                                                                        PD-1452-15
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                      Transmitted 12/7/2015 3:44:20 PM
                                                       Accepted 12/10/2015 4:58:25 PM
                                                                        ABEL ACOSTA
                         NO. PD-1452-15                                         CLERK
          IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                        AUSTIN, TEXAS

THE STATE OF TEXAS               §                    APPELLANT
                                 §
VS.                              §
                                 §
BRITTANY WYATT                   §                      APPELLEE


              PETITION FOR DISCRETIONARY REVIEW


                   CAUSE NO. 13-13-00496-CR
        IN THE COURT OF APPEALS FOR THE 13TH DISTRICT


                   APPEAL IN CAUSE NO. 11CR5202-3
                   IN COUNTY COURT AT LAW NO. 3
                          NUECES COUNTY


                                     SCHNEIDER & McKINNEY, P.C.
                                     W. TROY McKINNEY*
                                     TEXAS BAR NO. 13725020
                                     E-MAIL: wtmhousto2@aol.com

                                     TOM MORAN
      December 10, 2015              TEXAS BAR NO. 14422200
                                     E-MAIL: tom6294@aol.com

                                     440 LOUISIANA, SUITE 800
                                     HOUSTON, TEXAS 77002
                                     (713) 951-9994
                                     TELECOPIER: (713) 224-6008

*ATTORNEY IN CHARGE                  ATTORNEYS FOR APPELLEE
                            IDENTITY OF THE PARTIES

1.   Deeanna Svoboda Galvan (in her official capacity). . . . . . . . . . . . Trial Judge

2.   Brittany Wyatt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defendant-Appellee

3.   The State of Texas.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Plaintiff-Appellant

4.   W. Troy McKinney. . . . . . . . . . . Appellate counsel for Defendant-Appellee
     Tom Moran

     Schneider & McKinney, P.C.
     440 Louisiana, Suite 800
     Houston, Texas 77095

5.   John Gilmore. . . . . . . . . . . . . . . . . . . . Trial Counsel for Defendant-Appellee
     622 Tanchau St.
     Corpus Christi, Texas 78401

6.   Ann Logue.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial Counsel for the State
     William Ainsworth. . . . . . . . . . . . . . . . . . . . Appellate Counsel for the State

     Nueces County District Attorney's Office
     901 Leopard, Room 206
     Corpus Christi, Texas 78401




                                                 i
                                        TABLE OF CONTENTS


IDENTITY OF THE PARTIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
    Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
    Statutes and Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT CONCERNING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . v

I. STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . 1

III. GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

IV. ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
     A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
     B. Issue One: Considering Material Outside the Appellate Record.. . . . . . 6
     C. Issue Two: Addressing All Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
     D. Issue Three: Error Preservation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
     E. Issue Four: Speedy Trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

V. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                            ii
                                        INDEX OF AUTHORITIES

                                                           Cases

Jack v. State, 149 S.W.3d 119 (Tex. Crim. App. 2004).. . . . . . . . . . . . . . . . . 2, 6, 9

Alford v. State, 400 S.W.3d 924 (Tex. Crim. App. 2013).. . . . . . . . . 3, 4, 10, 12-14

Barker v. Wingo, 407 U.S. 514 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Gipson v. State, 383 S.W.3d 152 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . 2, 9, 10

Haitt v. State, 319 S.W.3d 115 (Tex. App. – San Antonio 2010, pet. ref'd). . . . 2, 7

Henson v. State, 407 S.W.3d 764 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . 13

Hernandez v. State, 116 S.W.3d 26 (Tex. Crim. App. 2003). . . . . . . . . . . . . . 2, 6, 9

Holland v. Memorial Hospital System, No. 01-14-00283-CV (Tex. App. – Houston
[1st Dist.] November 24, 2015) (not yet reported).. . . . . . . . . . . . . . . . . . . . . . . . 2, 7

Keehn v. State, 233 S.W.3d 348 (Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . 2, 10

State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . 4, 14

Turrubiate v. State, 415 S.W.3d 433 (Tex. App. – San Antonio 2013, pet. ref'd)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 11, 14

                                                Statutes and Rules

TEX. R. APP. P. 68.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX. R. APP. P. 33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

TEX. R. APP. P. 33.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10

TEX. R. APP. P. 38.1(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                                                              iii
TEX. R. APP. P. 47.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9, 10

TEX. R. APP. P. 66.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4

TEX. R. APP. P. 66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4

TEX. R. APP. P. 66.3(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3

TEX. R. APP. P. 66.3(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3

TEX. R. APP. P.38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. CONST. amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15




                                                           iv
              STATEMENT CONCERNING ORAL ARGUMENT

      This appeal by the State presents four important questions for this Court:

      1. Whether a court of appeals can base factual determinations on materials not

contained in the appellate record but asserted by the State in its appellate brief.

      2. Whether a trial court's ruling will be upheld on a theory of law supported

by the record but raised by neither party in the trial court.

      3. Whether a prevailing party in the trial court has any duty to "preserve error"

for purposes of TEX. R. APP. P. 33.

      4. Whether the Court of Appeals erred in failing to address all material issues

raised by Appellee.

      Appellee believes oral argument is important and would be helpful in the

court's decision-making process, especially the use by the Court of Appeals of factual

assertions not supported by the record made by the State in its appellate brief.




                                           v
TO THE JUDGES OF THE COURT OF CRIMINAL APPEALS:

      COMES NOW BRITTANY WYATT, by and through her attorneys, W.

TROY McKINNEY and TOM MORAN, and pursuant to TEX. R. APP. P. 68 files

this petition for discretionary review and would show the Court as follows:

                        I. STATEMENT OF THE CASE

      This is an appeal by the State from the decision of the trial court to dismiss a

DWI information with prejudice.

              II. STATEMENT OF PROCEDURAL HISTORY

      The Court of Appeals reversed the trial court in an opinion issued June 4, 2015.

A copy is attached as Appendix A. Appellee filed a timely motion for rehearing

which was overruled on October 6, 2015. On November 9, 2015, this Court

extended time to file this petition until December 7, 2015.

                        III. GROUNDS FOR REVIEW

1.    Whether the Court of Appeals erred by considering factual matters not
      contained in the appellate record but asserted in the State's brief.

      Review is proper pursuant to TEX. R. APP. P. 66.3(f) in that the Court of

Appeals so far departed from the accepted and usual course of judicial proceedings

as to call for an exercise of the Court of Criminal Appeals' power of supervision.

Review also is proper pursuant to TEX. R. APP. P. 66.3(d) in that it appears to have


                                          1
misinterpreted TEX. R. APP. P.38. Review also is proper pursuant to TEX. R. APP. P.

66.3(c) in that the Court of Appeals decided an important question of state law in

conflict with this Court's decisions in Jack v. State, 149 S.W.3d 119 (Tex. Crim. App.

2004); and Hernandez v. State, 116 S.W.3d 26 (Tex. Crim. App. 2003). Review also

is proper pursuant to TEX. R. APP. P. 66.3(a) in that the decision of the Court of

Appeals conflicts with the decision on the same issue by the San Antonio Court of

Appeals in Haitt v. State, 319 S.W.3d 115 (Tex. App. – San Antonio 2010, pet. ref'd);

and the First Court of Appeals in Holland v. Memorial Hospital System, No. 01-14-

00283-CV (Tex. App. – Houston [1st Dist.] November 24, 2015) (not yet reported).

2.    Whether the Court of Appeals erred in failing to address Appellee's
      claim that the State had not preserved error on appeal and in not
      separately addressing her due process claim.

      Review is proper pursuant to TEX. R. APP. P. 66.3(f) in that the Court of

Appeals so far departed from the accepted and usual course of judicial proceedings

as to call for an exercise of the Court of Criminal Appeals' power of supervision.

Review also is proper pursuant to TEX. R. APP. P. 66.3(d) in that it appears to have

misinterpreted TEX. R. APP. P. 47.1. Review also is proper pursuant to TEX. R. APP.

P. 66.3(c) in that the failure of the Court of Appeals to address all issues conflicts

with this Court's decisions in Keehn v. State, 233 S.W.3d 348 (Tex. Crim. App.

2007); and Gipson v. State, 383 S.W.3d 152 (Tex. Crim. App. 2012).

                                          2
3.    Whether the Court of Appeals erred in holding Appellee's speedy trial
      claim was waived because she had not specifically raised it in the trial
      court when it was the State, not Appellee, was the losing party in the
      trial court.

      Review is proper pursuant to TEX. R. APP. P. 66.3(f) in that the Court of

Appeals so far departed from the accepted and usual course of judicial proceedings

as to call for an exercise of the Court of Criminal Appeals' power of supervision.

Review also is proper pursuant to TEX. R. APP. P. 66.3(d) in that it appears to have

misinterpreted TEX. R. APP. P. 33.1. Review also is proper pursuant to TEX. R. APP.

P. 66.3(a) in that the decision of the Court of Appeals conflicts with Turrubiate v.

State, 415 S.W.3d 433 (Tex. App. – San Antonio 2013, pet. ref'd) Review also is

proper pursuant to TEX. R. APP. P. 66.3(c) in that the Court of Appeals has decided

an important question of state procedural law in conflict with this Court's decision in

Alford v. State, 400 S.W.3d 924 (Tex. Crim. App. 2013).

4.    Whether in considering if the trial court's ruling could be upheld under
      a theory of law not raised in the trial court, the Court of Appeals erred
      in 1) requiring the prevailing party to preserve error by raising that
      theory in the trial court; and 2) relying on "facts" in the State's brief but
      not supported by the record.

      Review is proper pursuant to TEX. R. APP. P. 66.3(f) in that the Court of

Appeals so far departed from the accepted and usual course of judicial proceedings

as to call for an exercise of the Court of Criminal Appeals' power of supervision.



                                           3
Review also is proper pursuant to TEX. R. APP. P. 66.3(a) in that the decision of the

Court of Appeals conflicts with Turrubiate v. State, 415 S.W.3d 433 (Tex. App. – San

Antonio 2013, pet. ref'd) Review also is proper pursuant to TEX. R. APP. P. 66.3(c)

in that the Court of Appeals has decided an important question of state procedural law

in conflict with this Court's decision in Alford v. State, 400 S.W.3d 924 (Tex. Crim.

App. 2013); and State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006).

                                  IV. ARGUMENT

                                   A. Introduction

       In this appeal, the Court of Appeals required the prevailing party, not the losing

party in the trial court, to preserve error for purposes of Rule 33.1, based its decision

on facts asserted in the State's brief but not the appellate record, failed to address all

claims made by Appellee and failed to give deference to the trial court's implied

factual findings in considering affirming the trial court under a theory not raised in

the trial court.

       This case involves two informations charging Appellee with the same offense

of driving while intoxicated. The first, Cause No. 2007-0624-3, which was pending

from January 26, 2007, until September 15, 2011, when it was dismissed by the State.

The second was filed September 20, 2011. C.R. 4.

       On October 28, 2011, Appellee filed a motion for sanctions asserting facts that

                                            4
there were numerous settings in Cause No. 2007-0624-3, including two evidentiary

hearings at which the arresting officer did not appear. The case was set for a pretrial

motion to suppress, the arresting officer failed to appear on the appointed day and the

State dismissed the information. C.R. 8-9. The State refiled the information that is

subject of the instant case.

      On August 29, 2013, the trial court conducted a hearing on the motion at which

Appellee's mother testified, among other things, that the State had been unready for

suppression hearings at least twice. Both times Appellee traveled from Waco, where

she was attending college, to Corpus Christi. The hearings were not held because the

officer did not appear. R.R. 6-7. She testified that when the trial court called the case

for a hearing, the State dismissed. R.R. 7. That was September 15, 2011. Id.

      Trial counsel described the September 15, 2011, hearing to the trial court in

this way:

      And we got here -- and Richa was a good young prosecutor. So we got
      in here and they weren't here. And so, you know, the Judge is like, come
      on, call your first witness. She said, I move to dismiss. The problem is
      that puts the State in the position of being able to grant their own
      continuances, because they can dismiss these cases and re-file them at
      their convenience.

R.R. 14-15.

      The trial court, reviewed the docket sheet from the 2007 information, and



                                           5
stated the case had been set for pretrial hearings five times. R.R. 15.1

      The trial court entered an order dismissing the case with prejudice and

including findings that the officer had purposely absented himself from the September

15, 2011, hearing and that Appellee was prejudiced by the dismissal and refiling.

C.R. 33.

      At no time did the State assert in the trial court that trial courts lack authority

to dismiss cases without consent of the State and it did not object to entry of the trial

court's order dismissing the information with prejudice.

      B. Issue One: Considering Material Outside the Appellate Record

      If there is anything settled in Texas appellate law it is that appeals are based on

the appellate record, not factual assertions made by the parties in their briefs or even

documents and affidavits filed with the appellate court. See e.g., Jack, 149 S.W.3d,

n. 1 at 120 (Appellate courts "may not consider factual assertions that are outside the

record. An affidavit attached to a motion filed in the appellate court is not part of the

appellate record concerning events or actions in the trial court and it cannot be

considered for the truth of the matters asserted." (citations omitted)). Likewise, in

Hernandez, this Court held that scientific articles cited and presented the appellate

court could not be considered in determining whether scientific evidence was

      1
          The trial court stated it was hard to read the docket sheet but that is what it could read. Id.

                                                    6
admissible. The Presiding Judge, writing for the Court, said, "This is swell stuff. The

trial court should have been given this material, and appellant should have been

allowed an opportunity to cross-examine any witnesses who sponsored it. The trial

court hearing is the main event for Daubert/Kelly gatekeeping hearings; it is not a try-

out on the road to an appellate scientific seminar." 116 S.W.3d., at 30.

      In Haitt, the San Antonio Court of Appeals cited Jack, and held "The Court of

Criminal Appeals has held an appellate court may not consider factual assertions that

are outside the record." 319 S.W.3d, at 123. Most recently, albeit in a civil case, the

First Court of Appeals had the same holding in Holland that an appellate court

cannot consider documents attached to an appellate brief but must decide the case on

the record. Slip op., at 6-7.

      In the instant case, over Appellee's objection in her brief, the Court of Appeals

considered factual assertions made by the State in its brief which were not supported

by the record.2 The Court of Appeals incorrectly states that both parties made outside


      2
          Appellant's brief included:

               The State’s brief contains a 4-page section entitled “Statement of Facts,”
      State’s Brief at 7-10. There are only three citations to the record in the statement of
      facts in the State’s brief, all of which come from the Reporter’s Record. State’s Brief
      at 9-10. Appellee is unable to locate portions of the record supporting other factual
      assertions made by the State in its Statement of Facts. Therefore, Appellee moves
      the Court to ignore any statements or assertions of fact made by the State unless they
      are supported by citations to the record. TEX. R. APP. P. 38.1(g).
                                                                                       (continued...)

                                                7
the record factual assertions. Slip op., n. 1 at 2. Every statement of fact contained in

Appellee's brief includes a record citation. The factual assertions made by the State

without citations to the record and adopted by the Court of Appeals included:

1.     “According to the State, the 2007 cause number was set for jury trial fifteen

       times and set for pretrial hearings multiple other times.” Slip Op. at 1.

2.     “The State claims Wyatt had requested at least nine continuances during that

       time, while the State requested at least three.” Slip Op, at 1.

3.     "[B]ased on the briefs of the parties and the clerk’s record submitted for the

       2011 cause number, Wyatt appears to have asked for multiple continuances

       throughout the years her case was pending.” Slip Op, at 9.3

       Appellate courts in Texas review decisions of trial courts. They are not places

to relitigate cases. That is why issues on appeal traditionally begin, "The trial court

erred...." This Court should grant review to determine whether the Court of Appeals

erred in basing its decision on factual assertions in the State's brief and not included

in the record or whether parties may include such factual assertions in appellate briefs

as substitutes for proof to the trial court.

       2
       (...continued)
Appellant's brief at 1-2.

       3
        In fact, the only motions for continuance in the record relate to the 2011 case, not the 2007
case. C.R. 22-24, 25-28, 29-32.

                                                 8
      In this case, the Court of Appeals so departed from the accepted course of

judicial proceedings that this Court should grant review to exercise its power of

supervision. Additionally, the Court should grant review to resolve the split between

the Court of Appeals in the instant case and the San Antonio and Houston courts of

appeals on the issue of taking into account factual assertions made by parties in their

appellate briefs but not included in the appellate record. Finally, this Court should

grant review to consider whether the decision of the Court of Appeals conflicts with

cases such as Jack and Hernandez or whether the Court should re-evaluate its

holdings in that line of cases to allow appellate courts to consider non-record factual

assertions made by the parties in their appellate briefs.

                      C. Issue Two: Addressing All Issues

      The Court of Appeals failed to address two issues of importance to the case:

Whether the State preserved error at the trial court and Appellee's due process claim

raised in her written motion, C.R. 8-9. Rule 47.1 requires appellate courts to address

every issue raised and necessary to the resolution of the case.

      In Gipson, this Court made two holdings in consecutive sentences which the

Court of Appeals ignored in the instant case. The Court wrote:

      A court of appeals must hand down a written opinion that addresses
      every issue raised and necessary to final disposition of the appeal.
      [I]ssues of error preservation are systemic in first-tier review courts;

                                          9
      such issues must be reviewed by the courts of appeals regardless of
      whether the issue is raised by the parties."

383 S.W.3d, at 159 (citations and internal quotation marks omitted). In Keehn, this

Court in a per curiam opinion remanded a case to the court of appeals for violating

Rule 47.1 by not addressing all of the appellant's issues.

      In the instant case, the State made no objection to the trial court's entry of the

motion to dismiss. It did not file a motion for the trial court to reconsider its order.

The State never asserted to the trial court that it lacked the authority to dismiss with

prejudice without the State's assent. The Court of Appeals failed to address the issues

of error preservation by the State and Appellee's due process claim. This Court

should grant review to emphasize that courts of appeals must deal with every issue

before them which is necessary to the resolution of the case.

                        D. Issue Three: Error Preservation

      The State's appellate brief is the first time the State mentioned the trial court's

purported lack of authority to dismiss an information without the State's consent.

Nothing in the appellate record shows the State made that argument or even objected

to the entry of the order under review.

      In the instant case, the Court of Appeals turned Rule 33.1 on its head. Contrary

to this Court's teaching in Alford, it failed to consider error preservation by the losing


                                           10
party in the trial court and required the prevailing party to show she had preserved

error. By doing so, it ignored Alford and the San Antonio Court of Appeals in

Turrubiate, 415 S.W.3d, at 439.4 The action of the Court of Appeals in the instant

case has the effect of emasculating the long-standing holding of this Court and every

appellate court in Texas that a trial judge's ruling will be upheld under any theory of

law supported by the record.

      If a prevailing party in the trial court must preserve error as the Court of

Appeals held in the instant case, a trial court's holding could never be sustained on

a ground not raised in the trial court for a simple reason: If argument was not raised

in the trial court by the prevailing party, no error was preserved and nothing is

presented for review.

      The Court of Appeals decisions creates a sea change in Texas appellate law and

procedure. This Court should grant review to determine whether the Court of

Appeals both ignored its decisions, is in conflict with other courts of appeals and



      4
          The Turrubiate Court wrote:

      The Alford Court held that a court of appeals should consider any legal theory upon
      which the trial court's ruling may be upheld, regardless of whether that argument was
      made at trial, when, as here, the prevailing party in the underlying motion to suppress
      asserts that argument on appeal. Accordingly, we will address the merits of the
      alternative theory the State asserts on appeal-that exigent circumstances regarding the
      safety of the child serves as an alternative basis to uphold the trial court's ruling on
      appellant's motion to suppress.

                                                11
whether this Court should adopt this new theory of jurisprudence for Texas.

                            E. Issue Four: Speedy Trial

      The issue presented to the Court of Appeals was not whether the trial court

erred its ruling on a speedy trial motion. The issue presented was whether a violation

of the Sixth Amendment, U.S. CONST. amend. VI, right to speedy trial was

sufficiently supported by the record to sustain the trial court's ruling for purposes of

Alford.

      The Court of Appeals in its analysis made several errors.

      First, the court asserted that Appellee made the speedy trial claim for the first

time on appeal. Slip op., at 7.

      Second, the court asserted she failed to preserve error. Id. See also Slip op.,

at 8 ("However, 'in order to preserve error for appellate review, a defendant must

make a timely request, objection or motion in the trial court (regardless of whether

or not the error complained of is constitutional).' ").

      Third, its analysis relied upon facts in the briefs of the parties along with the

Clerk's Record on appeal in the instant case. Slip op., at 9.

      Fourth, it included in its analysis continuances sought by Appellee in the 2011

case without analyzing the reasons for delay in the 2007 case . Slip., at 9.

      The first two reasons given by the Court of Appeals for rejecting Appellee's

                                          12
claim the trial court's ruling could be upheld on speedy trial grounds flatly ignore

and/or reject this Court's holdings in Alford as discussed, supra. The Court of

Appeals was on notice about the holding in Alford. Appellee cited and discussed

Alford on page 9 of her appellate brief. It simply chose to ignore this Court's holdings

on error preservation and upholding a trial court's ruling if it can be sustained on any

theory of law supported by the facts.

       The third reason again centers on Issue One raised, supra. It is reliance on

factual assertions made by the State in its appellate brief which were not part of the

record.

       The fourth reason the Court of Appeals gives for rejecting Appellee's claim that

the trial court's decision could be affirmed on a speedy trial theory is that based on

motions for continuance filed in the 2011 case.              It wrote: "Her actions, like in

Henson,5 were not the actions of someone seeking to preserve her right to a speedy

trial." Slip op., at 9.

       This reasoning ignores the fact that Appellee's motion was filed in October

2011, about a month after the State dismissed the 2007 case – a case which had

languished on the trial court's docket for more than four years and which had five

settings for pretrial hearings. The Court of Appeals, while it cited Barker v.

       5
           Henson v. State, 407 S.W.3d 764 (Tex. Crim. App. 2013).

                                               13
Wingo, 407 U.S. 514 (1972), it did not consider or analyze the four-prong balancing

test set out in that case. It did not mention the trial court's finding that Appellee was

prejudiced by the State's actions in dismissing the 2007 information.

       This Court in Alford and State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App.

2006), as well as the Turrubiate Court of Appeals took a highly deferential approach

to review of trial court rulings. The appellate courts should 1) imply fact findings

supporting the trial court's ruling if no findings of fact and conclusions of law are

entered, Alford, 400 S.W.3d, at 929, Kelly, 204 S.W.3d, at 818-19; Turubaite, 415

S.W.3d, at 437. Appellate courts view the record in the light most favorable to the

trial court's ruling, id., and affirm under any theory of law reasonably supported by

the facts, 400 S.W.3d, at 929, 415 S.W.3d, at 437.

       In the instant case, the Court of Appeals not only failed to conduct its review

as commanded by Alford and Kelly. It did not give deference to the trial court's

implied fact findings.6 In fact, it made contrary implied findings as to the 2007 case.

It failed to analyze the alternative speedy trial to see if the record would support a

finding of speedy trial violation.


       6
        Although the State made a request for findings of fact and conclusions of law, C.R. 40-41,
when the trial court failed to enter them, the State took no action. Nothing in the record shows it
followed up its request and it did not ask the Court of Appeals to remand for entry of findings of fact
and conclusions of law. The record also is silent as to whether the State actually made the trial court
aware of its request.

                                                 14
       Appellee asserts that the record contains facts – Mrs. Wyatt's testimony about

multiple pretrial hearings on the 2007 case, the trial court's order to proceed, a

judicial admission by the State that it dismissed the 2007 case due to a missing

witness,7 the trial court's examination of its own records showing five pretrial hearing

settings in the 2007 case – which along with implied findings by the trial court

support a finding that Appellee's Sixth Amendment speedy trial right was violated.

                                  V. CONCLUSION

       In the instant case, the Court of Appeals flipped the requirement that error be

preserved from the appellant to the appellee. It relied on factual assertions in the

State's brief which are not supported by the record. It failed to give deference to the

trial court's implied findings of fact and it failed to properly consider if the trial court

should be affirmed on a theory not asserted in the trial court when that theory is

supported by the record.

       The Court of Appeals gave the State a "do over" on constitutional speedy trial.

It essentially allowed the State to restart the speedy trial calendar by dismissing and

refiling cases. To allow that would essentially repeal the Sixth Amendment right to

a speedy trial.

       This Court should grant review to tell the Court of Appeals that decisions from

       7
           R.R. 12.

                                            15
this Court and the Rules of Appellate Procedure have meaning and that the courts of

appeals are expected to follow them.

      WHEREFORE, PREMISES CONSIDERED, Appellee prays that this Court

grant discretionary review, order full briefs and oral arguments, reverse the Court of

Appeals and affirm the trial court.

                                              Respectfully submitted,
                                              SCHNEIDER & McKINNEY, P.C.



                                              /s/ W. Troy McKinney
                                              W. Troy McKinney*
                                              Texas Bar No. 13725020
                                              E-mail: wtmhousto2@aol.com

                                              Tom Moran
                                              Texas Bar No. 14422200
                                              E-mail: tom6294@aol.com

                                              440 Louisiana, Suite 800
                                              Houston, Texas 77002
                                              (713) 951-9994
                                              Telecopier: (713) 224-6008

                                              Attorneys for Appellee




                                         16
                         CERTIFICATE OF SERVICE

      This is to certify that on December 7, 2015, a true and correct copy of

Appellee’s Petition for Discretionary Review was served on the Nueces County

District Attorney's Office by electronic service to the below email address:

William Ainsworth
Assistant Criminal District Attorney
901 Leopard
Room 206
Corpus Christi, TX 78401
Email: bill.ainsworth@co.nueces.tx.us


                                                    /s/ W. Troy McKinney
                                                    W.Troy McKinney


                      CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that the above brief was

computer generated and contains 3,523 words excluding those portions set out in

TEX. R. APP. P. 9.4(1)(1).




                                                    /s/ W. Troy McKinney
                                                    W. Troy McKinney




                                         17
       Appendix A
Court of Appeals' Opinion
                             NUMBER 13-13-00496-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                          Appellant,

                                           v.

BRITTANY WYATT,                                                               Appellee.


               On appeal from the County Court at Law No. 3
                        of Nueces County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
             Memorandum Opinion by Justice Benavides

      The State of Texas appeals the trial court’s granting appellee Brittany Wyatt’s

motion to dismiss with prejudice. By one issue, the State argues that the trial court erred

in granting the motion without the State’s consent. We reverse and remand.
                                        I.      BACKGROUND

        Wyatt was arrested on January 8, 2007 for driving while intoxicated in Nueces

County, Texas.      She voluntarily consented to a breathalyzer test and the results revealed

a blood alcohol content of .177. Wyatt was charged in cause number 2007-0624-3 on

January 27, 2007 (“the 2007 cause number”). According to the State, the 2007 cause

number was set for jury trial fifteen times and set for pretrial hearings multiple other times.

The State filed a motion to dismiss the 2007 cause number when the arresting officer

involved in the stop failed to appear for a pretrial hearing. The trial court granted the

State’s motion.     At the time of dismissal, the 2007 cause number had been pending for

four years. The State claims Wyatt had requested at least nine continuances during that

time, while the State requested at least three.

        The State re-filed Wyatt’s case on September 20, 2011 under cause number 2011-

5202-3 (“the 2011 cause number”).1 Subsequently, Wyatt filed a “Motion for Sanctions

and/or Suppression of Testimony by Trooper Manuel Castro, Jr.” In her motion, Wyatt

argued that “on two occasions [in the 2007 cause number] the trial court scheduled an

evidentiary hearing, and the trooper was either not available or purposely made himself

unavailable”, that Wyatt had been “financially and emotionally harmed, and re-filing the

case “amounts to prosecutorial abuse.” The order attached to her motion requested that

the trial court grant the motion and dismiss the case with prejudice based on the arresting

officer’s failure to appear, that Wyatt’s due process rights had been violated, further


        1   Although this appeal relates to the 2011 cause number, both parties reference events that
occurred in the 2007 cause number. Wyatt’s counsel urges this court to only review the clerk’s record
submitted for the present case. However, both parties continually reference incidents from the 2007 cause
number in their briefs. We gathered the background information related to 2007 cause number from the
briefs filed by both parties.

                                                   2
prosecution would amount to prosecutorial abuse, the abuse would be cruel and unusual

punishment of Wyatt, and that Wyatt would be denied her right to counsel of her choice

due to the State’s improper dilatory tactics.

       On August 28, 2013, at a pretrial hearing on Wyatt’s motion, Wyatt’s mother,

Paula, testified as to the facts of the underlying case.       Paula testified that Wyatt’s

attorney was prepared to argue the motion to suppress twice in the 2007 cause number

but could not because the State’s witness had failed to appear both times.           On both

occasions, Paula explained that Wyatt traveled from Waco, and her attorney traveled from

San Antonio. The frequent continuances were financially burdensome because Wyatt’s

parents had to pay for Wyatt’s and her attorney’s travel expenses.          Wyatt was also

forced to miss college classes.

       Wyatt’s attorney also argued to the trial court that the State’s ability to dismiss and

re-file suits would eventually deprive Wyatt of her constitutional right to counsel because

she had to re-hire and pay a new retainer fee to her attorney every time her case was

dismissed and reinstated.      Wyatt’s attorney argued that eventually Wyatt would be

unable to afford the attorney of her choice.

       The trial court took the motion under advisement and later ordered a dismissal with

prejudice in the 2011 cause number. This appeal followed.

                       II.   DISMISSAL OF CHARGES BY TRIAL COURT

       By its sole issue, the State asserts the trial court lacked the authority to dismiss

the charges pending against Wyatt without its consent.       In reviewing the dismissal of a

charging instrument,



                                                3
       the appellate court must review the trial court’s ruling under a bifurcated
       standard. The court of appeals must give almost total deference to a trial
       court’s findings of fact that are supported by the record, as well as mixed
       questions of law and fact that rely upon the credibility of a witness.
       However, the court of appeals applies a de novo standard of review to pure
       questions of law and mixed questions that do not depend on credibility
       determinations.

  State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011).

       A.     Applicable Law

       It is a common law rule that “except in certain circumstances, a court does not

have the authority to dismiss a case unless the prosecutor requests the dismissal.”

State v. Johnson, 821 S.W.2d 609, 613 (Tex. Crim. App. 1991) (en banc). There are

certain circumstances where a trial court can dismiss a case without the state’s consent,

“such as when the defendant has been denied a speedy trial, where there is a defect in

the charging instrument, or, pursuant to Article 32.01, when a defendant is detained and

no charging instrument is properly presented.”      Id. at 616, fn. 2 (citing TEX. CODE CRIM.

PROC. ANN. § 32.01 (West, Westlaw through 2013 3d C.S.)).             A trial court can also

dismiss an indictment “to remedy a violation of the Sixth Amendment right to counsel.”

State v. Mungia, 119 S.W.3d 814, 816 (Tex. Crim. App. 2003). For a Sixth Amendment

violation, the trial court can “properly dismiss a charging instrument if ‘a defendant suffers

demonstrable prejudice, or a substantial threat thereof, and where the trial court is unable

to identify and neutralize the taint by other means.’”   Id. (citing State v. Frye, 897 S.W.2d

324, 330 (Tex. Crim. App. 1995)).     However, while a trial court “may dismiss a charging

instrument to remedy a constitutional violation, the dismissal of an indictment is ‘a drastic

measure only to be used in the most extraordinary circumstances.’”               Id. at 817.

“Therefore, where there is no constitutional violation, or where the appellee’s rights were

                                              4
violated but dismissal of the indictment was not necessary to neutralize the taint of

unconstitutional action, the trial court abuses its discretion in dismissing the charging

instrument without the consent of the State.”    Id.

       B.     Discussion

       The trial court held a hearing on August 28, 2013 to address the motion for

sanctions and suppression of testimony Wyatt had filed. Wyatt’s counsel argued the

State’s refiling denied Wyatt of her right to have a lawyer of her choosing and of

prosecutorial misconduct.    However, on appeal, Wyatt additionally argues that the State

did not preserve error to complain about the dismissal by not objecting and for the first

time that Wyatt’s right to speedy trial was violated. Without a showing of the limited

circumstances in which the trial court can dismiss without the State’s consent, this ruling

by the trial court would be in error.     We will address the claims made by Wyatt to

determine if any of the extraordinary circumstances were present.

       1.     Sixth Amendment Right to Counsel

       Wyatt contends that her right to counsel was violated by the State being able to

dismiss and refile cases. Wyatt’s trial counsel argued that the State can essentially grant

their own continuances by dismissing and refiling cases and in essence, deny her right to

have a lawyer that she chooses.         The State argued the Sixth Amendment right to

counsel is not absolute and a defendant is not entitled to a lawyer she cannot afford.

U.S. CONST. AMEND. VI.; Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App. 2003)

       The Sixth Amendment to the United States Constitution “guarantees that ‘in all

criminal prosecutions, the accused shall enjoy the right…to have the Assistance of

Counsel for his defence.’”    Wheat v. U.S., 486 U.S. 153, 158 (1988).       The “right to

                                             5
assistance of counsel contemplates the defendant’s right to obtain assistance from

counsel of the defendant’s choosing”.            Gonzalez v. State, 117 S.W.3d at 837.

However, that right is not absolute.     Id.   “A defendant has no right to an advocate who

is not a member of the bar, an attorney he cannot afford or who declines to represent him,

or an attorney who has a previous or ongoing relationship with an opposing party.”          Id.

In evaluating a Sixth Amendment claim, “the appropriate inquiry focuses on the

adversarial process, not on the accused’s relationship with his lawyer as such.”       Wheat,

486 U.S. at 159 (citing United States v. Cronic, 466 U.S. 648, 657, n. 21 (1984)).

          Wyatt argues that the actions by the State will deprive her of her choice of counsel

because of the expense she must endure.         However, Wyatt is not entitled to an attorney

she cannot afford.       Wyatt’s mother testified that the original trial counsel they hired

charged a large retainer fee and the contract terminated between the parties at the time

of the dismissal. Wyatt never claims she would not be able to afford that attorney’s

services again.      She simply claims that she will have to pay another fee in order to

employ him. This situation does not amount to a denial of her Sixth Amendment right to

counsel, and if she cannot afford him a second time, it is not a denial of her constitutional

rights.    U.S. CONST. AMEND. VI.     Therefore, the trial court was incorrect to grant Wyatt’s

motion on this ground.

          2.     Prosecutorial Misconduct

          Wyatt also claims that the State’s ability to refile a case amounted to prosecutorial

misconduct.      However, in State v. Mason, the Court of Criminal Appeals stated they

“have found no authority permitting a trial court to dismiss a case with prejudice based on

the State’s alleged bad faith or harassment of the defendant.”          State v. Mason, 383

                                                6
S.W.3d 314, 315 (Tex. Crim. App. 2012). In Mason, “neither the trial judge nor appellee

ever alleged the State engaged in acts demonstrating bad faith or prosecutorial

misconduct.”     Id.   Similarly, in Wyatt’s case, she alleges there was prosecutorial

misconduct based on the refiling of her case, but during the pretrial hearing, her trial

counsel states that the allegation is neither directed at the prosecutor who handled the

2007 cause number nor the current prosecutor handling the 2011 cause number. There

was no showing of prosecutorial misconduct other than the allegation made by Wyatt in

her motion, and the trial court should not have granted a dismissal based on prosecutorial

misconduct.

       3.      Speedy Trial Violation

       Additionally, for the first time on appeal, Wyatt makes a claim that the actions of

the State amounted to a violation of her right to a speedy trial.    Id. Under the rules of

appellate procedure, in order for Wyatt to raise this issue on appeal, it must have been

made and ruled on by the trial court.     TEX. R. APP. P. 33.1.     (West, Westlaw through

2013 3d C.S.). However, even if it had been properly preserved for our review, we hold

that Wyatt’s right to a speedy trial was not violated.

       The Sixth Amendment also guarantees the accused right to a speedy trial.       U.S.

CONST. AMEND. VI.      The factors for the trial court to consider, commonly known as the

Barker factors, used in analyzing a speedy trial violation are: (1) “whether delay before

trial was uncommonly long”, (2) “whether the government or the criminal defendant is

more to blame for that delay”, (3) “whether, in due course, the defendant asserted his

right to a speedy trial”, (4) “whether he suffered prejudice as the delay’s result.”

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

                                              7
v. Wingo, 407 U.S. 514, 530 (1972)).      Courts must analyze the claims “by first weighing

the strength of each of the above factors and then balancing their relative weights in light

of ‘the conduct of both the prosecution and the defendant.’”      Id. However, “in order to

preserve error for appellate review, a defendant must make a timely request, objection,

or motion in the trial court (regardless of whether or not the error complained of is

constitutional).”      Henson v. State, 407 S.W.3d 764, 767 (Tex. Crim. App. 2013).

Speedy trial must be complained about in the trial court in order to “allow the trial court to

develop the record sufficiently for a Barker analysis.”    Id. at 769. It is the “accused’s

burden to develop a record that a speedy trial violation occurred and that it was asserted

at the trial court.”    Grimaldo v, State, 130 S.W.3d 450, 453 (Tex. Crim. App.—Corpus

Christi 2004, no pet.).     “Mere allegations in an appellate brief are not enough.”       Id.

Speedy trial rights are “different from other constitutional rights because the depravation

of the right can benefit the defendant” and as such the demand should be “unambiguous”

when made in the trial court.     Id. at 766, 769. The Henson court explained:

       As has been discussed, the deprivation of a speedy trial often can benefit
       the appellant. Without a requirement of preservation, a defendant would
       have great incentive not to insist upon a speedy trial and then argue for the
       first time on appeal that the prosecution should be dismissed because of
       delay. The requirement of preservation forces the defendant to pick one
       strategy. He can either fail to insist upon a speedy trial and possibly reap
       benefits caused by the delay, or he can insist on a prompt trial, and if it is
       not granted, argue for a dismissal. He may not do both.

Id. at 769.   In Henson, the defendant “did not file a speedy trial motion, did not request

a hearing on the delays, and explicitly agreed to each and every reset.”        Id. The trial

court found that those were “not the actions of someone seeking to preserve and protect

his right to speedy trial.” Id.


                                              8
        Wyatt’s case is analogous to Henson.              Although Wyatt’s case languished on the

docket for four years, she never raised a violation of speedy trial with the trial court.

Additionally, based on the briefs of the parties and the clerk’s record submitted for the

2011 cause number, Wyatt appears to have asked for multiple continuances throughout

the years her case was pending.              Her actions, like in Henson, are not the actions of

someone seeking to preserve her right to speedy trial. Granting a dismissal based on a

speedy trial violation was improper in the present case.

        In analyzing the grounds contained with the trial court’s order to dismiss, we find

that none of them warrant dismissal by the trial court without the State’s consent.2

                                           III.    CONCLUSION

        We reverse the trial court’s judgment and remand the case for further proceedings

consistent with this opinion.



                                                                   GINA M. BENAVIDES,
                                                                   Justice


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

Delivered and filed the
4th day of June, 2015.




        2We find that the due process violation referred to in the trial court’s order is contained within the
Sixth Amendment violation allegations of speedy trial and right to counsel. As such, we do not need to
separately address that claim.

                                                      9
