the burden of justification.

The State’s argument that the delay was caused by ongoing plea negotiations, discovery

discussions, and appellant’s desire for a polygraph is fully supported by the record.

Delays caused by good faith plea negotiations are legitimate and will not be counted

against the State. State v. Munoz, 991 S.W.2d 818, 824 (Tex. Crim. App. 1999).

Additionally, there is no allegation or evidence that the delay was the result of bad


3 Appellant cites State v. Rangel, 980 S.W.2d 840, 833 (Tex App.—San Antonio 1998, no pet.) for the
proposition that “a delay beyond eight months” triggers a speedy trial analysis. An inflexible “eight
month rule” to be applied in all cases may be a fair reading of Rangel. However, in Barker, a case which
affirmed a conviction where there was a five year delay, the Supreme Court noted, “[B]ecause of the
imprecision of the right to a speedy trial, the length of delay that will provoke such an inquiry is
necessarily dependent upon the peculiar circumstances of the case.” Barker v. Wingo, 407 U.S. 514, 530-31
(1972). The Court of Criminal Appeals has not adopted an “eight month rule” but has rather specifically
stated, “There is no set time element that triggers the [Barker] analysis.” Cantu v. State, 253 S.W.3d 273,
281 (Tex. Crim. App. 2008). In finding that the 15½ month delay triggers the Barker analysis we are
following Barker and Cantu. We are not adopting a “15½ month rule.” Our holding is only that on the
facts of this particular case (no delays because of scientific testing, co-defendant issues, or other
complicating factors), this 15½ month delay does trigger the Barker analysis.

Gullatt v. State                                                                                   Page 19
faith, intentional action by the State, or official negligence. The State has met its burden

on this factor. While this alone should probably be dispositive of appellant’s issue,

Barker and subsequent cases mandate that courts consider all four factors; so we will

continue our analysis. See id. at 825.

ASSERTION OF RIGHT

        We next analyze appellant’s assertion of his right to a speedy trial.        While

represented by counsel, appellant filed two handwritten, pro se motions which on

appeal he argues asserted his right to a speedy trial. Neither has a certificate of service.

Both were filed before appellant requested to represent himself and before the court

allowed appellant to proceed as hybrid co-counsel. The State contends it was unaware

of the motions when they were filed. It was dealing with appellant’s attorney, the

written motions he had filed, plea negotiations, and discovery.

        The first pro se motion, filed by appellant on September 11, 2008, is a three-page,

handwritten document styled “Motion to be Heard on Due Process of Law.” The

motion requests a hearing to show due process and cruel and unusual punishment

violations. Essentially, both his motion and cases cited deal with search and seizure

questions and alleged Brady violations. He does complain about his pre-trial setting

being “put off” but he does so in the context of his desire for a hearing on the search

and Brady issues. Nowhere in his motion is the term “speedy trial” used. None of the

three cases cited in the motion are speedy trial cases.

        On January 26, 2009, appellant filed a handwritten, three-page motion styled

“Motion for Speedy Trial and Disposition.” Unlike his earlier motion, this motion does

Gullatt v. State                                                                     Page 20
use the term “speedy trial” and cites a speedy trial case. The motion does not, except in

its style, request a speedy trial. It only asks for a dismissal because he was not afforded

a speedy trial.

        Appellant and his attorney were before the court for hearing on February 9th,

March 10th and March 25th. At none of these hearings did he raise the speedy trial

issue or even ask for a trial date. He did present his speedy trial motion to the court at

the hearing on May 19th.

        The burden on this issue is on the appellant to show he asserted his right and

was persistent in his request. See Munoz, 991 S.W.2d at 825. The record shows that the

trial court was first apprised of his request at the May 19, 2009, hearing. By that time,

the trial date on June 8, 2009, was set. The trial court immediately took action to make

sure appellant’s case would be tried on the June 8th setting. There is nothing in the

record to suggest that had appellant asserted his right to a speedy trial at any of the

earlier hearings, the trial court would not have reacted similarly and made sure a trial

was held within the next few weeks. Certainly the trial court would be justified in

finding that had appellant asserted his right, a trial would have been held months

earlier.

        We find that appellant did raise the speedy trial issue in his motion and at the

hearing. We also find that he failed to bring the motion to the court’s attention or even

ask for a trial setting at three hearings subsequent to filing his motion. Finally, we find

that he was only seeking a dismissal of the charges against him instead of an actual




Gullatt v. State                                                                    Page 21
speedy trial.4

         On this issue, we conclude that appellant failed to assert the right in any

meaningful way until just a few weeks before the trial. But, because he did assert it, we

will weigh it against the State. However, because he failed to bring it to the court’s

attention despite numerous opportunities to do so, we weigh it against the State only in

the weakest possible way.

PREJUDICE BY DELAY

         Next, we come to “prejudice” which is the final Barker factor. Appellant argues

that he was subject to pre-trial incarceration, suffered general anxiety, lost his job, and

his efforts at doing legal research were hampered.5 Based upon the record, he clearly

was subject to these effects of pre-trial incarceration.

         However, the crux of appellant’s prejudice argument is that the pre-trial delay

caused him to be unable to locate a material witness, Officer Sylvia Garcia.

         In showing prejudice based upon a missing witness, the accused must show

three things: 1) the witness was unavailable at trial, 2) the witness’ testimony would

have been relevant and material and 3) the defendant exercised due diligence in

attempting to locate the witness. Phipps v. State, 630 S.W.2d 942, 947 (Tex. Crim. App.

1982).


4 Seeking a dismissal, rather than a trial date, is a factor which weakens an accused’s claim that he was
deprived his constitutionally protected right to a speedy trial. Cantu v. State, 253 S.W.3d 273, 283 (Tex.
Crim. App. 2008) (“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.”).

5The record indicates that appellant was given special access to the law materials in the jail library
because he was serving as his own attorney. When his cell was put on lockdown for a rules violation, he
was offered his own cell with access to his legal materials. He declined the offer.

Gullatt v. State                                                                                  Page 22
        Officer Garcia did not testify at trial. At the motion for new trial, it became

apparent that she had left the police department, moved from the area, and was not

readily findable. Although appellant argues Garcia was the “lead officer” in the case,

she clearly was not. Officer Chamblee was. Garcia was supervising Chamblee that

night and acted in a secondary role. She was also not involved in key aspects of the

events, including when Chamblee found the drugs and searched the vehicle after his

previous prisoner. The record also reflects that the appellant failed to make any effort

to locate the witness. Appellant did not subpoena her, did not look for her, and did not

request an investigator to look for her.

        Although appellant was incarcerated and undoubtedly suffered some effects

from that, he has failed to show that the delay in his case coming to trial caused him not

to be able to call a witness. Appellant has simply failed to show prejudice that would

justify dismissing the case.

        Looking at all four Barker factors, we find the 15½ months delay was sufficient to

trigger our analysis. We also find that the reason for the delay should not count against

the State, that appellant’s assertion of the right was minimal, and that he has failed to

show that he was prejudiced by the pre-trial delay. The trial court properly denied his

request that the case be dismissed. Appellant’s eighth issue is overruled.




Gullatt v. State                                                                   Page 23
                                          CONCLUSION

        Having overruled all of appellant’s issues, the judgment of the trial court is

affirmed.


                                               KEN ANDERSON
                                               Judge

Before Chief Justice Gray,
       Justice Scoggins, and
       Judge Anderson6
Affirmed
Opinion delivered and filed August 24, 2011
Publish
[CRPM]




6Ken Anderson, Judge of the 277th District Court of Williamson County, sitting by assignment of the
Chief Justice of the Texas Supreme Court pursuant to Section 74.003(h) of the Government Code. See TEX.
GOV’T CODE ANN. § 74.003(h) (West 2005).

Gullatt v. State                                                                               Page 24
