                                      NO. 07-01-0261-CR

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                       MARCH 19, 2002

                            ______________________________


                              JIMMIE D. WATSON, APPELLANT

                                               V.

                             THE STATE OF TEXAS, APPELLEE


                          _________________________________

               FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 43,555-A; HONORABLE DAVID GLEASON, JUDGE

                            _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Pursuant to a plea of guilty, appellant Jimmie D. Watson, an inmate, was convicted

of murder, enhanced, and punishment was assessed at 40 years confinement.1 Appellant

filed his notice of appeal in compliance with Rule 25.2(b)(3) of the Texas Rules of

Appellate Procedure. Presenting two points of error, appellant contends the trial court


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          Initially, appellant plead not guilty, but during trial entered into a plea agreement.
erred in denying his motion to set aside the indictment for (1) failing to afford him his

constitutional right to a speedy trial, and (2) denying him a speedy trial based on a

violation of his Sixth Amendment right to counsel. Based upon the rationale expressed

herein, we affirm.


       On November 12, 1994, appellant and another inmate assaulted a third inmate.

The victim remained comatose until June 24, 1997, when he died. On December 18,

1997, appellant was indicted for murder, enhanced by two prior convictions. According to

the record appellant was read his rights on August 27, 1997, and capias was issued on

December 18, 1997, and received by appellant on January 29, 1998. On March 13, 1998,

appellant filed a pro se motion to dismiss the indictment pursuant to articles 28.061 and

32.01 of the Texas Code of Criminal Procedure for failure to present the indictment at the

next term of court. On August 25, 1999, the Board of Criminal Justice was directed by the

trial court to provide appellant with legal representation. However, although unclear from

the record, it appears that counsel was not appointed until sometime in October 1999, at

which time counsel moved to withdraw due to a conflict of interest. Appellant was re-

indicted under a different cause number on February 1, 2001, and on March 8, 2001,

pursuant to a bench warrant, appellant was brought before the court, served with a copy

of the indictment, and counsel was appointed to represent him. After dismissal of the

second indictment, appellant was re-indicted under cause number 43,355-A on March 15,

2001. Counsel filed two separate motions to set aside the indictment for violation of


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appellant’s Sixth Amendment right to a speedy trial. After a hearing was held on April 17,

2001, the court took the motion under advisement.            Following jury selection and

presentation of some of the State’s witnesses, appellant agreed to change his plea to

guilty in exchange for 40 years confinement. On April 25, 2001, the trial court denied

appellant’s motion to set aside the indictment.


       By his first point of error, appellant contends the trial court erred in denying his

motion to set aside the indictment for failure to afford him his constitutional right to a

speedy trial. We disagree. The right to a speedy trial is guaranteed by the Sixth

Amendment of the United States Constitution and applies to the states through the

Fourteenth Amendment. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192,

33 L.Ed.2d 101, 116-17 (1972). Additionally, Article I, Section 10 of the Texas Constitution

and article 1.05 of the Texas Code of Criminal Procedure Annotated (Vernon 1977)

guarantee a speedy trial. In determining whether an accused was denied his right to a

speedy trial, we are required to balance four factors, to-wit: 1) length of the delay; 2)

reason for the delay; 3) assertion of the right; and 4) prejudice to the accused to determine

whether a defendant’s right to a speedy trial has been violated. Barker, 407 U.S. at 530-

32; State v. Munoz, 991 S.W.2d 818, 821 (Tex.Cr.App. 1999). No single factor is a

“necessary or sufficient condition to the finding” of a speedy trial violation, and these

factors must be considered in conjunction with other relevant circumstances. Munoz, 991

S.W.2d at 821, citing Barker, 407 U.S. at 533. Because the balancing test as a whole is


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a purely legal question, we must review appellant's contention de novo. See Johnson v.

State, 954 S.W.2d 770, 771 (Tex.Cr.App. 1997).


       Length of delay. A defendant has the burden of first showing that sufficient delay

has occurred to trigger application of the Barker balancing test. State v. Hernandez, 830

S.W.2d 631, 635 (Tex.App.–San Antonio 1992, no pet.). Appellant asserts that a seven-

year delay occurred from the date of the offense to the time of trial; however, appellant was

not charged with a crime until three years after the incident when the victim died on June

24, 1997. Appellant was indicted on December 18, 1997. The State acknowledges that

the 40-month delay between appellant’s indictment and the trial date necessitates a

speedy trial analysis.


       Reason for the delay. The State bears the burden of justifying the trial delay, and

if the record is silent or the reasons given are insufficient to excuse the delay, the

appellate court must presume that no valid reason for the delay existed. Phillips v. State,

650 S.W.2d 396, 400 (Tex.Cr.App. 1983). Barker does not require a direct explanation

in every case. See Ramirez v. State, 897 S.W.2d 428, 431-32 (Tex.App.–El Paso 1995,

no pet.).


       The State did not request any continuances nor was it ever called upon to

announce ready. At the hearing on appellant’s motion the State explained that no delay

was attributable to it. The State argued that the judicial system caused the delay. The trial


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court decided to try appellant’s co-defendant first. According to the State, this justified

much of the delay. The evidence at the hearing also established that appellant was in the

process of developing his case and could not have proceeded to trial any sooner. We

agree with the State that the reasons for the delay should weigh only minimally against it.


       Assertion of the right. A defendant’s assertion of his speedy trial right is entitled

to strong evidentiary weight in determining whether he was deprived of that right. Barker,

407 U.S. at 531-52. Conversely, a failure to assert the right in a timely and persistent

manner indicates that he did not really desire a speedy trial. Id. at 534-36. In such a case,

this factor must be weighed against the defendant. Sinclair v. State, 894 S.W.2d 437, 440

(Tex.App.--Austin 1995, no pet.).


       Appellant received the capias on January 29, 1998, and on March 13, 1998, he filed

a pro se motion to dismiss the indictment. By his motion, appellant did not request a

speedy trial nor did he indicate that he was ready to proceed to trial. In McCarty v. State,

498 S.W.2d 212, 214 (Tex.Cr.App. 1978), the Court noted:


       [a]lthough a motion to dismiss notifies the State and the court of the speedy
       trial claim, a defendant’s motivation in asking for dismissal rather than a
       prompt trial is clearly relevant, and may sometimes attenuate the strength of
       his claim.


See also Mabra v. State, 997 S.W.2d 770, 777-78 (Tex.App.–Amarillo 1999, pet. ref’d).

Candace Norris, who had been appointed to represent appellant but later withdrew


                                             5
because of a conflict, testified at the hearing that appellant had some legal issues to

develop before proceeding to trial. A copy of a letter dated October 15, 1999, written by

appellant was admitted into evidence. It evinced his intent to have counsel file numerous

motions and raise a defensive issue. The evidence at the hearing established that

appellant did not really desire a speedy trial, but instead hoped for a dismissal of the

indictment. We conclude this factor weighs heavily against appellant.


       Prejudice. Although a showing of actual prejudice is not required, appellant bears

the initial burden of establishing prejudice from the delay of his trial. Harris v. State, 489

S.W.2d 303, 308 (Tex.Cr.App. 1973). It is the defendant’s burden to make a showing of

prejudice. Ramirez, 897 S.W.2d at 433. A mere passage of time is not per se a

deprivation of the right to a speedy trial. McCarty v. State, 498 S.W.2d 212, 215

(Tex.Cr.App. 1973). Prejudice is considered in light of the interests that the right to a

speedy trial was designed to protect. Barker, 407 U.S. at 532. These interests include

prevention of extended pretrial incarceration, minimization of anxiety over pending

charges, and most importantly, the prevention of actual prejudice to the defendant's ability

to present a defense. See Emery v. State, 881 S.W.2d 702, 709 (Tex.Cr.App. 1994), cert.

denied, 513 U.S. 1192, 115 S.Ct. 1257, 131 L.Ed.2d 137 (1995). Although actual

prejudice is not required, a defendant must make a prima facie showing of prejudice.

Munoz, 991 S.W.2d at 826.




                                              6
       Appellant was incarcerated for another crime when he was indicted for murder.

Thus, he cannot claim that his pretrial incarceration was oppressive. He did not present

any evidence to show anxiety, fear, or disruption of family life by the delay. By the

evidence and numerous witnesses presented at the hearing on his motion, appellant

attempted to establish that the 40-month delay prejudiced his ability to present a defense.


       Appellant established that some evidence and potential witnesses were no longer

available.   The internal affairs investigator testified that after he concluded his

investigation he turned the evidence and his report over to his supervisor. He believed

that those items had been shipped to Huntsville. Two of the warden’s designees testified

and complied with their subpoenas to the best of their ability. Appellant had requested a

roster of all inmates housed in his building and its related pods at the time of the incident.

However, the witnesses testified that because the roster changes frequently due to

movement of the inmates, they are not required to keep such a record.


       A private investigator appointed to assist in appellant’s case testified that the State

was very cooperative throughout her investigation. She confirmed that there had been no

delay attributable to the State. She gathered her information from interviews with guards

and inmates and attempted to locate other witnesses who were no longer inmates. Of a

possible 144 inmates housed in a pod, she acknowledged that she could only speculate

how many had witnessed the incident because at any given time inmates may be out of

the pod for visitation, job duties, or meals. Although she testified that she was unable to

                                              7
locate numerous witnesses, the State offered voluntary statements that were taken after

the incident of those persons. According to the State, none of the statements would have

exonerated appellant. Also, appellant did not make a prima facie showing of prejudice by

satisfying his burden to show what the missing evidence or unavailable witnesses would

have established. This factor weighs against appellant. After balancing the Barker

factors, we conclude the trial court did not err in denying appellant’s motion to set aside

the indictment for violating his right to a speedy trial. Point of error one is overruled.


       By his second point of error, appellant contends the trial court erred in denying his

motion to set aside the indictment on speedy trial grounds resulting from a violation of his

Sixth Amendment right to counsel. We disagree. At the time appellant asserted his right

to a speedy trial, he was represented by counsel. Having previously concluded that the

trial court did not err in denying appellant’s motion, his second point of error is moot.


       Accordingly, the judgment of the trial court is affirmed.



                                                  Don H. Reavis
                                                    Justice


Do not publish.




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