Opinion issued February 20, 2014.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-12-00198-CR
                           ———————————
                  SAMUEL DENNY ROBINSON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 351st District Court
                          Harris County, Texas
                       Trial Court Case No. 976148



                       MEMORANDUM OPINION

      A jury found Samuel Denny Robinson guilty of murder and assessed his

punishment at sixty-five years’ confinement. In two appellate issues, Robinson

contends that the trial court abused its discretion: (1) by denying his motion to
dismiss the indictment based on speedy trial grounds, and (2) by denying his

request to declare a defense witness “unavailable” and admit her testimony from

his first trial. We affirm.

                                 Factual Background

        On January 31, 2004, Jack Harris and his brother Jarvis Harris were standing

outside of a convenience store waiting for friends when a man in a bright blue

jacket approached Jack. 1 Jack and the man in blue, who Jack referred to as “Bo”

and was later identified as Robinson, began to argue. Jarvis, who did not know

“Bo,” became uncomfortable and unsuccessfully attempted to extract his brother

from the situation. According to Jarvis, “Bo” pulled out a pistol, shot Jack once in

the head, and then fled the scene. The store’s surveillance camera recorded Jack

and “Bo” greeting each other but the shooting occurred outside the camera’s range.

        After Jarvis told Investigator Wayne Wendel that Jack had referred to the

shooter as “Bo,” Wendel learned that Robinson, who lived in an apartment

complex across the street from the convenience store, had previously used the alias

“Bo.”     Wendel constructed a photo array containing Robinson’s photo and




1
        For the sake of clarity, Jack and Jarvis Harris will be referred to by their first
        names.
                                            2
presented it to Jarvis on February 2, 2004. 2 Jarvis positively identified Robinson

from the photo array as the person who shot and killed Jack.

      That same day, Robinson was charged with murder based on Jarvis’ photo

identification. After Robinson was charged, Investigator Wendel unsuccessfully

attempted to locate Robinson at his last known address. Deputy Dennis Brown

testified that the Harris County Sheriff’s Office (HCSO) received Robinson’s

arrest warrant on May 2, 2004, and entered the warrant into the National Crime

Information Center (NCIC).        According to Deputy Brown, the HCSO made

thirteen subsequent attempts to execute the arrest warrant before Robinson was

arrested in Mississippi and transported to the Harris County jail in March 2009 to

await trial for Jack’s murder. Among other methods, the HCSO searched for a

current address for Robinson using multiple databases—such as driver’s license

inquiries—and on December 27, 2004, the HCSO placed Robinson on their “ten

most wanted” list and posted his photograph on their website.

      The HCSO also periodically received information from other law

enforcement sources regarding Robinson’s location. Deputy Brown testified that

on May 6, 2004, the HCSO learned that Robinson was also wanted in Amite

County, Mississippi regarding a recent shooting, but they did not have any

2
      Robinson’s brief incorrectly asserts that Jarvis did not identify him from the photo
      array until February 22, 2004—three weeks after the shooting. The photo array is
      signed by Jarvis and dated February 2, 2004, and Wendel testified that he
      presented the photo array to Jarvis on February 2.
                                           3
additional information regarding Robinson’s whereabouts. On July 18, 2005, U.S.

Marshall Antonio Pittman informed the HCSO that he had received an anonymous

tip indicating that Robinson had been arrested and released in Jackson, Mississippi

under the alias “Aurilous Collins,” along with a different date of birth.

      On March 21, 2006, the U.S. Marshal’s Service informed the HCSO that

Robinson had been arrested on the Harris County murder warrant and was in

custody in Hinds County, Mississippi. That day the HCSO placed a detainer on

Robinson with the U.S. Marshal’s Service, and on May 3, 2006 they mailed a

certified copy of the warrant along with Robinson’s identification to Hinds County.

Brown testified that once a detainer is placed on a defendant, the HCSO normally

waits for that agency to notify them when the defendant is finished with his local

charges and ready for pickup.

      Hinds County never notified the HCSO that Robinson was ready for pickup,

and on February 6, 2009, Amite County, Mississippi informed the HCSO that

Robinson had been released and that they were currently looking for him. On

February 18, 2009, the HCSO was advised that Robinson was in custody in Hinds

County and ready for pickup. The HCSO arranged to get Robinson and he arrived

at the Harris County jail on March 2, 2009.

      Robinson testified that he left Harris County at his mother’s urging after he

was acquitted on a felon in possession of a weapon charge in 2003. According to

                                          4
Robinson, he did not know that he was wanted for murder in Harris County until

he was arrested in March 2006 in Mississippi. Robinson testified that when he was

arrested on the Harris County murder warrant in March 2006, the police found

drugs at his residence and he was charged with cocaine possession.

      Robinson also testified that although he was arrested under his true name,

Hinds County gave him the name “Aurilous Collins” and a new social security

number, and told him that he “better answer to it.” Robinson testified that he

pleaded guilty to the cocaine possession charge on June 7, 2007 and he was

sentenced to two years’ confinement in the Mississippi Department of Corrections

(MDC). According to Robinson, he was given the name “Karmilous Cooper”

when he was sent to the MDC. Robinson also testified that he asked MDC

officials if he was wanted on the Harris County murder warrant when he was

released from prison in December 2007, and they informed him that he was not.

      On cross-examination, Robinson acknowledged that he was the person

referenced in State’s exhibit 1, the MDC “pen packet” admitted by the State

without objection.   Contrary to Robinson’s testimony, the pen packet, which

included Robinson’s indictment and his time-served report from Hinds County,

indicated that Robinson was arrested for the cocaine possession charge on August

15, 2005, released on bond that same day, and not booked again until March 22,

2006. The pen packet also indicates that Robinson was charged under the name

                                        5
“Karmilous Cooper,” along with an incorrect date of birth, incorrect social security

number, and a notation that he uses the alias “Aurilous Collins.” The State also

offered certified copies from the FBI Crime Justice Information Services Division

documenting the 124 NCIC inquiries made by various agencies looking for

Robinson from 2004 to 2009, including inquiries by the HCSO.

                  Procedural Background/Motion to Dismiss

      Arrested in Hinds County, Mississippi in February 2009 and subsequently

transported to the Harris County jail, Robinson arrived in Harris County on March

2, 2009. His trial was initially scheduled for March 30, 2009. After agreeing to

reset his case at least eleven times, Robinson filed a motion to dismiss on June 17,

2010, alleging a violation of his right to a speedy trial under the Sixth Amendment

of the United States Constitution, Article I, Section 10 of the Texas Constitution,

and Article 28.061 of the Texas Code of Criminal Procedure. After he filed the

motion to dismiss, Robinson’s case was taken off the trial docket and he agreed to

three additional resets of his case before his motion was heard. On November 11,

2010, the trial court heard and denied Robinson’s motion to dismiss the indictment

based on speedy trial grounds. After two unsuccessful attempts to seat a jury

beginning on November 30, 2010, Robinson’s first trial commenced on January

28, 2011—twenty-three months after he arrived at the Harris County Jail. During

Robinson’s first trial, Tracy Bailey testified that Robinson, who had grown up in


                                         6
Mississippi, lived in Harris County between 1999 and 2003. According to Bailey,

Robinson moved back to Mississippi in 2003 and lived with his mother for a few

months before moving in with Bailey. On February 2, 2011, Robinson’s first trial

resulted in a hung jury and ended in a mistrial.

       Robinson was retried a year later and a jury found him guilty. During

Robinson’s second trial in February 2012, Robinson’s mother and his aunt testified

that Bailey had moved to Washington State and neither woman knew how to reach

her.

                               Right to Speedy Trial

       In his first issue, Robinson contends that the trial court abused its discretion

by denying his motion to dismiss the indictment based on speedy trial grounds.

A.     Standard of Review

       We review a trial court’s speedy trial decision under a bifurcated standard of

review; an abuse of discretion for factual components and a de novo standard for

legal components. Cantu v. State, 253 S.W.3d 273, 281–82 (Tex. Crim. App.

2008); Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) (en banc).

In reviewing factual issues, we defer to a trial court’s resolution of “disputed facts”

and its right to draw “reasonable inferences” from those facts. Cantu, 253 S.W.3d

at 282. As trier of fact, a trial court is the sole judge of the credibility of the




                                           7
witnesses, and may disbelieve any evidence so long as there is a reasonable basis

for doing so. Id.

B.    Applicable Law

      The Sixth Amendment to the United States Constitution and Article one,

Section ten, of the Texas Constitution guarantee an accused the right to a speedy

trial. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; Cantu, 253 S.W.3d at 280

& n.16. Whether raised under the federal or state constitution, we analyze speedy

trial claims on an ad hoc basis by balancing four factors: (1) length of the delay;

(2) reason for the delay; (3) assertion of the right; and (4) prejudice to the accused.

Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2191–92 (1972); Zamorano,

84 S.W.3d at 648.      No single factor is necessary or sufficient to establish a

violation. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003); see also

Ex parte Perez, 398 S.W.3d 206, 217 (Tex. Crim. App. 2013). Rather, courts must

“engage in a difficult and sensitive balancing process” that takes into account the

parties’ overall conduct. Zamorano, 84 S.W.3d at 648; see also Ex parte Perez,

398 S.W.3d at 217. The factors are related, and we apply them “with common

sense and sensitivity to ensure that charges are dismissed only when the evidence

shows that a defendant’s actual and asserted interest in a speedy trial has been

infringed.”   Cantu, 253 S.W.3d at 281.          Review of the individual factors




                                          8
necessarily involves fact determinations and legal conclusions, but the balancing

test as a whole is a purely legal question. Id. at 282.

      While the State has the burden of justifying the length of delay, the

defendant has the burden of proving the assertion of the right and prejudice. Id. at

280. However, the defendant’s burden of proving a speedy-trial violation varies

inversely with the State’s degree of culpability and the length of the delay. Ex

parte Perez, 398 S.W.3d at 217 (citing Cantu, 253 S.W.3d at 280). “Thus, the

greater the State’s bad faith or official negligence and the longer its actions delay a

trial, the less a defendant must show actual prejudice or prove diligence in

asserting his right to a speedy trial.” Cantu, 253 S.W.3d at 280–81.

C.    Length of Delay

      The length of delay is the triggering mechanism for an analysis of the

remaining three Barker factors and is measured from the date the defendant is

arrested or formally accused. Barker, 407 U.S. at 530, 92 S. Ct. at 2192; Cantu,

253 S.W.3d at 280; see also Doggett v. United States, 505 U.S. 647, 652 n.1, 112

S. Ct. 2686, 2691 n.1 (1992) (speedy-trial analysis triggered by “presumptively

prejudicial” delay). Depending on the nature of the charges, a post-accusation

delay of eight months or more is presumptively prejudicial for purposes of the

length-of-delay factor. Zamorano, 84 S.W.3d at 649 n.26 (stating delay of eight

months or more is “presumptively prejudicial” and will trigger a speedy trial


                                           9
analysis). Here, Robinson was formally charged with Jack’s murder on February

2, 2004. He filed his motion to dismiss based on a speedy trial violation on June

17, 2010. The State concedes, and we agree, that this delay is “presumptively

prejudicial” and sufficiently lengthy to trigger a speedy trial analysis under Barker.

      Once the defendant has crossed the threshold of showing a presumptively

prejudicial delay, we must consider the length of the delay beyond the triggering

point because “the presumption that pretrial delay has prejudiced the accused

intensifies over time.” Zamorano, 84 S.W.3d at 649 (quoting Doggett, 505 U.S. at

652, 112 S. Ct. at 2691); see also Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim.

App. 2003) (time period that stretches well beyond bare minimum needed to

trigger examination of speedy trial claim weighs heavily against State). Here, five

years and one month elapsed between the time Robinson was charged with Jack’s

murder (February 2, 2004) and the time he arrived in Harris County jail to await

trial for the murder (March 2, 2009). An additional twenty-three months elapsed

before the commencement of Robinson’s first murder trial (January 28, 2011) and

it was another year before Robinson’s second and final murder trial.

      After returning to Harris County in March 2009, Robinson agreed to reset

his case at least eleven times before he filed his motion to dismiss on speedy trial

grounds on June 17, 2010, and he agreed to three additional resets before his

motion was heard on November 11, 2010. Robinson also agreed to reset his case

                                         10
at least six more times between his first and second trials. Agreed resets are

inconsistent with the assertion of a speedy trial right and the time covered by such

agreed resets is properly excluded from any speedy trial computations.           See

Celestine v. State, 356 S.W.3d 502, 507 (Tex. App.—Houston [14th Dist.] 2009,

no pet.) (stating agreed resets inconsistent with assertion of speedy trial right and

excluding time covered by agreed resets in computing length of delay); State v.

Kuri, 846 S.W.2d 459, 463 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d)

(same), overruled on other grounds by Johnson v. State, 954 S.W.2d 770 (Tex.

Crim. App. 1997) (same). Nevertheless, even after excluding the time covered by

agreed resets, the delay in this case still greatly exceeds the minimum period

needed to trigger an examination of Robinson’s speedy trial claim. As such, the

length of the delay in this case weighs against the State and in favor of finding a

violation of Robinson’s right to a speedy trial.

D.    Reasons for the Delay

      Upon a finding that a presumptively prejudicial delay has occurred, the State

bears the initial burden of justifying the delay. Cantu, 253 S.W.3d at 280–81;

Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994). Different weights

are assigned to different reasons for a delay. Zamorano, 84 S.W.3d at 649 (citing

Barker, 407 U.S. at 531, 92 S. Ct. at 2192). For example, a deliberate attempt to

delay a trial is weighed heavily against the State, while more neutral reasons such


                                          11
as negligence or overcrowded dockets are also weighed against the State, but less

heavily. Id. Robinson, who acknowledges that the reason for the delay in this case

falls under the second, more neutral category (i.e., negligence on the State’s part),

argues that the State was negligent based primarily upon the fact that the HCSO

failed to take any action to locate and return Robinson to Harris County between

March 21, 2006—when Robinson was arrested on the Harris County murder

warrant in Mississippi—and February 6, 2009—when Hinds County, Mississippi

law enforcement notified the HCSO that Robinson was available for transport. In

particular, Robinson argues that, although the State knew that he was in custody in

Mississippi in March 2006, the State failed to extradite him until three years later,

and instead, waited for Mississippi officials to inform them that Robinson was

available for transport to Texas.

      The State disputes that it was negligent and contends that its efforts to

apprehend Robinson were hindered by the fact that Robinson fled the jurisdiction

immediately after the murder, attempted to evade apprehension by residing with

friends and relatives in Mississippi and working as a day laborer on a cash-only

basis, and used unknown aliases when he was incarcerated on other criminal

charges in Mississippi. See Burgett v. State, 865 S.W.2d 594, 597 (Tex. App.—

Fort Worth 1993, pet. ref’d) (holding that accused cannot sustain speedy trial claim

when delay was result of evading apprehension) (citing Dickey v. Florida, 398

                                         12
U.S. 30, 48, 90 S. Ct. 1564, 1574 (1970) and United States v. Smith, 534 F.2d 74,

75–76 (5th Cir. 1976)).

      Here, Robinson testified that he was living in Mississippi at the time of the

murder, he did not know that he was wanted for murder until he was arrested in

March 2006 on the murder warrant and an unrelated cocaine possession charge,

and that although he was arrested under his true name, Hinds County gave him the

name “Aurilious Collins” and a new social security number, and told him that he

“better answer to it.”    Robinson also testified that he was given the name

“Karmilous Cooper” when he was sent to the MDC.

      The indictment and booking information contained in State’s exhibit one—

Robinson’s MDC pen packet—contradicts Robinson’s testimony regarding when

he was arrested on the cocaine possession charge and when he started using the

aliases Aurilous Collins and Karmilous Cooper.          Given these discrepancies

between Robinson’s testimony and the Mississippi pen packet that Robinson

acknowledged was his, as sole judge of a witness’ credibility, it was reasonable for

the jury to disbelieve Robinson’s testimony regarding when he relocated to

Mississippi and his use of aliases during that same time frame. Cantu, 253 S.W.3d

at 280. Robinson’s testimony that he was living with friends and relatives after he

returned to Mississippi and working as a day laborer on a cash-only basis further

support the jury’s reasonable belief that Robinson was purposefully evading

                                        13
apprehension on the murder charge.            Given Robinson’s attempts to evade

apprehension in Mississippi—including his use of aliases and false birthdates and

social security numbers—this factor weighs against Robinson. See Burgett, 865

S.W.2d at 597; see also Dickey, 398 U.S. at 48, 90 S. Ct. at 1574; Smith, 534 F.2d

at 75–76.

E.    Assertion of the Right to a Speedy Trial

      Robinson bears the burden of establishing the third Barker factor—i.e., that

he asserted his right to a speedy trial. Cantu, 253 S.W.3d at 280. When a

defendant is unaware of the charge or the warrant, we consider whether and how

the defendant asserted his speedy trial right once he became aware. See Doggett,

505 U.S. at 653–54; Barringer, 399 S.W.3d at 601; see also Cantu, 253 S.W.3d at

282–83 (“Whether and how a defendant asserts this right is closely related to the

other three factors because the strength of his efforts will be shaped by them.”).

The “defendant’s assertion of his speedy-trial right (or his failure to assert it) is

entitled to strong evidentiary weight in determining whether the defendant is being

deprived of the right.” Cantu, 253 S.W.3d at 283.

      A request that the trial court dismiss the charges based on a speedy trial

violation, rather than a request for a prompt trial setting, weakens the strength of a

speedy trial claim because it indicates a “desire to have no trial instead of a speedy

one.” Id. “If a defendant fails to first seek a speedy trial before seeking dismissal


                                         14
of the charges, he should provide cogent reasons for this failure.” Id. “Repeated

requests for a speedy trial weigh heavily in favor of the defendant, while the failure

to make such requests supports an inference that the defendant does not really want

a trial, he wants only a dismissal.” Id.

      Here, Robinson testified that he did not know that he was wanted for murder

in Harris County until he was arrested in Mississippi in March 2006. Without

making a demand for a speedy trial, Robinson filed a motion to dismiss on speedy

trial grounds on June 17, 2010, one day before his first trial was set to begin. By

this time, Robinson had already agreed to reset his case at least eleven times after

he arrived in Harris County in March 2009. See Celestine, 356 S.W.3d at 507

(stating agreed resets inconsistent with assertion of speedy trial right). As such, the

record reflects that, rather than a speedy trial, Robinson wanted no trial at all.

Cantu, 253 S.W.3d at 283. Accordingly, this factor weighs against Robinson. See

id. at 283–84; Prihoda v. State, 352 S.W.3d 796, 805 (Tex. App.—San Antonio

2011, pet. ref’d) (concluding filing of motion to dismiss three years after arrest and

on first scheduled day of trial weighed heavily against defendant).

F.    Prejudice to the Defendant Resulting from the Delay

      Robinson bears the burden of establishing the fourth Barker factor—i.e., that

he was prejudiced by the delay. See Cantu, 253 S.W.3d at 280. We assess any

possible prejudice to the defendant in light of the defendant’s interests that the


                                           15
speedy trial right was designed to protect: (1) to prevent oppressive pretrial

incarceration; (2) to minimize the accused’s anxiety and concern; and (3) to limit

the possibility that the accused’s defense will be impaired. 3 Barker, 407 U.S. at

532, 92 S. Ct. at 2193; Cantu, 253 S.W.3d at 280. Of these factors, “the most

serious is the last, because the inability of a defendant adequately to prepare his

case skews the fairness of the entire system.” Barker, 407 U.S. at 532, 92 S. Ct. at

2193; see also Cantu, 253 S.W.3d at 285; Dragoo, 96 S.W.3d at 315. Although

the defendant need not show actual prejudice, he has the burden to show that some

prejudice was caused by the delay. State v. Munoz, 991 S.W.2d 818, 826 (Tex.

Crim. App. 1999) (en banc); Jones, 168 S.W.3d at 349 (citing Harris v. State, 489

S.W.2d 303, 308 (Tex. Crim. App. 1973)). The burden then shifts to the State to

show the defendant did not suffer serious prejudice beyond that which would

normally result from ordinary delay. Munoz, 991 S.W.2d at 826.

      1.    Oppressive Pretrial Incarceration

      Here, Robinson argues that his incarceration in Mississippi after he was

arrested on the Harris County murder warrant in March 2006 was oppressive

because he did not receive time-served credit for the one year and nine months he

was confined in Mississippi.     Contrary to Robinson’s suggestion, he was not


3
      Robinson argues that the delay in this case subjected him to oppressive pretrial
      incarceration and impaired his ability to mount an adequate defense; he does not
      contend that the delay caused him anxiety and concern.
                                         16
serving time solely on Harris County’s warrant while he was incarcerated in

Mississippi.   Indeed, the record reflects that Robinson was incarcerated in

Mississippi on an unrelated cocaine possession charge from March 21, 2006 until

December 10, 2007, when he was released on parole. After that time, Robinson

was either on parole or free until he was taken into custody on February 18, 2009. 4

      Robinson does not cite to any case law in support of his contention that he

should have received time-served credit for the time he was incarcerated in

Mississippi on an unrelated charge or that it is appropriate to consider the time he

served for his Mississippi conviction for purposes of evaluating whether this

pretrial incarceration on the Harris County murder charge was oppressive for

speedy-trial analysis purposes. See generally Wade v. State, 83 S.W.3d 835, 839

(Tex. App.—Texarkana 2002, no pet.) (declining to weigh time that defendant

“was free or was confined for other charges unrelated to the current matters”

against State for speedy-trial purposes).

      Robinson also argues that the time he spent in Harris County awaiting trial,

and then retrial, was oppressive. As previously discussed, Robinson repeatedly

agreed to reset his case during these periods and he failed to assert his speedy trial

right before presenting a motion to dismiss—both of these factors are inconsistent


4
      Robinson concedes that after he was convicted following his second trial, he was
      credited with time served from the rearrest in Mississippi on February 18, 2009,
      until the date of the judgment on February 22, 2012.
                                            17
with the assertion of a speedy trial right and weigh against any claim of oppressive

pretrial incarceration. See Shaw, 117 S.W.3d at 890 (holding that presumption that

defendant was prejudiced by delay was negated by defendant’s failure to assert his

speedy trial right).   As such, Robinson failed to demonstrate that the delay

subjected him to oppressive pretrial incarceration.

      2.     Impairment of Defense

      Robinson further contends that his defense was impaired by the length of the

delay because “had he been aware of the charges against him, including the precise

time frame of when he was accused of murder, he would have been able to assist in

the preparation of his defense.” In particular, Robinson claims that “he could have

located former co-workers in the landscaping business or otherwise produced

documentation proving he was in Mississippi at the time of the offense.”

Essentially, Robinson argues that the delay prevented him from securing alibi

witnesses who would have placed him in Mississippi at the time of the murder.

      Where the basis for prejudice is witness unavailability, a defendant must

demonstrate that: (1) the witness was unavailable at the time of trial; (2) the

witness’ testimony would have been relevant and material; and (3) the defendant

exercised due diligence in an attempt to locate the witness. Phipps v. State, 630

S.W.2d 942, 947 (Tex. Crim. App. 1982); Ervin v. State, 125 S.W.3d 542, 548

(Tex. App.—Houston [1st Dist.] 2002, no pet.). Although Robinson testified that


                                         18
it was difficult to contact witnesses on his behalf while he was incarcerated, he

does not specifically identify any alibi witnesses who were unavailable at the time

of trial (aside from referencing a general category of potential witnesses—other

day laborers he had worked with on landscape jobs in Mississippi), nor did he

demonstrate that he had actually attempted to contact any such witnesses. As such,

Robinson failed to show that the length of the delay prejudiced his ability to

prepare his defense because he failed to demonstrate that there were alibi witnesses

who were unavailable at the time of trial and that he exercised due diligence in his

attempt to locate these potential witnesses. See generally Phipps, 630 S.W.2d at

947 (holding defendant fails to show prejudice even if missing witnesses’

testimony was material if he does not show diligence in procuring witnesses);

Ervin, 125 S.W.3d at 548 (weighing defendant’s failure to show that he was

prejudiced by his wife’s death while he was incarcerated against him because he

did not demonstrate what she would have testified to, or why it was material). 5

      Robinson also contends that the delay prejudiced his defense because it

further cemented in Jarvis’s mind “his identification of [Robinson] which occurred

three weeks after the shooting and employed the highly suggestive technique of

5
      We further note that Robinson was able to produce an alibi witness for his first
      trial—Tracy Bailey—and Bailey’s testimony indicated that Robinson’s mother—
      who was present for the second trial—could also have testified that he was living
      in Mississippi at the time of the murder. In particular, Bailey testified during the
      first trial that when Robinson moved back to Mississippi in 2003, he initially lived
      with his mother for a couple of months before he moved in with Bailey.

                                           19
informing Jarvis that ‘Bo’ was contained in the lineup.” On the contrary, the

record indicates that Jarvis identified Robinson from the lineup on February 2,

2004—two days after Jack’s murder. On cross-examination during the first trial,

Jarvis was asked: “When they got there, did they tell you that: We found a guy

named Bo and we want you to look at these and see if you can pick them out?”

Jarvis answered: “Yes.” Jarvis, however, who had originally testified that no one

pressured him to make an identification, clarified on redirect that Investigator

Wendel did not him tell that he had “put somebody named Bo in these photos”

when he showed him the photo array with Robinson’s photo. 6

      Admittedly, affirmative proof of particularized prejudice is not essential to

every speedy trial claim, because “excessive delay presumptively compromises the

reliability of a trial in ways that neither party can prove or, for that matter,

identify.”   Doggett, 505 U.S. at 655, 112 S. Ct. at 2693.              However, any

“presumption of prejudice” is extenuated by the defendant’s acquiescence in the

delay. See id. at 658, 112 S. Ct. at 2694. Here, the record reflects that Robinson

not only acquiesced to the delay by repeatedly agreeing to reset his case, but that

he also attempted to thwart apprehension by returning to Mississippi after the



6
      Although Robinson contends that law enforcement used “highly suggestive
      techniques” to obtain Jarvis’s identification, he does not raise this point as a
      separate issue, nor does he contend that the trial court erred in admitting Jarvis’
      identification of Robinson.

                                          20
murder and using aliases and false identifying information, and engaging in other

evasive behavior.

      3.     Conclusion

      Weighing all of the factors together, we hold that Robinson failed to

establish a violation of the right to a speedy trial that was grave enough to warrant

a dismissal of his case.

      We overrule Robinson’s first issue.

             Admission of Prior Testimony of “Unavailable” Witness

      In his second issue, Robinson contends that the trial court abused its

discretion by denying his request to declare Tracy Bailey “unavailable” under Rule

of Evidence 804(a)(5) for purposes of his second trial and admit her testimony

from his first trial. The State contends that Robinson did not meet his burden to

establish that Bailey was “unavailable” because he did not demonstrate that he

made a good-faith effort before his second trial to locate Bailey, and therefore, the

trial court did not abuse its discretion by refusing to admit Bailey’s prior

testimony.

A.    Standard of Review and Applicable Law

      Rule 804(b)(1) allows the admission of former testimony if a declarant is

unavailable as a witness. TEX. R. EVID. 804(b)(1) (providing that “[i]n criminal

cases, testimony given as a witness at another hearing of the same or a different


                                         21
proceeding, if the party against whom the testimony is now offered had an

opportunity and similar motive to develop the testimony by direct, cross, or

redirect examination” is not excluded as hearsay). A declarant is “unavailable” for

purposes of the rule if he or she “is absent from the hearing and the proponent of

the declarant’s statement has been unable to procure the declarant’s attendance or

testimony by process or other reasonable means.” TEX. R. EVID. 804(a)(5). In

order to establish that a declarant is unavailable under Rule 804(a)(5), the

proponent of the testimony must demonstrate that a good-faith effort was made

before trial to locate and present the declarant. Reed v. State, 312 S.W.3d 682, 685

(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); Urbano v. State, 808 S.W.2d

519, 521 (Tex. App.—Houston [14th Dist.] 1991, no pet.). However, a proponent

is not required by these rules to perform all improbable efforts to produce the

declarant. See Urbano, 808 S.W.2d. at 522; see also Ledbetter v. State, 49 S.W.3d

588, 594 (Tex. App.—Amarillo 2001, pet. ref’d) (stating proponent “is not

required to engage in clearly futile activities before a trial court can, in its

discretion, determine that the [proponent] made good-faith efforts to produce a

witness at trial.”). The State does not dispute that the evidence meets the other

requirements of Rule 804(b)(1); the State only challenges whether Bailey qualified

as unavailable for purposes of the rule.




                                           22
      We review a trial court’s ruling concerning the sufficiency of the

proponent’s efforts to locate and present a witness for an abuse of discretion. See

Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994) (en banc); Reed, 312

S.W.3d at 685. We do not conduct a de novo review, but instead limit our role to

determining whether the record supports the trial court’s ruling.           Coffin, 885

S.W.2d at 149. A trial court’s exclusion of testimony is an abuse of discretion only

if the decision lies outside the zone of reasonable disagreement. See Montgomery

v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en banc).

B.    Analysis

       Here, the record reflects that Robinson’s counsel attempted to secure

Bailey’s testimony through the same means he employed the first time—asking

Robinson’s aunt and his mother in Mississippi to bring Bailey with them to trial in

Houston. Bailey, however, had left Mississippi after the first trial and neither

Robinson’s aunt nor his mother knew how to reach her when counsel reached out

to them one month before the second trial. Robinson’s aunt had heard from

Bailey’s cousins that Bailey had moved to Washington State, but she did not have

an address or any contact information for Bailey in Washington. 7 This was the full

extent of Robinson’s efforts to locate and bring Bailey to testify at the second trial.



7
      Although Robinson’s counsel requested a court-appointed investigator to assist
      him with preparing for the first trial, he did not do so prior to the second trial.
                                          23
There is no evidence in the record that Robinson’s counsel made any attempt to

contact Bailey’s relatives in order to obtain information regarding her whereabouts.

      Robinson argues that the present case presents a similar factual scenario to

Reed in that the contacts defense counsel had with Bailey through Robinson’s

family had been exhausted and the only information they had indicated that Bailey

was possibly living somewhere in Washington State. Reed, however, is factually

distinguishable. See Reed, 312 S.W.3d at 683–84. In Reed, the State’s investigator

personally served the witness with process, she appeared at the courthouse, and the

judge personally instructed her to show up at the rescheduled trial date. Id. The

investigator also tried contacting the witness through friends and relatives, called

cell phone numbers that constantly changed, searched for any property or

registered vehicles, and directed authorities in Fort Bend County (where the

witness had an outstanding warrant) to contact him if the witness was arrested. Id.

The Court held that the State had established the unavailability of the witness by

demonstrating good-faith efforts to locate and present her for trial. Id. Thus,

unlike the present case in which counsel only attempted to locate Bailey through

Robinson’s family, in Reed, the State attempted to locate the witness through

multiple means. See id.

      Indeed, the facts of this case do not fit squarely within the parameters of any

of the cases cited by the parties. For example, in Reyes v. State, the El Paso Court

                                         24
of Appeals held that the State failed to demonstrate that it had made a good-faith

pre-trial effort to locate a witness based on the State’s investigator’s testimony that

he issued a subpoena for the witness, and, after he learned that the witness might

be in Mexico, he asked the witness’s grandmother for assistance in locating him.

Reyes v. State, 845 S.W.2d 328, 330 (Tex. App.—El Paso 1992, no pet.).

Although Robinson’s counsel initiated his search for Bailey at least a month before

the second trial, the State’s investigator in Reyes began his search a mere three

days before trial—a notable fact that did not escape the appellate court’s attention.

Id. at 331 (“We cannot consider this to be due diligence or reasonable good-faith

under the facts here.”). Loun v. State, Urbano, and Otero–Miranda v. State have

even less in common with the current case. See Loun v. State, 273 S.W.3d 406,

420 (Tex. App.—Texarkana 2008, no pet.) (holding State’s decision not to

subpoena    out-of-state   witness    was      insufficient   to   establish   witness’s

unavailability); Urbano, 808 S.W.2d. at 522 (holding State’s search of driver’s

license, vehicle registration, and phone and power company records, and

questioning of witness’ last known employer and apartment manager and other

residents at witness’ last known address constituted good-faith efforts to obtain

witness); Otero–Miranda v. State, 746 S.W.2d 352, 355 (Tex. App.—Amarillo

1988, pet. ref’d, untimely filed) (holding issuance of unserved subpoenas, without

any further action, did not establish good-faith efforts to obtain witness).

                                          25
      Based on the specific facts of this case and the lack of any controlling case

law, we believe that reasonable minds can disagree as to whether Robinson’s trial

counsel demonstrated a good-faith effort to secure Bailey’s attendance at the

second trial. Because the trial court’s decision to exclude the testimony on this

basis falls within a “zone of reasonable disagreement,” we cannot say that the trial

court abused its discretion by denying Robinson’s request to declare Bailey

“unavailable” under Rule 804(a)(5) and admit her prior testimony.

      We overrule Robinson’s second issue.

                                   Conclusion

      We affirm the trial court’s judgment.




                                              Jim Sharp
                                              Justice


Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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