             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-17-00319-CR
      ___________________________

 RODNEY ADAM HURDSMAN, Appellant

                     V.

           THE STATE OF TEXAS


   On Appeal from the 271st District Court
            Wise County, Texas
         Trial Court No. CR17817


 Before Sudderth, C.J.; Meier and Gabriel, JJ.
Memorandum Opinion by Chief Justice Sudderth
                          MEMORANDUM OPINION

                                   I. Introduction

      Appellant Rodney Adam Hurdsman appeals his conviction of theft of more

than $20,000 but less than $100,000 of property, for which he was sentenced to

75 years’ confinement. See Act of May 29, 2011, 82nd Leg., R.S., ch. 1234, § 21, 2011

Tex. Sess. Law Serv. 3309, 3310 (amended 2015, 2017) (current version at Tex. Penal

Code Ann. § 31.03(e)(5) (West Supp. 2018)). In a single issue, Hurdsman argues that

his Sixth Amendment right to a speedy trial was violated, complaining that the State

made no attempt for three-and-a-half years to return him to Wise County for trial.

We affirm.

                                   II. Background

      In February 2014, after various items were stolen from the Enbridge Energy

Partners gas-processing plant, Hurdsman was arrested and released on bond. In June

2014, he was indicted.

      The indictment alleged that Hurdsman had unlawfully appropriated catalysts,

tools, and equipment. One of the witnesses described the catalysts used by the facility

as large, round objects “made out of different kinds of precious metals,” including

platinum and titanium, which “take[] raw exhaust and . . . burn[] the raw exhaust so

. . . emissions come out clean,” similar to the way that a catalytic converter functions

in an automobile. The indictment alleged that Hurdsman stole five catalysts, in



                                           2
addition to various tools and equipment. The catalysts ranged in value from $1,500 to

$8,245 each.

       According to Hurdsman, after he was arrested on September 29, 2014, he was

“continuously incarcerated, and held on the arrest warrants and charges in this case, as a

pre-trial inmate.” [Emphasis added.] But this contention is undermined by the

motion to withdraw filed by his retained counsel, Jim Shaw, just days after

Hurdsman’s arrest. In that motion, Shaw represented to the court that Hurdsman had

been taken into federal custody.1 The trial court allowed Shaw to withdraw on

October 7, 2014.

       Shaw died in December 2016. See Mitch Mitchell, Fort Worth lawyer Jim Shaw

fought cancer as hard as he fought for his clients, Fort Worth Star-Telegram (Dec. 28, 2016,

9:48 PM), https://www.star-telegram.com/news/local/obituaries/article123467179.

html (last visited Oct. 30, 2018).

       Approximately six months after Shaw’s death, Hurdsman filed a declaration of

inability to hire counsel, and the trial court appointed counsel for him. A month later,

Hurdsman invoked his right to self-representation when the trial court refused to


       Shaw attached to his motion an article dated September 30, 2014, which stated
       1

that Hurdsman and his wife had been arrested in Louisiana in connection with a June
2014 bank robbery in Arkansas. During one of his hearings, Hurdsman admitted that
he was arrested in Shreveport on September 29, 2014. According to Hurdsman, he
was detained for 30 days in Louisiana before being taken to Benton, Arkansas, where
he spent five months. Hurdsman stated that the Arkansas charges were dropped, but
then he was charged and confined in Williamson County for 28 months before the
Williamson County charges were dismissed.

                                             3
substitute Hurdsman’s preferred attorney as his appointed counsel.2 The State filed a

notice of enhancement five days later, seeking to enhance the offense’s punishment

range from the third-degree felony punishment range (two to ten years’ confinement

and up to a $10,000 fine, see Tex. Penal Code Ann. § 12.34 (West 2011)), to that of a

habitual felon under penal code section 12.42(d), based on three theft-related

convictions from Tarrant County in 1997 and a 2002 federal conviction for bank

robbery. See id. § 12.42(d) (West Supp. 2018) (providing for an enhanced punishment

range of 25 to 99 years’ confinement based on prior felony convictions).

      On August 17, 2017, the trial court held a hearing and granted Hurdsman’s

pro se motion to approve funds for an investigator. During the hearing, Hurdsman

claimed that he had “kind of invoked [his] right to having a speedy trial” in 2014 prior

to plea negotiations and before the “main investigator here caused [him] to be

arrested in Shreveport, Louisiana.” Hurdsman stated that after that, Arkansas “g[o]t

[him],” and then “Williamson County[, Texas] . . . put a charge on [him].” The trial

judge told Hurdsman that he would have a standby counsel and that Hurdsman could

ask the standby counsel to take over at any time.          The trial court also heard

Hurdsman’s pro se motion to dismiss and denied it. During the hearing, Hurdsman




      2
        Hurdsman had prior experience representing himself. See Hurdsman v. Mayo,
No. 02-17-00099-CV, 2018 WL 3060116, at *1 n.2 (Tex. App.—Fort Worth June 21,
2018, no pet.) (mem. op.) (listing several of Hurdsman’s pro se civil cases brought in
federal court).

                                           4
expressed his desire for more time to complete discovery and have his investigator

investigate the facts.

       Within two weeks, Hurdsman again requested appointed counsel. 3 The trial

court held a hearing on August 29, 2017, and appointed counsel for him. On the

record, the trial judge expressed his belief that Hurdsman’s request for counsel was

“only an attempt to manipulate and delay the trial”; Hurdsman assured the trial judge

that he was not trying to delay the trial. During the August 29 hearing, Hurdsman’s

newly appointed counsel, who had previously been Hurdsman’s standby counsel,

informed the trial court that Hurdsman had asked that counsel request a motion for

continuance “on the suppression issue.” The trial court denied the request.

       On September 7, 2017, Hurdsman’s appointed counsel filed a supplemental

motion to dismiss, renewing Hurdsman’s speedy trial complaint and attaching

Hurdsman’s handwritten affidavit in which Hurdsman alleged that he had requested a

speedy trial since his arrest. The motion was heard on September 11.

       3
        In his new request for appointment of counsel, Hurdsman referred to an
“incident” in the courtroom involving his previous appointed counsel. The incident
was referenced at the August 29, 2017 hearing and at the pretrial hearing on
September 11, 2017. At the August 29 hearing, the trial court stated that Hurdsman
had alleged that his previous appointed counsel had assaulted him in the courtroom in
front of 40 or 50 people on August 3. Hurdsman agreed that he had made this
allegation and claimed that three of his family members in the courtroom had seen it.

       At the September 11 pretrial hearing, when the trial court recollected that
Hurdsman had accused his previous appointed counsel of assaulting him, Hurdsman
interjected, “Your Honor, I -- there was no assault.” The trial judge replied, “Well, I
know there wasn’t an assault . . . because I was here in the courtroom [when it would
have allegedly happened].”

                                          5
      At the hearing Hurdsman’s affidavit was not offered into evidence, but the

prosecutor pointed out to the trial court that while Hurdsman had been continually in

custody since September 2014, Hurdsman had been held “not on these charges but

on charges that arose from crimes that were committed in Benton, Arkansas, and

Round Rock, Texas.”       The prosecutor further argued that prior to July 2017,

Hurdsman had not asserted any right to a speedy trial and pointed out that at a

previous hearing, Hurdsman had requested a continuance.4 The trial court denied

Hurdsman’s motion, and his trial began the next day.

      A jury found Hurdsman guilty, found the State’s enhancement and habitual

allegations true, and assessed his punishment at seventy-five years’ confinement. The

trial court sentenced him accordingly.

                                  III. Speedy Trial

      In reviewing the trial court’s ruling on an appellant’s 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); Murphy v. State, 280 S.W.3d 445, 452 (Tex.

App.—Fort Worth 2009, pet. ref’d).



      4
       At the August 17, 2017 hearing, the prosecutor stated that Hurdsman had
asked for a continuance “in open court” that morning, and the trial judge stated,
“Yeah, I know he did. I mean, he didn’t ask for it, but I got the idea that he wanted
one.” Later during the hearing, Hurdsman expressed his desire for additional time for
discovery.

                                          6
       In determining whether an accused has been denied his Sixth Amendment right

to a speedy trial, we must use a balancing test in which the conduct of both the

prosecution and the defendant are weighed. Dragoo v. State, 96 S.W.3d 308, 313 (Tex.

Crim. App. 2003) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192

(1972)). The factors to be weighed include, but are not limited to

            • the length of the delay,

            • the State’s reason for the delay,

            • the defendant’s assertion of his speedy trial right, and

            • the prejudice to the defendant resulting from the delay.

Id. (citing Barker, 407 U.S. at 530, 92 S. Ct. at 2192). Yet no single factor is necessary

or sufficient to establish a violation of the right to a speedy trial. Id. (citing Barker, 407

U.S. at 533, 92 S. Ct. at 2193); see Hopper v. State, 520 S.W.3d 915, 923–24 (Tex. Crim.

App. 2017) (observing that the “speedy-trial right is amorphous, slippery, and

necessarily relative” (quoting Vermont v. Brillon, 556 U.S. 81, 89, 129 S. Ct. 1283, 1290

(2009))).

A. Factors

       The Barker balancing test also imposes dual burdens. The State has the burden

of justifying the length of delay, while the defendant has the burden of proving the

assertion of the right and showing prejudice. See Barker, 407 U.S. at 531, 92 S. Ct. at

2192. The defendant’s burden of proof varies inversely with the State’s degree of



                                              7
culpability for the delay. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).

Thus, the greater the State’s bad faith or official negligence and the longer its actions

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

asserting his right to a speedy trial. Id. at 280–81.

       Review of the individual Barker factors necessarily involves fact determinations

and legal conclusions, but the balancing test as a whole is a purely legal question. Id.

at 282; see also Henson v. State, 407 S.W.3d 764, 769 (Tex. Crim. App. 2013) (observing

that at least two of the Barker factors—the reason for the delay and the prejudice to

the accused—are fact-specific inquiries), cert. denied, 571 U.S. 1141 (2014). Courts are

directed to apply the 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. Cantu, 253 S.W.3d at 281. We

must also be mindful that the constitutional right is that of a speedy trial, not dismissal

of the charges. Id.

       1. Length of the Delay

       The length of the delay is measured from the time that the defendant is

arrested or formally accused, and a speedy trial claim will not be heard until the

passage of a period of time that is, on its face, unreasonable under the circumstances.

Dragoo, 96 S.W.3d at 313–14. In general, the delay must approach a year to be

unreasonable enough to trigger the inquiry. Id. at 314; see also Hopper, 520 S.W.3d at

924 (explaining that the length of delay is a double-inquiry: whether the delay is

                                             8
sufficiently long to trigger further analysis and to what extent it stretches beyond the

triggering length).

       Hurdsman was arrested in February 2014 and was indicted for the offense in

June 2014. His trial began on September 12, 2017, over three years later. Therefore,

this factor weighs in favor of finding a violation of his speedy trial right. Dragoo, 96

S.W.3d at 314 (noting that the delay must stretch beyond the bare minimum needed

to trigger judicial examination of the claim).

       2. Reason for the Delay

       When considering the reason for the delay, different weights should be

assigned to different reasons because some reasons are valid and serve to justify

appropriate delay. Id. While in the absence of an assigned reason for the delay a

court may not presume either a deliberate attempt on the State’s part to prejudice the

defense or a valid reason for the delay, the court nevertheless must determine whether

the State or the defendant is more to blame for the delay. Id.; see Hopper, 520 S.W.3d

at 924. The State’s deliberate delay to hamper the defense or to gain a tactical

advantage in the defendant’s case is weighed heavily against the State, while more

neutral reasons, such as negligence or overcrowded courts, weigh against the State,

but less heavily. Hopper, 520 S.W.3d at 924. Delay caused by the defense weighs

against the defendant. Id.

       The prosecution of a defendant on other charges may be a valid reason for a

delay in bringing him to trial, but the State must offer argument and proof to sustain

                                            9
its burden on this factor.    McIntosh v. State, 307 S.W.3d 360, 367 (Tex. App.—

San Antonio 2009, pets. ref’d) (mem. op.) (citing Dragoo, 96 S.W.3d at 314 n.4; Easley

v. State, 564 S.W.2d 742, 745 (Tex. Crim. App. [Panel Op.] 1978)).5 Similarly, upon

the demand of a federal prisoner facing state charges, “Texas ha[s] a constitutional

duty to make a diligent, good-faith effort to bring him before the [state] court for

trial.” Smith v. Hooey, 393 U.S. 374, 381–83, 89 S. Ct. 575, 578–79 (1969) (observing

that upon the prisoner’s motion for a speedy trial, the State could have issued a writ

of habeas corpus ad prosequendum for the federal bureau of prisons to make him

available for prosecution). But cf. Hopper, 520 S.W.3d at 926–27 (holding that Smith

was not on point when appellant made no demand for a speedy trial in his Texas case

while he was incarcerated out-of-state, particularly when Smith preceded the Interstate

Agreement on Detainers (IAD)).

      Hurdsman alleges that the State deliberately delayed his prosecution, arguing

that “the evidence and history of events strongly suggests that the State voluntarily

elected to forestall prosecution in the instant matter pending resolution of other

charges pending against [him].” Hurdsman also asserted in his handwritten affidavit

attached to his attorney’s supplemental motion to dismiss that he had repeatedly

requested a speedy trial since his arrest and complained that he was “continuously

incarcerated” after his September 29, 2014 arrest. But his affidavit was not offered

      5
       In McIntosh, the court noted that the State offered no proof regarding a
pending felony charge and “did not attempt to explain how a pending case that was
dismissed justified any delay.” 307 S.W.3d at 367–68.

                                          10
into evidence at the hearing, and the record shows that he did not raise his speedy trial

complaint until almost three years later, when his pro se motion to dismiss and his

supplemental motion to dismiss were filed. Cf. Smith, 393 U.S. at 381–83, 89 S. Ct. at

578–79. At the hearing, Hurdsman offered no testimony to contradict the record or

the State’s assertion that he did not raise his speedy trial request until 2017.

       Beyond Hurdsman’s speculation that the State delayed bringing him to trial so

that it could use the other pending charges against him, nothing on this record

indicates that the State acted in bad faith. 6 On the other hand, the State offered no


       6
         In his affidavit, Hurdsman asserted that the prosecutor had “stepped aside and
allowed another jurisdiction in the State of Texas to try and prosecute criminal
offenses against [him] that . . . were brought by indictment on May 19, 2015, almost a
full year after the indictment in this case.” He complained that only after those cases
were dismissed did the “Wise County District Attorney seek to hurry and bring [him]
to trial on this case at this very late date.”

       Hurdsman provided nothing to show that the other cases had been dismissed
and provided no other details to support his allegations of bad faith. He offered no
evidence at the hearing to support this complaint or his assertion that he had initially
been offered a plea deal of 18 months’ confinement in state jail in 2014 and that the
State’s new plea offer was 40 years’ confinement, other than the following dialogue
during the hearing between his counsel and the trial judge:

             [Defense counsel]: And I’ll also point out that prior to his being
       picked up there was an 18-month offer, and he was prejudiced in that
       respect that he obviously is now facing 25 to life had this proceeded --

             THE COURT: I presume he refused every offer that they made
       him because nothing has happened.

                [Defense counsel]: Well, actually, your Honor, my understanding
       -- I’ll represent to the Court I think he had intended to accept the offer,
       but then he picked up the additional charge --

                                            11
argument or proof at the hearing on Hurdsman’s motion to sustain its burden of

showing a valid reason for the delay. Although Hurdsman was confined in federal

prison instead of another state’s prison, both parties had the equal ability to act to

bring the case to a speedier resolution and accordingly are equally at fault. See Hopper,

520 S.W.3d at 918, 926–27 (holding that “because the defendant and the State had an

equal ability to bring the case to a speedy resolution by invoking the IAD, both parties

are equally at fault under the reasons-for-delay factor,” which consequently did not

weigh against either party). But cf. McCain v. State, No. 02-17-00210-CR, 2018 WL

3059964, at *10 (Tex. App.—Fort Worth June 21, 2018, no pet.) (mem. op., not

designated for publication) (“McCain also relies on his lengthy pretrial confinement as

evidence of prejudice. But as the State argues, the record shows that in October 2016,

McCain was sentenced to five years’ confinement in another case, indicating that he

would have remained confined in any event.”).

      3. Defendant’s Assertion of His Right

      Although a defendant’s failure to assert his speedy trial right does not amount

to a waiver of that right, failure to assert the right makes it difficult for him to prove

that he was denied a speedy trial because his lack of a timely demand indicates



             THE COURT: Yeah, I know.

             [Defense counsel]: -- and his attorney didn’t do it.

             THE COURT: Those kinds of things usually make a difference.

                                           12
strongly that he did not really want a speedy trial and was accordingly not prejudiced

by the lack of one. Dragoo, 96 S.W.3d at 314. And the longer the delay, the more a

defendant’s inaction weighs against him. Id.; see Balderas v. State, 517 S.W.3d 756, 771

(Tex. Crim. App. 2016) (observing that from 2009 to 2013, defense counsel

consistently sought additional time for investigation and negotiation and did not assert

the right to a speedy trial until after a jury had been selected in 2014), cert. denied, 137

S. Ct. 1207 (2017). Likewise, filing for a dismissal instead of a speedy trial generally

weakens a speedy trial claim because it shows a desire to have no trial rather than a

speedy one. See Murphy, 280 S.W.3d at 454. Thus, if a defendant fails to first seek a

speedy trial before seeking dismissal of the charges, he should provide cogent reasons

for this failure. See id.

       Hurdsman elected to file a motion to dismiss rather than a motion for a speedy

trial, and he did so without stating a reason—cogent or otherwise—for the choice he

made. See id. Further, as acknowledged by the trial court at the September 2017

hearing on his motion, Hurdsman requested a continuance—or at least had requested

more time—less than a month before his trial date. Accordingly, this factor weighs

against finding a violation of Hurdsman’s speedy trial right.

       4. Prejudice to Defendant Resulting from the Delay

       We must assess this factor in light of the interests that the speedy trial right was

designed to protect:         (1) prevention of oppressive pretrial incarceration;

(2) minimization of the accused’s anxiety and concern; and (3) limitation of the

                                            13
possibility that the accused’s defense will be impaired. Dragoo, 96 S.W.3d at 315. The

last item is the most serious because a defendant’s inability to adequately prepare his

case skews the fairness of the entire system.          Id.   But because excessive delay

presumptively compromises the reliability of a trial in ways that neither party can

prove—or for that matter, identify—affirmative proof of particularized prejudice is

not essential to every speedy trial claim.       Id.    However, this “presumption of

prejudice” diminishes when the defendant acquiesces in the delay. Id.

      Hurdsman argues that the delay (1) deprived him of his choice of counsel

because his counsel died during the case’s pendency, (2) caused his pretrial

incarceration to exceed the State’s initial plea-bargain offer, (3) allowed one of his co-

defendants, James Capers, to relocate “to somewhere in Arkansas” and thus become

“no longer available to be interviewed and testify,” (4) prevented him from locating

one of the State’s investigators, and (5) allowed the State to lose crime scene

photographs taken of the stolen property.7

      First, the record reflects that Shaw, Hurdsman’s retained counsel, withdrew on

October 7, 2014, after Hurdsman was taken into federal custody in Louisiana on an

unrelated bank robbery charge. Accordingly, Shaw’s unfortunate death over two years


      7
       Hurdsman argues on appeal that the delay caused him severe anxiety, caused
him to miss the birth of his son, caused him to be denied treatment for mental health
issues—schizophrenia, depression, and anti-social disorder—during his 35 months of
incarceration, and deprived him of the ability to financially support his family while
incarcerated. But these assertions are found only in Hurdsman’s affidavit, which was
attached to his supplemental motion but not offered into evidence at the hearing.

                                           14
later, in December 2016, could not have deprived Hurdsman of his choice of counsel,

particularly when Hurdsman did not seek any appointment of counsel for two years

after Shaw’s withdrawal and for several months after Shaw’s death.

      And while Hurdsman complains that during the delay, Capers “relocated to

somewhere in Arkansas,” rendering Capers unavailable for interview and testimony,

the record during the punishment phase of trial reveals that Capers was actually

“relocated” to a federal penitentiary for bank robbery. Furthermore, Hurdsman fails

to explain why Capers’s absence from the state would have prevented Capers from

testifying—telephonically or otherwise—in the instant trial, or what Capers’s

testimony would have been.

      With regard to his allegation of prejudice caused by the inability to locate John

Pettit, a state investigator, Hurdsman did not specify at the speedy trial hearing what

Pettit’s testimony would have been. Nor did he recite or describe any due diligence

used in attempting to locate Pettit. See Phipps v. State, 630 S.W.2d 942, 947 (Tex. Crim.

App. [Panel Op.] 1982) (stating that before the contention that undue delay made

defendant unable to locate witnesses will amount to “some showing of prejudice,”

defendant must “show that the witnesses were unavailable, that their testimony might

be material and relevant to his case, and that he has exercised due diligence in his

attempt to find them and produce them for trial”); Harrison v. State, 282 S.W.3d 718,

722 (Tex. App.—Amarillo 2009, no pet.) (“To establish particularized prejudice based

on an unavailable witness, a defendant must present proof both of the efforts made to

                                           15
locate the witness and that the witness would have benefitted his defense.”). But cf.

Puckett v. State, 279 S.W.3d 434, 441 (Tex. App.—Texarkana 2009, no pet.) (holding

that appellant showed prejudice associated with the delay when he “provided

testimony about the loss of witnesses who could apparently, from their

contemporaneous reports to the police, have provided testimony substantially at odds

with the State’s theory of the assault”).

       As to Hurdsman’s argument that evidence was lost as a result of the delay,

Hurdsman fails to demonstrate that the loss of the photographs he complains of

actually hindered, rather than aided, the defense. At trial, Hurdsman’s counsel used

the lack of photographic evidence to raise the issue of value by questioning whether

the stolen catalysts had been new or refurbished.

       Wise County deputies had photographed the property that was recovered

before returning the property to Enbridge, but the photographs were no longer

available because a computer virus had infected the Sheriff’s office computers,

affecting multiple cases.     Accordingly, the State was forced to rely on witness

testimony and related documents to prove the value of the stolen property.8

       It was undisputed that on February 24, 2014, Enbridge employee Darrell

Jacobson reported the theft and gave former Wise County Sheriff’s Deputy

Christopher Hodges, the responding patrol officer, a list of the items that were


       Hurdsman was charged with committing theft of property worth $20,000 to
       8

under $100,000.

                                            16
missing and his approximations of their value. Sergeant James Mayo, an investigator

in the Wise County Sheriff’s Office Criminal Investigations Division and the primary

investigator on the Enbridge theft, testified that he made no effort to ascertain the

stolen items’ value beyond what Jacobson had told him.

      Jacobson testified that the station did not maintain a written inventory, that he

had made the list from memory rather than consulting Enbridge’s invoices for the

items, and that to the best of his knowledge, all of the catalysts that had been listed as

stolen had been new. But Jacobson also testified that after 2014, Enbridge had started

buying refurbished catalysts9—catalysts that had been washed out—if they were still

good, although he could not say whether a refurbished catalyst would be less

expensive than a new one. But he did testify that refurbished catalysts were not

returned in boxes, and that all of the catalysts that had been returned to Enbridge

after the theft had been in boxes, signifying to him that they were new rather than

refurbished.

      Shane Stoff, an area service manager for the company formerly known as

Exterran—Hurdsman’s employer at the time of the theft—testified that some

refurbishing companies returned washed catalysts in boxes. He also expressed the




      9
       On the other hand, Randall Buckner, Enbridge’s systems supervisor and
Jacobson’s supervisor, said that the practice of refurbishing catalysts did not start until
2015 or 2016, and to his knowledge, the practice had not started at the time of the
offense in February 2014.

                                            17
opinion that a washed catalyst could hold the same value as a new catalyst, depending

on the precious metals it contained.

      Jacobson also testified that, in hindsight, some of the catalyst sizes he had listed

in the information that he gave to the Sheriff’s office had been incorrect and the value

numbers for some of them had not been entirely correct because he had been listing

them from memory and not on the basis of written records. And he agreed that

three-and-half years after the fact, he could not provide a more accurate list and that

the prices he had given were estimates for replacement value and not the catalysts’ fair

market value or what they would have been worth after refurbishment. Buckner, who

approved the invoices for ordering catalysts, corrected some of the values in the

Jacobson list during his testimony.

      The trial court admitted the Jacobson list into evidence over Hurdsman’s

objection. The trial court also admitted into evidence the inventory list of property

that was returned to Enbridge by the Sheriff’s office.

      While it may be fairly argued that the delay in trying Hurdsman allowed a

computer virus to destroy photographs of the stolen property, it is not so apparent

that the loss of the photographs hindered Hurdsman’s defense. It could be equally

argued that the situation worked to Hurdsman’s advantage. Because of the computer

virus and corresponding absence of photographs of the stolen property, his counsel

was able to more vigorously cross-examine the State’s witnesses about the property’s

value and, during closing arguments, to highlight the deficiencies in their

                                           18
testimonies, 10 impugn the efficacy of the theft investigation, and argue for a verdict on

the lesser-included offense of theft of property worth $1,500 to under $20,000. 11 To

the extent that Hurdsman suffered any prejudice from the loss of the photographic

evidence, however, this factor weighs slightly in his favor. See Dragoo, 96 S.W.3d at

315.

       As to Hurdsman’s observation that loss of the photographic evidence led to his

plea offer being increased from eighteen months’ confinement to forty years’

confinement,12 the record does not support indulgence in such speculation. Outside

of Hurdsman’s handwritten affidavit, which was not admitted into evidence, the

record provides no insight into the circumstances surrounding the State’s plea offers.

And because the record reflects other convictions that preceded this 2014 theft by at

least a decade, it is equally plausible that the alleged increase in the State’s plea offer




        During closing argument, Hurdsman’s counsel argued that while there were
       10

voluminous exhibits, “what we don’t have, obviously, is one good picture of any one
of those catalysts that was taken,” criticized the police work as “a little bit sloppy,”
argued that the witnesses testifying about the catalysts’ value over three years before
was “their best guess” rather than proof, and lambasted Sergeant Mayo for not
backing up the digital photos.

        Hurdsman does not challenge the values given for the non-catalyst stolen
       11

property, which totaled $9,977, nor does he challenge the sufficiency of the evidence
to support his conviction.
       12
         In his brief, Hurdsman complains, “When the State had the pictures it offered
eighteen (18) months[;] when the pictures were no longer available the offer rose to
thirty (30), then forty (40) years.”

                                            19
could have been based on Hurdsman’s criminal record rather than the absence of

photographs of the stolen evidence.

      Finally, because the evidence at trial conclusively showed that Hurdsman had

committed the theft, Hurdsman’s claim that his defense was impaired by the delay

becomes further attenuated. See id. Surveillance camera photos of the theft that

showed Hurdsman perpetrate the offense at the Enbridge facility were admitted into

evidence and published to the jury, and Hurdsman’s confession, given a few days after

his arrest in February 2014, was also admitted into evidence and published to the jury.

In the 13-minute recording, Hurdsman attempted to cut a deal by seeking to work off

his anticipated sentence by flipping on other thieves in the area, admitted that

everything found on the trailer attached to his truck had been stolen, and explained

that he had forgotten that there were cameras at the Enbridge facility.

B. Analysis

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

violation of the right to a speedy trial. While the delay may have been excessive,

Hurdsman could have urged the State to bring him to trial sooner, but his focus was

on dismissal, not a speedy trial. Moreover, the record and his reply brief in this court

demonstrate his acquiescence in the delay by reflecting that he did not assert his right

to a speedy trial until his transfer to Wise County in 2017—three years after he was

indicted. And the record does not reflect such prejudice from the delay that his

defense was impaired. We overrule Hurdsman’s sole issue.

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                                 IV. Conclusion

      Having overruled Hurdsman’s sole issue, we affirm the trial court’s judgment.

                                                    /s/ Bonnie Sudderth

                                                    Bonnie Sudderth
                                                    Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: November 8, 2018




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