                                                                                     ACCEPTED
                                                                                 14-15-00045-CR
                                                                 FOURTEENTH COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                            8/25/2015 5:10:45 PM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                       No. 14-15-00045-CR
                               In the
                      COURT OF APPEALS              FILED IN
                                             14th COURT OF APPEALS
                              For the           HOUSTON, TEXAS
             FOURTEENTH SUPREME JUDICIAL DISTRICT
                                             8/25/2015 5:10:45 PM
                            At Houston       CHRISTOPHER A. PRINE
                                                                 Clerk

                      Appeal in No. 11-dcr-056418
                       th
                434 District Court of Fort Bend County, Texas


                            RENE RIVERA HERNANDEZ
                                    Appellant
                                       v
                              THE STATE OF TEXAS
                                    Appellee


                            STATE’S APPELLATE BRIEF

Counsel for Appellee                   JOHN F. HEALEY
                                       DISTRICT ATTORNEY
                                       268TH JUDICIAL DISTRICT
                                       FORT BEND COUNTY, TEXAS


                                       JOHN J. HARRITY, III
                                       ASSISTANT DISTRICT ATTORNEY
                                       FORT BEND COUNTY, TEXAS
                                       SBN # 09133100
                                       John.Harrity@fortbendcountytx.gov
                                       309 South Fourth Street, 2nd floor
                                       Richmond, Texas 77469
                                       281-341-4460 (Tel.)
                                       281-238-3340 (Fax)
                        IDENTIFICATION OF PARTIES

       Pursuant to Tex. R. App. P. 38.1, a complete list of the names of all interested
parties is provided below so the members of this Honorable Court may at once
determine whether they are disqualified to serve or should recuse themselves from
participating in the decision of the case.

Appellant:                                           Appellee:
RENE RIVERA HERNANDEZ                                THE STATE OF TEXAS

Counsel for Appellee/State:                          Address(es):
JOHN F. HEALEY, JR.                                  Fort Bend County
District Attorney                                    District Attorney’s Office
of Fort Bend County, Texas                           301 Jackson Street, Rm 101
268TH Judicial District                              Richmond, Texas 77469

MARK LAFORGE                                         (Same)
Assistant District Attorney
Fort Bend County, Tx.
(Trial)

JOHN J. HARRITY, III                                 (Same)
Assistant District Attorney
Ft. Bend County, Tx.
(Appeal Only)

Counsel for Appellant:                               Address(es):
Toni L. Sharretts                                    11054 North Hidden Oaks
(Trial and Appeal)                                   Conroe, Texas 77384
iceattorney@aol.com


Trial Judge:
The Hon. James H. Shoemake
434th District Court of Fort Bend County, Texas


                                          ii
                                     TABLE OF CONTENTS

SECTION                                                                                              PAGE


IDENTIFICATION OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

REPLY TO APPELLANT’S FIRST POINT OF ERROR. . . . . . . . . . . . . . . . . . . . 2

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5




                                                     iii
                                      INDEX OF AUTHORITIES

CASES                                                                                                 PAGE


Amador v. State, 221 S.W.3d 666, 673, 677 (Tex. Crim. App. 2007). . . . . . . . . 2, 3

Barker v. Wingo, 407 U.S. 514 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Henson v. State, 407 S.W.3d, 764, 768-69 (Tex. Crim. App. 2013), cert denied, 134
S.Ct. 934 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Newman v. State, 331 S.W.3d 447, 449 n. 5 (Tex. Crim. App. 2011). . . . . . . . . 2, 3

Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004). . . . . . . . . . . . . 2

STATUTES AND RULES


Tex. R. App. P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii




                    STATEMENT REGARDING ORAL ARGUMENT

         The State does not believe oral argument is necessary in the present case.

However, should the Court decide that it wants to hear oral argument in this case, the

State would request that it be allowed to present oral argument.




                                                           iv
                        No. 14-15-00045-CR
                                In the
                       COURT OF APPEALS
                               For the
              FOURTEENTH SUPREME JUDICIAL DISTRICT
                             At Houston

                        Appeal in No. 11-dcr-056418
                     th
                  434 District Court of Fort Bend County, Texas


                          RENE RIVERA HERNANDEZ
                                  Appellant
                                     v
                            THE STATE OF TEXAS
                                  Appellee

TO THE HONORABLE COURT OF APPEALS:
               STATEMENT OF THE CASE

      On November 18, 2014, Appellant’s case was called for trial. (C.R. 100). A

jury found Appellant guilty of the offense of aggravated assault with a deadly weapon

and the same jury assessed his punishment at confinement in the Institutional

Division of the Texas Department of Criminal Justice for 10 (Ten) years with a

recommendation that said sentence be suspended, and a fine of $10,000. (C.R. 101).




                                          v
                            STATEMENT OF FACTS

      The State challenges all factual assertions in the Appellant’s brief pursuant to

Tex. R. App. P. 38 and submits its account of the facts as follows and within its reply

to Appellant’s points of error.

                       SUMMARY OF THE ARGUMENT

      Appellant failed to preserve his sole issue on appeal. Appellant’s

complaints entitle him to no relief on appeal.




                                          1
           REPLY TO APPELLANT’S FIRST POINT OF ERROR

      In his sole issue, appellant argues that the State violated his constitutional right

to a speedy trial when tried almost six years after formal accusation. (App. Br. p. 2).

Appellant makes no argument or citation to the reporter’s record where this issue was

ever raised at trial. The clerk’s record on appeal including the docket sheet make no

reference to any motion indicating that appellant’s complaint on appeal was ever

raised at trial. On appeal, the reviewing court “can assess only the evidence that is

actually in the appellate record or “was before the trial court at the time of the trial

court’s ruling.” Amador v. State, 221 S.W.3d 666, 673, 677 (Tex. Crim. App. 2007).

Although the rules of appellate procedure may be used to supplement the record with

an omitted item, it “cannot be used to create new evidence.” Whitehead v. State, 130

S.W.3d 866, 872 (Tex. Crim. App. 2004).

      In order to review a speedy-trial claim on appeal, the appellate court evaluates

and weighs a non-exhaustive list of factors, including the length of the delay, the

reason for the delay, the defendant’s assertion of his speedy-trial right, and the

prejudice from the alleged delay. See Newman v. State, 331 S.W.3d 447, 449 n. 5

(Tex. Crim. App. 2011)(listing the factors set out in Barker v. Wingo, 407 U.S. 514

(1972). Without a record of Appellant’s motion for speedy-trial, or the record of any

                                           2
hearing had on the same, the reviewing court cannot evaluate the necessary factors,

or whether Appellant ever filed a motion, secured a ruling or was in any way

prejudiced by a violation of his right to a speedy-trial.

      Appellant has failed to present a record demonstrating that he ever filed a

motion for speedy-trial, much less denied his right to a speedy trial. See Newman,

331 S.W.3d at 450. Appellant bears the burden of developing and bringing forth a

record on appeal to show that the trial court erred. Amador, 221 S.W.3d at 675. Even

if Appellant did present a motion for speedy-trial and loses at the trial level, he still

bears the burden of bringing forth the record as a reviewing court presumes that the

trial court resolved any disputed fact issues in the State’s favor.

      Further, the Court of Criminal Appeals held in Henson v. State, 407 S.W.3d,

764, 768-69 (Tex. Crim. App. 2013), cert denied, 134 S.Ct. 934 (2014) that a

defendant must raise a speedy-trial claim in the trial court for the issue to be

preserved for appeal. Appellant has failed to present a record that he ever demanded

a speedy-trial at the trial court level. Appellant has failed to preserve his sole issue

on appeal, that he was denied his right to a speedy-trial for appellate review.

Appellant’s sole point of error should be overruled.




                                           3
                             PRAYER FOR RELIEF

    WHEREFORE, PREMISES CONSIDERED, it is respectfully submitted that

all things are regular and that this Court find no reversible error in Appellant’s

conviction, affirm the judgment and sentence in all things, and order execution of the

judgment and sentence in accordance with the opinion of the Court.


                                       Respectfully submitted,
                                       John F. Healey, Jr.
                                       District Attorney, Fort Bend County
                                       268th Judicial District



                                        /s/ John J. Harrity, III
                                       John J. Harrity, III
                                       Assistant District Attorney
                                       Fort Bend County, Texas
                                       SBN # 09133100
                                       John.Harrity@fortbendcountytx.gov
                                       301 Jackson Street, Room 101
                                       Richmond, Texas 77469
                                       281-341-4460 (office)
                                       281-341-8638 (fax)




                                          4
                       CERTIFICATE OF COMPLIANCE

      This is to certify that in accordance with Texas Rule of Appellate Procedure

9.4(i)(3), this State’s Appellate Brief has been reviewed by the word count function

in WordPerfect, and contains 1218 words in its entirety.



                                                /s/ John J. Harrity, III
                                                John J. Harrity, III




                          CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing instrument has

been forwarded to Appellant’s attorney of record, Toni L. Sharretts, 11054 North

Hidden Oaks, Conroe, Texas 77384 or via email at iceattorney@aol.com, or via e-

filing on the date of the filing of the original with the Clerk of this Court.


                                                /s/ John J. Harrity, III
                                                John J. Harrity, III




                                           5
