





NUMBER 13-01-397-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI




NIGEL PINNOCK , Appellant, 

v.



THE STATE OF TEXAS , Appellee.




On appeal from the 24th District Court
of Refugio County, Texas.



O P I N I O N

Before Justices Yañez, Castillo, and Dorsey (1)
Opinion by Justice Dorsey



 Appellant, Nigel Pinnock, without a plea bargain, pleaded guilty to possession of marihuana pursuant to an agreement with
the State to work as a confidential informant.  After the plea the trial court postponed the punishment hearing, and appellant
began work as an informant.  The agreement stated that if he abided by the terms of the agreement  the State would
recommend deferred adjudication community supervision.  If he failed to satisfy the agreement the State would recommend
a cap of fifteen years in prison.  At the punishment hearing Sargent Jalufka testified that appellant failed to perform as
required by the agreement.  The trial court sentenced appellant to fifteen years in prison.  By five issues appellant
complains that:  the trial court had no jurisdiction to sentence him; he was denied a speedy trial; the State failed to use due
diligence; and he was denied due process of law.  We affirm.
A. Jurisdiction

 By his first issue appellant asserts that the trial court had no jurisdiction to sentence him, because prior to the punishment
hearing, almost fifty months had elapsed from the date of his arrest, and twenty-eight months had elapsed from the date he
pleaded guilty.  Criminal jurisdiction over the defendant begins with the due return of a felony indictment.  See Garcia v.
Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980). The attachment of jurisdiction in the district court conveys upon that
court the power to determine all essential questions "and to do any and all things with reference thereto authorized by the
Constitution and statutes, or permitted district courts under established principles of law."  Id. at 527-28.  A court's having
possession and jurisdiction of a case, that jurisdiction embraces everything in the case and every question arising which can
be determined in the case, until it reaches its termination and the jurisdiction is thereby exhausted.  Garcia, 596 S.W.2d at
528.
 Here the agreement envisioned a delay between the guilty plea and the punishment hearing so that appellant could work
with law enforcement.  The agreement stated that either party could have the case set for punishment upon request. 
Because the trial court had jurisdiction over appellant it could hold a punishment hearing and sentence him according to
law upon the request of either party.  We are aware of no case which holds that a trial court loses jurisdiction over the
defendant due to a delay between the arrest and punishment hearing or a delay between the plea and the punishment
hearing, especially when the defendant has agreed to work as a confidential informant.  We hold that the trial court did not
lose jurisdiction to sentence appellant.  We overrule the first issue.
 By his second issue appellant asserts that the trial court lacked jurisdiction to sentence him to a term and condition of
community supervision which required him to work as a confidential informant.  Appellant agreed to work as a confidential
informant, and the record does not show that the trial court placed him on community supervision.  We overrule the second
issue.
B. Speedy Trial

 By issue three appellant asserts that he was denied a speedy trial.  Speedy trial analysis requires us to examine four factors: 
(1) length of delay; (2) reason for delay; (3) assertion of the right;  and (4) prejudice to the accused.  Barker v. Wingo, 407
U.S. 514, 530 (1972).  We address these factors separately. 
 
1. Length of Delay

 We must find the delay presumptively prejudicial before analyzing the remainingBarker factors.  Barker, 407 U.S. at 530. 
Presumptive prejudice does not necessarily indicate a statistical probability of prejudice;  it simply marks the point at which
courts deem the delay unreasonable enough to trigger the Barker enquiry.  Doggett v. United States, 505 U.S. 647, 652 n.1
(1992); State v. Munoz, 991 S.W.2d 818, 821-22 (Tex. Crim. App. 1999).  We measure the delay from the time the
defendant is formally accused or arrested to the time of trial.  United States v. Marion, 404 U.S. 307, 313 (1971).  The court
of criminal appeals has said that a delay of eight months is presumptively unreasonable and prejudicial.  Harris v. State,
827 S.W.2d 949, 956 (Tex. Crim. App. 1992).  Here a delay of approximately fifty months occurred between the arrest and
the punishment hearing.  This delay triggers our consideration of the remaining Barker factors.  
2. Reason for Delay

 The State has the burden to prove a reason for the delay.  State v. Flores, 951 S.W.2d 134, 137 (Tex. App.-Corpus Christi
1997, no pet.).  Under Barker "different weights should be assigned to different reasons" for the delay, Barker, 407 U.S. at
531, and a "deliberate attempt to delay the trial" weighs heavily against the State.  Id.  We consider whether the delay was
due to deliberate attempts to hamper the defense or justified circumstances.  Crowder v. State, 812 S.W.2d 63, 66 (Tex.
App.- Houston [14th Dist.] 1991, pet. ref'd).  Here the delay resulted from three sources:  (1) appellant's work as an
informant; (2) appellant filed at least three motions for continuance; (2) and (3) the State filed one motion for continuance,
asking the court to continue the case from June 6, 2000 to July 11, 2000.  Although the State did not give a reason for the
continuance there is no evidence to show that the State's intent was to prejudice appellant.  We conclude that the delay
should not be weighed against the State. 
 
3. Assertion Of The Right

 Under Barker a defendant is responsible for asserting or demanding his right to a speedy trial.  Barker, 407 U.S. at 528-29. 
A defendant's assertion of this right is entitled to strong evidentiary weight.  Id. at 531.  Here the record does not show that
appellant asserted his right to a speedy trial.  Failure to assert the right will make it difficult to prove that the accused was
denied a speedy trial.  Guajardo v. State, 999 S.W.2d 566, 570 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd); Floyd v.
State, 959 S.W.2d 706, 710 (Tex. App.-Fort Worth 1998, no pet.).  We conclude that factor three weighs against appellant.
4. Prejudice To The Accused

 We assess prejudice "in the light of the interests" which "the speedy trial right [is] designed to protect."  Munoz v. State,
991 S.W.2d 818, 826 (Tex. Crim. App. 1999) (quoting Barker, 407 U.S. at 532-33).  These interests are: (1) preventing
oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that
the defense will be impaired.  Barker, 407 U.S. at 532-33;Munoz, 991 S.W.2d at 826.  Of these subfactors "the most serious
is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." 
Munoz, 991 S.W.2d at 826 (quoting Barker, 407 U.S. at 532-33).
 A defendant has the burden to make some showing of "prejudice" although a showing of "'actual prejudice'" is not
required.  Munoz, 991 S.W.2d at 826 (quoting Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973)).  When a
defendant makes a "prima facie showing of prejudice," the State carries "'the obligation of proving that the accused suffered
no serious prejudice beyond that which ensued from the ordinary and inevitable delay.'"  Munoz, 991 S.W.2d at 826
(quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973)).
 Appellant does not complain that he suffered oppressive pretrial incarceration, and it appears from the record that he was
in jail only a short time before posting bond. We conclude that he experienced no oppressive pretrial incarceration.
 The United States Supreme Court has recognized that even if not detained prior to trial, one awaiting trial on criminal
charges suffers restraints on his liberty and lives "under a cloud of anxiety, suspicion, and often hostility."  Barker, 407
U.S. at 533.  Here appellant does not argue that he suffered anxiety.  Nevertheless considering the severity of the charge
against him, a certain amount of anxiety while awaiting trial is to be expected.  See Thompson v. State, 983 S.W.2d 780,
785 (Tex. App.-El Paso 1998, pet. ref'd).  The delay gave him time to work as a confidential informant, which under the
agreement could have resulted in him receiving community supervision rather than a prison sentence.  Consequently any
claim of prejudice must rest primarily on the possibility that the delay impaired his defense.  Nothing in the record shows
that the delay impaired appellant's defense.  However in some instances "excessive delay presumptively compromises the
reliability of a trial in ways that neither party can prove or, for that matter, identify."  Doggett v. United States, 505 U.S.
647, 655 (1992).  In Doggett the accused failed to make any affirmative showing that a six-year-delay weakened his ability
to raise specific defenses, elicit specific testimony, or produce specific items of evidence.  Id.  The government argued that
the absence of such evidence defeated the accused's speedy-trial claim.  Id.  Disagreeing with the government the Court
noted that consideration of prejudice is not limited to the specifically demonstrable, and affirmative proof of particularized
prejudice is not essential to every speedy-trial claim.  Id.  As recognized in Barker v. Wingo impairment of one's defense is
the most difficult form of prejudice to prove.  Doggett, 505 U.S. at 655.  Thus the Court concluded that excessive delay
presumptively compromises the reliability of a trial in ways that neither party can prove or identify.  Doggett, 505 U.S. at
655.  While such presumptive prejudice is, standing alone, insufficient to carry a speedy-trial claim, courts must consider it
along with the other relevant criteria, keeping in mind that its importance increases with the length of delay.  Doggett, 505
U.S. at 655-56.
 Here the delay of approximately fifty months is far less than the six-year-delay in Doggett and is comparable to the
approximate four-year delay in Phipps v. State, 630 S.W.2d 942, 946-47 (Tex. Crim. App. 1982) (accused not denied Sixth
Amendment right to speedy trial even though there was a delay of four years and two months from the time of first arrest to
time of trial).  Thus the delay in this case was not excessive, and therefore, did not presumptively compromise the
reliability of the trial in ways that neither party can prove or identify.  Accordingly we may not hold that the length of the
delay alone amounted to prejudice.  See Harlan v. State, 975 S.W.2d 387, 391 (Tex. App.-Tyler 1998, pet. ref'd).  We
conclude that any prejudice in this case was minimal. See Barker, 407 U.S. at 534 (prejudice was "minimal" when
defendant lived "for over four years under a cloud of suspicion and anxiety" and spent "ten months in jail before trial," and
the record indicated "only two very minor lapses of memory" which "were in no way significant to the outcome").
Balancing The Barker Factors

 Appellant did not assert his right to a speedy trial.  The delay was presumptively prejudicial, but not excessive. Appellant
was not oppressed by pretrial incarceration and has not shown that the delay has impaired his defense.  Though appellant
was under a certain amount of anxiety while waiting for his punishment hearing this is insufficient to cause the prejudice
prong to weigh in appellant's favor.  Nothing in the record shows that the State deliberately delayed appellant's punishment
hearing. Further the prejudice suffered by appellant was minimal, and he suffered no serious prejudice beyond that which
ensued from the ordinary and inevitable delay.  We hold that appellant was not denied a speedy trial.  We overrule the third
issue.
C. Due Diligence

 By issue four appellant asserts that the State did not use due diligence in revoking his community supervision.  The trial
court did not place appellant on community supervision.  We overrule issue four.
D. Due Process of Law

 By his fifth issue appellant argues that he was denied due process of law because of the twenty-eight month delay between
the guilty plea and the punishment hearing. In Ex parte Montgomery, 894 S.W.2d 324 (Tex. Crim. App. 1995) the court
stated that in a procedural due process analysis "[t]he reviewing court must determine whether a protected liberty or
property interest exists and, if so, decide whether sufficient procedural safeguards are employed to assure the deprivation of
that interest is not arbitrary."  Id. at 327.  Because the agreement stated that appellant could request the trial court to set this
case for a sentencing hearing we hold that a sufficient procedural safeguard was used to assure that the deprivation of any
protected liberty or property interest was not arbitrary.  We overrule the fifth issue.


 We AFFIRM the trial court's judgment.


______________________________
J. BONNER DORSEY,
Justice


Publish .
Tex. R. App. P. 47.2(b).


Opinion delivered and filed
this 3rd day of April, 2003.
 
1. Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to
Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
2. The first motion for continuance was filed on December 15, 1997, the second on August 20, 1999, and the third on
August 22, 2000.
