                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00033-CR

KEVIN JOSEPH REESE,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee


                          From the 19th District Court
                           McLennan County, Texas
                          Trial Court No. 2005-1049-C1


                          MEMORANDUM OPINION


      Kevin Joseph Reese was convicted of possession of a controlled substance, which

was enhanced to a second degree felony. See TEX. HEALTH & SAFETY CODE ANN. §

481.115(b) (Vernon 2003); TEX. PENAL CODE ANN. § 12.42(a)(2) (Vernon Supp. 2008). He

was sentenced to 20 years in prison. Because the issue of vindictive prosecution was

not preserved and because Reese’s right to a speedy trial was not violated, the trial

court’s judgment is affirmed.
                                VINDICTIVE PROSECUTION

        In his first issue, Reese contends that the prosecutor assigned to his case engaged

in vindictive prosecution.

        Both Texas and federal courts recognize that prosecutors have broad discretion

in deciding which cases to prosecute. Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App.

2004). A claim of prosecutorial vindictiveness may be established by either of two

distinct methods of proof: 1) proof of circumstances that pose a "realistic likelihood" of

such misconduct sufficient to raise a "presumption of prosecutorial vindictiveness,”

which the State must rebut or face dismissal of the charges; or 2) proof of "actual

vindictiveness"- that is, direct evidence that the prosecutor's charging decision is an

unjustifiable penalty resulting solely from the defendant's exercise of a protected legal

right. Id. (internal citations omitted). Reese bases his claim on the second method of

proof, actual vindictiveness.

        To establish a claim of actual vindictiveness, a defendant must prove, with

objective evidence, that the prosecutor's charging decision was a "direct and

unjustifiable penalty" that resulted "solely from the defendant's exercise of a protected

legal right." Neal v. State, 150 S.W.3d at 174. (internal citations omitted). Under this

method of proof, the defendant shoulders the burden of both production and

persuasion, unaided by any legal presumption. Id. The trial judge decides the ultimate

factual issue based upon the evidence and credibility determinations. Id. at 174-175.

The State may stand mute unless and until the defendant carries his burden of proof.



Reese v. State                                                                       Page 2
Id. We note that the charging decision in this proceeding was made prior to the conduct

Reese alleges is proof of prosecutorial vindictiveness.

        But, just as in Neal, Reese has not preserved his claim for review. See Neal v.

State, 150 S.W.3d at 175. Although Reese points to two hearings1 where he informed the

trial court that he wanted the prosecutor removed from the case and to a pro se motion

for speedy trial where he mentioned that the prosecutor was vindictive in his

prosecution of an earlier case, Reese did not let the trial court know with sufficient

specificity that his complaint was that the prosecutor’s charging decision in this case was

a direct and unjustifiable penalty that resulted solely from Reese’s exercise of a

protected legal right. See TEX. R. APP. P. 33.1(a)(1)(A). The trial court was not asked to

decide whether Reese met his burden of proof and if so, did not then put the State on

notice that it had to justify its actions. Reese has not preserved this issue for review,

and it is overruled.

                                           SPEEDY TRIAL

        In his second issue, Reese contends that his conviction should be reversed and a

judgment rendered of acquittal because he was denied his constitutional right to a

speedy trial.

        The Sixth Amendment to the United States Constitution guarantees an accused

the right to a speedy trial. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008)

(citing Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002)). Supreme Court

1Reese wanted the Court to consider two more hearings from different proceedings. Because we denied
his motions to supplement the record with reporter’s records from those hearings, those hearings are not
a part of this record for review. Even if the record was supplemented with those hearings, his claim
would still not be preserved.

Reese v. State                                                                                   Page 3
precedent requires state courts to analyze federal constitutional speedy-trial claims "on

an ad hoc basis" by weighing and then balancing the four Barker v. Wingo2 factors: 1)

length of the delay, 2) reason for the delay, 3) assertion of the right, and 4) prejudice to

the accused. Id. 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 showing prejudice.

Id. The four factors are related and must be considered together along with any other

relevant circumstances. Id. at 281. Courts must apply the Barker balancing test 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. Id.

Standard of Review

           "In reviewing the trial court's ruling on appellant's federal constitutional speedy

trial claim, we apply a bifurcated standard of review: an abuse of discretion standard

for the factual components, and a de novo standard for the legal components."

Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). Under the abuse of

discretion standard, appellate courts defer not only to a trial judge's resolution of

disputed facts, but also to his right to draw reasonable inferences from those facts.

Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008).             The trial judge may

completely disregard a witness's testimony, based on credibility and demeanor

evaluations, even if that testimony is uncontroverted. Id. And all of the evidence must

be viewed in the light most favorable to his ultimate ruling. Id.

2   407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).

Reese v. State                                                                          Page 4
        As a general rule, an appellate court reviewing a trial court's ruling on a motion

to dismiss for want of a speedy trial must do so in light of the arguments, information,

and evidence that was available to the trial court at the time it ruled. Dragoo v. State, 96

S.W.3d 308, 313 (Tex. Crim. App. 2003).

The Hearing

        On January 17, 2008, the trial court brought Reese into court because on the day

before, Reese had filed two pro-se motions, a writ of habeas corpus alleging a speedy

trial complaint and a “Motion to Set Aside Indictment for Failure to Provide Speedy

Trial.” Reese had also “filed some pro se letters to the court alleging that [his] right to a

speedy trial has been violated….” A hearing took place on those motions. The case had

been transferred to this particular court only three days before the hearing. Further,

neither party asked the court to take judicial notice of what was in the court’s file, nor

admitted into evidence what had occurred in the district court where the indictment

was originally filed. Throughout the hearing, the trial court assured Reese he would get

a speedy trial and set the trial for the next week. After the hearing, Reese’s motions

were denied.

        Length of the Delay

        The length of the delay is measured from the time the defendant is arrested or

formally accused. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). This factor

is, to some extent, a triggering mechanism, so that a speedy trial claim will not even be

heard until passage of a period of time that is, on its face, unreasonable under the

circumstances. Id. (citing Doggett v. United States, 505 U.S. 647, 651-652, 120 L. Ed. 2d

Reese v. State                                                                         Page 5
520, 112 S. Ct. 2686 (1992); Barker v. Wingo, 407 U.S. at 530). In general, courts deem a

delay approaching one year to be unreasonable enough to trigger the Barker inquiry.

Dragoo v. State, 96 S.W.3d at 313.

        Prior to any discussion about the motions filed by Reese, the trial court

confirmed that Reese had been represented for about two years by the same counsel

and prior to that he had been represented by different counsel. Reese stated that the

case had been pending almost three years. It appears from the record that the parties

were in agreement that the case had been pending a long time.

        A delay of almost three years is long enough to trigger the Barker inquiry and

weighs against the State.

        Reason for the Delay

        When a court assesses the second Barker factor, "different weights should be

assigned to different reasons" for the delay. Dragoo v. State, 96 S.W.3d 308, 314 (Tex.

Crim. App. 2003). A valid reason for the delay should not be weighed against the

government at all. State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999) (citing

Barker v. Wingo, 407 U.S. at 531 (valid reason for the delay "should serve to justify

appropriate delay")).    And delay which is attributable in whole or in part to the

defendant may even constitute a waiver of a speedy trial claim. Id. (citing Dickey v.

Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26, 38 (1970) (Brennan, J., concurring)

(defendant may be "disentitled to the speedy-trial safeguard in the case of a delay for

which he has, or shares, responsibility")).



Reese v. State                                                                      Page 6
        In response to Reese’s statement to the court that the case had been pending

almost three years, the State explained that part of the delay was Reese’s trial for felony

bail jumping. Another part of the delay was that they had to go to Illinois to retrieve

Reese. The State further explained that Reese had asked for resets or continuances so

his attorney could obtain additional information. Reese’s counsel agreed that he filed

some continuances on Reese’s behalf earlier in the proceeding. He also stated that since

August, there had been other cases pending in the previous district court that had been

specially set, such as three murder trials and aggravated sexual assault trials, which

caused this case not to be tried. The trial court commented that it understood how that

could happen.

        Based on the statements made in court, the trial court could have determined

that Reese shared in the responsibility for the delay of his trial. Thus, this factor weighs

in favor of the State.

        Assertion of the Right

        A defendant has the responsibility to assert his right to a speedy trial. Cantu v.

State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008). The lack of a timely demand for a

speedy trial strongly indicates that a defendant did not really want a speedy trial and

that he was not prejudiced by lack of one. Dragoo v. State, 96 S.W.3d 308, 314 (Tex.

Crim. App. 2003). Inaction weighs more heavily against a violation the longer the delay

becomes. Id. (citing G. Dix & R. Dawson, Texas Criminal Practice and Procedure § 23.40

(2d ed. 2001)). Filing for a dismissal instead of a speedy trial will generally weaken a



Reese v. State                                                                        Page 7
speedy-trial claim because it shows a desire to have no trial instead of a speedy one.

Cantu v. State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008).

         Only a day before the hearing, Reese filed two pro-se motions, a writ of habeas

corpus alleging a speedy trial complaint and a “Motion to Set Aside Indictment for

Failure to Provide Speedy Trial.” The trial court stated that Reese had also “filed some

pro se letters to the court alleging that your right to a speedy trial has been violated…,”

but no time frame was given for those letters and it is unclear as to what “letters” the

trial court was referring. If any earlier requests for a speedy trial were made, Reese did

not bring those requests to the trial court’s attention. On appeal, Reese points to veiled

references to the amount of time he had spent in jail to the court in which this

proceeding was originally filed. These references were not before the trial court that

decided the pro se motions and do not affirmatively assert Reese’s right to a speedy

trial.

         Further, when Reese was told a trial would be set for the next week, which was

January 22, 2008, counsel explained that because he was currently trying a murder case,

Reese wanted to start his trial on the 28th or 29th so that counsel could look into some

things. “[H]e wants a speedy trial but wants to give me that week after this trial to

properly prepare.” RR V at pg. 6.

         Reese delayed in asserting his right to a speedy trial. He then asked for a

dismissal rather than a speedy trial. Further, when a trial was set, Reese wanted to wait

another week. The trial court could have believed that Reese did not really want a

speedy trial. This factor weighs against Reese.

Reese v. State                                                                       Page 8
        Prejudice to the Accused

        When a court assesses the final Barker factor, it must do so in light of the interests

of defendants which the 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. Barker v. Wingo,

407 U.S. at 532; Dragoo v. State, 96 S.W.3d 308, 316 (Tex. Crim. App. 2003).

        As is obvious by the fact that Reese was brought back to Texas from Illinois, he

was not detained in Texas the entire period between indictment and trial. Nevertheless,

Reese complained that by being in jail so long, he was broke and had lost everything.

Reese further complained that he had two witnesses who had passed away. He claimed

that the witnesses were with him the night the offense for possession of a controlled

substance took place. He contended that he was not going to get a fair trial because of

the delay. The prosecutor for the State responded that this was the first time he had

heard about additional witnesses for the possession case. The prosecutor stated that

Reese had alleged the same thing, that someone had passed away, in the felony bail

jumping case; but in the drug case, the prosecutor did not believe any one else, other

than the State’s witnesses, was present at the time of the offense. Further, Reese did not

identify with specificity who had died or how their testimony would have assisted in

his defense.




Reese v. State                                                                          Page 9
        The trial court could have disbelieved Reese’s assertion that he had witnesses

who could not now testify. But because Reese had been in jail so long, this factor only

weighs slightly in favor of Reese.

Balancing

        In balancing the four factors, we find that although the delay was lengthy and

Reese had been in jail for an extensive period of time, Reese contributed to the delay, he

did not really want a speedy trial, and the prejudice to him was slight. Therefore, when

balanced together, the weight of the four factors is against a finding of a violation of

Reese’s right to a speedy trial.

        The trial court did not err in denying Reese’s motions, and Reese’s second issue

is overruled.

                                        COURT COSTS

        In his third issue, Reese asserts that by an order signed on January 31, 2008, the

trial court violated his due process rights by notifying the Texas Department of

Criminal Justice—Institutional Division to debit Reese’s inmate account for court costs

without giving him prior notice. Reese does not challenge the amount of the cost

assessed against him, only the method by which TDCJ—ID was notified to debit his

inmate account for the cost assessed.

        Reese’s entire argument is based solely on this Court’s opinion in In re Keeling,

where a majority of this Court held that, in a criminal mandamus proceeding, a court’s

order notifying TDCJ—ID to debit an inmate’s trust account for cost violated the

inmate’s right to due process and was void. See In re Keeling, 227 S.W.3d 391 (Tex.

Reese v. State                                                                     Page 10
App.—Waco 2007, orig. proceeding). However, recently, the Court of Criminal Appeals

has held that the particular complaint made by Reese and made by the inmate in Keeling

is not a criminal law matter. In re Johnson, ___S.W.3d ___, No. AP-75,898, 2008 Tex.

Crim. App. LEXIS 1628 (Tex. Crim. App. Oct. 29, 2008). Therefore, because Reese’s

complaint is not a criminal law matter, this issue is not properly before us; and we will

not dispose of the issue in this criminal appeal. We dismiss this issue.

                                      CONCLUSION

        Having disposed of all issues properly before us, we affirm the trial court’s

judgment of conviction.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed February 11, 2009
Do not publish
[CR25]




Reese v. State                                                                    Page 11
