                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00531-CR


DAVID EVERETT STEVENS                                             APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
                      TRIAL COURT NO. 52,590-C

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                        MEMORANDUM OPINION1

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      Appellant David Everett Stevens was tried by jury and found guilty of

criminal solicitation of capital murder for remuneration.   The jury assessed

punishment at seventy-five years’ confinement. He brings a single issue forward

on appeal: Was he deprived of his Sixth Amendment right to a speedy trial? We

affirm the judgment.


      1
       See Tex. R. App. P. 47.4.
                                     FACTS

      In March 2010, informer Juan Gutierrez told Wichita Falls police

investigators that Appellant had given him a $200.00 deposit and promised

another $1,800.00 if Gutierrez would kill Matthew McCann, who was living with

Appellant’s estranged wife.   On March 15, 2010, Gutierrez, cooperating with

Wichita Falls police and the intended victim, McCann, telephoned Appellant and

told him that he was going to kill McCann that afternoon and, as proof of the

deed, that he would bring McCann’s wallet and cell phone to Appellant at the

Love’s Truck stop at 1124 Central Freeway in Wichita Falls. Later that afternoon,

as arranged, Gutierrez arrived at the truck stop in McCann’s vehicle, told

Appellant that he had killed McCann, and handed McCann’s wallet and cell

phone to Appellant.    After Appellant handed Gutierrez eighteen one-hundred

dollar bills, the sting was made, and Appellant was arrested by Wichita Falls

police officers.

      From the abbreviated record before us, it appears that Appellant’s bond

was initially set at $2.5 million. Bond reduction motions were filed in March and

April 2010, and a writ of habeas corpus was filed in August 2010, but it does not

appear that he was released as a result. The record does show that he was

released from custody on April 19, 2012, but it is not clear how. Appellant’s bond

was then raised to $10 million on September 18, 2012, and curiously, he was

indicted the following day—September 19, 2012.




                                        2
       The essence of Appellant’s argument is that he spent 790 days in jail from

his arrest to his sentencing in violation of his right to a speedy trial.

                                    DISCUSSION

       The Sixth Amendment to the United States Constitution provides in part:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial . . . .” U.S. Const. amend. VI. Nevertheless, as the State asserts, we

must give short shrift to Appellant’s right to a speedy trial because he failed to

raise such a claim in the trial court and thus did not preserve the issue for

appellate review. Henson v. State, 407 S.W.3d 764, 769 (Tex. Crim. App. 2013),

cert. denied, 134 S. Ct. 934 (2014). In Henson, the court of criminal appeals

unambiguously held that a defendant must, as per Texas Rule of Appellate

Procedure 33.1, first preserve error for appellate review through a timely

objection in the trial court before he is entitled to have considered the four-prong

balancing test created in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972),

to determine whether his constitutional right to a speedy trial has been violated.

Henson, 407 S.W.3d at 769.

       Appellant concedes that he did not object on Sixth Amendment grounds;

thus, we2 must overrule his only issue on appeal and affirm the judgment of the

trial court.


       2
      Writing only for myself, I believe that Judge Myers’s dissent in Henson is
the more proper guidepost we should follow. See Henson, 407 S.W.3d at 769–
770 (Myers, J., dissenting).


                                            3
                                            /s/ David Wellington Chew
                                            DAVID WELLINGTON CHEW
                                            SENIOR JUSTICE


PANEL: LIVINGSTON, C.J.; GABRIEL, J.; and DAVID WELLINGTON CHEW
(Senior Justice, Retired, Sitting by Assignment).

GABRIEL, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 18, 2014




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