                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00172-CR


RICHARD FREDRICK DENSTITT                                          APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
                    TRIAL COURT NO. 2011-0174M-CR

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                        MEMORANDUM OPINION 1

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      A jury convicted Appellant Richard Fredrick Denstitt of aggravated sexual

assault of a disabled person and assessed his punishment at sixty years’

confinement. The trial court sentenced him accordingly.

      Appellant brings three issues on appeal, challenging the sufficiency of the

evidence that Complainant was a disabled person and arguing that the trial court

      1
      See Tex. R. App. P. 47.4.
reversibly erred by denying him a speedy trial under both federal and state

constitutional guarantees.    Because the evidence is sufficient to support the

jury’s verdict and because the record reflects no denial of Appellant’s right to a

speedy trial, we affirm the trial court’s judgment.

Sufficiency of the Evidence of Disability

      In Appellant’s first issue, he contends that the evidence is insufficient to

prove that Complainant was “disabled” under the statute. In our due-process

review of the sufficiency of the evidence to support a conviction, we view all of

the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. 2

      The term “disabled individual” as used in the aggravated sexual assault

statute, section 22.021 of the penal code, has the meaning assigned by section

22.04(c)(3) of the penal code. 3 Section 22.04(c)(3) currently defines a disabled

individual as “a person older than 14 years of age who by reason of age or

physical or mental disease, defect, or injury is substantially unable to protect

himself from harm or to provide food, shelter, or medical care for himself.” 4

      2
      Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
      3
         Tex. Penal Code Ann. §§ 22.021(a)(2)(C), (b)(2), 22.04(c)(3) (West Supp.
2014).
      4
         Id. § 22.04(c)(3).



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        A forensic interviewer who had interviewed Complainant testified that she

believed Complainant’s cognitive level was between six and ten years old.

Although the forensic interviewer had reviewed no documents showing

Complainant’s mental age, she surmised it based on the way Complainant

spelled her name, her fascination with various items in the interview room, her

child-like use of terminology describing adult genitals (the term she used to

describe the male genitalia was “peanuts,” and her term for the female private

part was “a little girl”), and her mental processing of questions “very literally” as a

child would do. The forensic interviewer testified that she found Complainant to

be a “mentally disabled individual” who was dependent upon other people to

make all important decisions for her and who would not be able to appraise the

nature of or understand sexual acts.

        Complainant testified that she was twenty-six years old, lived in a group

home in Houston, had graduated from high school, and was planning to go to

college to become a dog groomer so she could groom her family’s dogs for

free.   She testified that she had seizures on occasion.          At the time of the

assault, she had lived alone in a trailer park, and her grandfather lived across

the street; he had died before the trial.        She admitted that she had had

voluntary sexual intercourse with Appellant more than once during their first

evening together and that she took birth control pills. Her grandfather later told

her that he did not like Appellant and to stay away from Appellant. She testified

that when she had told Appellant that she could not have sex with him anymore


                                          3
because her grandfather did not like him, they had spent hours having sex

anyway, although she did not want to.

      Complainant’s uncle testified that he had known her all her life and that

she had been disabled and unable to live independently her entire life. He also

testified that Complainant had been declared mentally disabled by the Social

Security Administration and was receiving disability payments.

      The jury saw a video recording of the forensic interview and observed

and listened to Complainant testify at trial.

      Applying the appropriate standard of review, we hold that there was

sufficient evidence from which a jury could have found beyond a reasonable

doubt that Complainant was a disabled person as contemplated by section

22.04(c)(3). We overrule Appellant’s first issue.

Speedy Trial

      In his second and third issues, Appellant contends that the trial court erred

by denying his right to a speedy trial under the Sixth Amendment to the United

States Constitution and Article I, Section 10 of the Texas Constitution. Nineteen

months before trial and while represented by counsel, Appellant filed a pro se

Motion to Dismiss (Speedy Trial Motion). The trial court never heard or ruled

upon said motion.

      In 2013, the Texas Court of Criminal Appeals clarified that the right to a

speedy trial must be preserved:




                                          4
        The preservation requirement is that “(u)nless a
litigant . . . moves to avail himself of a procedural benefit . . . no such
benefit inures . . . . Because the judge has no independent duty in
this regard, his failure . . . isn’t error about which complaint might
later be made on appeal.” In order to preserve error for appellate
review, a defendant must make a timely request, objection, or
motion in the trial court (regardless of whether or not the error
complained of is constitutional). This rule applies to all but the most
fundamental rights. The only exceptions are two relatively small
categories of error: rights which are waivable only and denials of
absolute, systemic requirements. Such errors may be raised for the
first time on appeal. Neither this court nor the Supreme Court has
ever clearly held that the right to a speedy trial requires preservation
or cannot require preservation.

        In Barker, the Supreme Court distinguished the speedy-trial
right from typical fundamental rights, as to which the State bears the
entire burden of proving that the defendant made a knowing and
voluntary waiver. “We do not depart from our holdings in other
cases concerning the waiver of fundamental rights, in which we have
placed the entire responsibility on the prosecution to show that the
claimed waiver was knowingly and voluntarily made. Such cases
have involved rights which must be exercised or waived at a specific
time or under clearly identifiable circumstances . . . .”

       Contrary to the appellant’s assertion, Barker did not reject the
notion that a defendant may be required to preserve a speedy-trial
claim. It stated that the defendant does bear some responsibility for
asserting the right. What Barker actually rejected was a very
specific “demand-waiver” rule: one in which a defendant waives his
right to a speedy trial as to any period before he demanded that his
right be honored.

      Just as Barker does not specifically address the issue, our
own case law is far from consistent. We have never held that a
speedy-trial right is waivable-only or systemic in nature. However,
before Marin, we delivered many opinions that ignored the issue of
preservation entirely and, in some cases, held that the defendant
had not waived his rights. We did not explain if or why the right was
waivable only rather than subject to the more typical rules of
preservation. Further complicating matters, in recent cases, we
have held that the speedy-trial right must be preserved.



                                    5
Unfortunately, these recent opinions do not offer any justification for
our change of course nor do they cite authority.

       We are persuaded that the preservation requirements do
apply to speedy-trial claims for several reasons. The vast majority of
errors must be preserved. It is informative to look at the few rights
that warrant an exception to this rule. Waivable-only rights include
the right to assistance of counsel, trial by jury, and a statutorily
mandated right that appointed counsel have ten days before trial to
prepare.       Absolute, systemic requirements include personal
jurisdiction, subject-matter jurisdiction, and a penal statute’s being in
compliance with the separation of powers section of our state
constitution.

        One notable difference between these rights and the right to a
speedy trial is that the other rights do not have so great an incentive
for the defendant to sleep on his rights. As has been discussed, the
deprivation of a speedy trial often can benefit the appellant. Without
a requirement of preservation, a defendant would have great
incentive not to insist upon a speedy trial and then to argue for the
first time on appeal that the prosecution should be dismissed
because of delay. The requirement of preservation forces the
defendant to pick one strategy. He can either fail to insist upon a
speedy trial and possibly reap benefits caused by delay, or he can
insist on a prompt trial, and if it is not granted, argue for a dismissal.
He may not do both.

      Other policies are persuasive as well. If the appellant brings
his complaint to the trial court first, the trial court can grant the
appropriate remedy before the expense and other burdens of a trial
(and an appeal) have been incurred.

      Further, a requirement of preservation allows the trial court to
develop the record sufficiently for a Barker analysis. At least two of
the Barker factors (the reason for delay and the prejudice to the
accused) are fact-specific inquiries and may not be readily apparent
from the trial record. A requirement that the appellant assert his
complaint at the trial level enables the court to hold a hearing and
develop this record so that the appellate courts may more accurately
assess the claim.




                                    6
            Our conclusion is strengthened by the fact that every court of
      appeals to consider the issue has upheld a preservation
      requirement. 5

      In the case now before this court, Appellant’s pro se motion is styled

“Motion to Dismiss Speedy Trial.” Appellant never requested a hearing on his

motion and never presented his motion to the trial court. Nor did he request a

trial. Rather his motion appears to complain of tampering with official documents

and conspiracy and to request dismissal of his case for failure to conduct a

speedy trial.       We hold that Appellant has not satisfied the preservation

requirements enunciated in Henson. 6 We therefore overrule his second and third

issues.

Conclusion

      Having overruled Appellant’s three issues, we affirm the trial court’s

judgment.




      5
        Henson v. State, 407 S.W.3d 764, 767–69 (Tex. Crim. App. 2013)
(citations omitted), cert. denied, 134 S. Ct. 934 (2014).
      6
          See id.



                                        7
                                       /s/ Lee Ann Dauphinot
                                       LEE ANN DAUPHINOT
                                       JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

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

DELIVERED: July 2, 2015




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