             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. PD-0040-10


                             JOHN LANDON NEWMAN, Appellant

                                                   v.

                                     THE STATE OF TEXAS

                ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FOURTEENTH COURT OF APPEALS
                                HARRIS COUNTY

    HERVEY , J., delivered the opinion of the Court in which KELLER , P.J., MEYERS,
WOMACK , JOHNSON , KEASLER and COCHRAN , JJ., joined. PRICE, J., dissented.

                                           OPINION

        Based on federal constitutional speedy-trial grounds, appellant filed an unsworn motion to

dismiss his intoxication-assault case. Appellant claimed in this unsworn motion that his Sixth

Amendment federal constitutional right to a speedy trial had been violated because of an

approximately eight-year delay since the filing of his intoxication-assault indictment.1 The trial court

        1

        The analysis of appellant’s speedy-trial claim would require an examination of the four
Barker v. Wingo factors: 1) length of delay, 2) reasons for the delay, 3) the defendant’s assertion of
his right to a speedy trial, and 4) prejudice. See Barker v. Wingo, 407 U.S. 514, 530 (1972).
                                                                                             Newman-2

signed an order denying appellant’s motion to dismiss.2 This order indicates that the trial court

denied this motion after a hearing. There is no reporter’s record of this hearing in the appellate

record.

          In appellant’s direct appeal, the court of appeals declined to consider any factual assertions

contained in appellant’s unsworn motion to dismiss.3 After also noting the absence of a reporter’s

record from any hearing in the trial court on this motion and after cautioning “practitioners regarding

the importance of developing a record,” the court of appeals nevertheless decided that the “sparse”

record that appellant presented was sufficient for it to consider the Barker factors even though this

“sparse” record is silent on the second and fourth Barker factors.4 And, in overturning the trial

court’s ruling denying appellant’s unsworn motion to dismiss, the court of appeals also decided that

this “sparse” record was sufficient to show that appellant’s speedy-trial right was violated.5 Having

exercised our discretionary authority to review this decision,6 we decide, as a matter of state law, that


          2

       Appellant subsequently pled guilty to the intoxication-assault indictment pursuant to a plea-
bargain that reserved his right to appeal the trial court’s ruling denying his motion to dismiss.
          3

       See Newman v. State, No. 14-08-00568-CR, slip order (Tex.App.–Houston [14th Dist.],
October 8, 2009) (not designated for publication) (denying appellant’s motion to supplement record
with appellant’s affidavit swearing to the truth of the allegations contained in his motion to dismiss).
          4

        See Newman v. State, 303 S.W.3d 10, 13 (Tex.App.–Houston [14th dist.] 2009) (deciding that
the “sparse” record, consisting of “either certified or file-stamped copies from the court’s file or the
District Clerk’s office,” was sufficient for the court of appeals to consider appellant’s speedy trial
claim “despite appellant’s failure to present testimonial evidence supporting this appeal”).
          5

       See Newman, 303 S.W.3d at 13-16 (deciding that appellant’s speedy-trial right was violated
based on examination of Barker factors).
          6

          The grounds upon which we granted discretionary review state:
                                                                                            Newman-3

appellant failed to sustain his burden to present a sufficient record showing a violation of his federal

constitutional right to a speedy trial.

        Initially, we recognize the general rule that “an unsworn motion does not, by itself, present

evidence upon which relief can be granted.” See Whitehead v. State, 130 S.W.3d 866, 873

(Tex.Cr.App. 2004). We further note that the Legislature has not modified this rule with respect to

motions to dismiss for speedy-trial violations. See id. Therefore, the court of appeals would have

erred to consider the factual assertions in appellant’s unsworn speedy-trial motion in resolving his

speedy trial claim.

        The State argues that “the record in this case is not properly developed in order to allow the

court of appeals or this Court to rule on the merits of appellant’s speedy-trial claim” because

appellant failed to present a record of any hearing that may have occurred on his motion to dismiss

and, thus, we cannot know what evidence or arguments were presented at any such hearing. The

record that appellant presented indicates that he filed his motion to dismiss his intoxication-assault

case on June 9, 2008. On June 23, 2008, appellant filed a motion entitled, “Motion For Court

Reporter To Record Voir Dire, Opening & Closing Arguments.” The body of this motion indicates

that appellant requested the trial court “to instruct the Official Court Reporter to take down in

shorthand or by any other method of recording all of the following: all pretrial hearings, the entire

voir dire, all opening statements, testimony of all witnesses, all objections and the court’s ruling



        The Fourteenth Court of Appeals erred in ruling on the merits of the appellant’s
        speedy trial claim, based solely upon the appellant’s unsworn speedy trial motion and
        the documents attached to that motion.

        The Fourteenth Court of Appeals erred in holding that a speedy trial motion is “self-
        proving.”
                                                                                            Newman-4

thereon, all bench conferences, all communications between the court and jury, final arguments, &

any testimony or objections made outside the presence of the jury.” On the same day, the trial court

signed an order granting the “Motion for Court Report [sic] to Record Voir Dire, Opening & Closing

Statements.”

        On June 26, 2008, the trial court signed the order denying appellant’s motion to dismiss.

This order indicates that this motion was denied after a hearing. The trial court’s docket sheet also

seems to indicate that this motion was denied after some type of a hearing as the docket sheet

indicates that the State, appellant with counsel, and possibly the court reporter were present in the

trial court on June 26, 2008. The record appellant presented, however, contains no reporter’s record

of any hearing that may have occurred on June 26, 2008. This record also does not show whether

appellant objected in the event that the court reporter was not present to transcribe the June 26, 2008

hearing.7 There also is no designation of appellate record indicating that appellant ever requested

the court reporter to prepare a transcription of the June 26, 2008 hearing. See TEX . R. APP . P.

34.6(b)(1) (“At or before the time for perfecting the appeal, the appellant must request in writing that

the official reporter prepare the reporter’s record.”). Nor has appellant attempted to supplement the

record with a reporter’s record of a June 26, 2008 hearing. See TEX . R. APP . P. 34.6(d).

        We decide that appellant has failed to present a record demonstrating that the trial court’s

decision should be overturned. With appellant having had a hearing, having lost in the trial court

on his speedy-trial claim, and then having presented no record at all of a June 26, 2008 hearing on



        7

      We further note that “[w]hile the record may be supplemented under the appellate rules if
something has been omitted, the supplementation rules cannot be used to create new evidence.” See
Whitehead, 130 S.W.3d at 872 (footnote omitted).
                                                                                            Newman-5

this claim, appellant should also have lost on direct appeal. See Amador v. State, 221 S.W.3d 666,

675 (Tex.Cr.App. 2007) (“It was, however, appellant’s burden to bring forward a record on appeal

sufficient to show that the trial court erred in his ruling on the motion to suppress.”); Word v. State,

206 S.W.3d 646, 651-52 (Tex.Cr.App. 2006) (“It is usually the appealing party’s burden to present

a record showing properly preserved, reversible error.”); Zamorano v. State, 84 S.W.3d 643, 648

(Tex.Cr.App. 2002) (when a defendant loses on a speedy-trial motion, the appellate court presumes

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

        The judgment of the court of appeals is reversed, and the judgment of the trial court is

affirmed.



                                                                        Hervey, J.



Delivered: February 9, 2011
Publish
