


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-09-00244-CR
 
Herman P. Gullatt, Jr.,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 

From the 13th District
Court
Navarro County, Texas
Trial Court No. 31,934-CR
 

O p i n i o n





 
            Appellant was convicted by a
jury of the felony offense of possession of methamphetamine in an amount of
over 1 gram but less than 4 grams with intent to deliver.  Tex. Health & Safety Code Ann. §
481.112(a), (c) (West 2010).  The State also alleged that appellant had two
prior felony convictions. Tex. Penal
Code Ann. § 12.42(d) (West 2011).  Appellant pled true to these
enhancement allegations.  Following a punishment hearing, the trial court found
the enhancement paragraphs to be true and assessed appellant’s punishment at 60
years in prison.  Appellant appeals.
            In eight issues, appellant
complains that the evidence was both legally and factually insufficient, trial
counsel rendered ineffective assistance, the drug evidence should have been
suppressed, the jury should have been instructed on the legality of the search,
the trial court improperly amended the indictment, the jury’s verdict
improperly convicted appellant of an offense not charged and that he was denied
his right to a speedy trial and even to present evidence regarding his speedy
trial motion.  We overrule these issues and affirm the conviction.
Background
Facts
            During the early morning
hours of February 24, 2008, two Kerens Police Department officers observed a
white pickup truck parked just off the highway at the entrance of a long
residential driveway. They stopped to investigate.  As they approached, they
noticed the defendant in the driver’s seat.  After the defendant rolled down
the window, Officer Chamblee observed blood on the inside of the driver’s
door.  He then asked the defendant to exit the vehicle and for some
identification.  The defendant went through items in both the front and back
seats before he finally exited the vehicle and produced some identification. 
The defendant then got back into his vehicle, rolled up the windows, and locked
the doors.  Officer Chamblee eventually was able to talk the defendant out of
his vehicle where the defendant refused to be patted down and became
argumentative.  The officer called for backup.  At this time, the dispatcher
informed Chamblee that appellant had an outstanding arrest warrant for a
traffic offense.  When the backup officers arrived, appellant was patted down,
handcuffed, and placed under arrest for the traffic warrant.
            Officer Chamblee inspected
the back seat area of his patrol car just as he had done at the beginning of
his shift and after he transported an earlier prisoner.  On all three
occasions, the back seat area was clean and free of contraband.  He placed
appellant in the back seat of his patrol car, transported him to jail, and
turned him over to the jail personnel.  Chamblee then inspected the back seat
area of his patrol car.  He found two baggies which laboratory analysis later
determined contained 3.5 grams of methamphetamine.  Chamblee seized the baggies,
went into the jail, and observed the jailers when they found two baggies of
white powder in appellant’s mouth.  The white powder in those baggies was
determined not to be an illegal substance but all four baggies were similar.
            At trial, Elmer Tanner and
Stan Farmer both testified they were experienced law enforcement officers with
the majority of their careers in narcotics.  They both gave their expert
opinion that based on the quantity of methamphetamine, the number of baggies,
and other facts in the case, appellant’s possession was with the intent to
deliver.
SUFFICIENCY OF THE EVIDENCE
Appellant’s first two issues argue that
the evidence was both legally and factually insufficient to support the
conviction.  The “factual insufficiency” issue was premised on the Court of
Criminal Appeals’ holding in Clewis v. State, 922 S.W.2d 126 (Tex. Crim.
App. 1996).  Since appellant’s brief was filed, Clewis was overruled.  Brooks
v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).  Under Brooks, the
dual concepts of “factual insufficiency” and “legal insufficiency” are now a
single “sufficiency” standard, as was articulated by the United States Supreme
Court in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979).  Under that standard, when reviewing the sufficiency of the
evidence, we look at all the evidence in the light most favorable to the
verdict in order to determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.  Id.
at 319.
            Appellant presents a
three-pronged argument about the sufficiency of the evidence.  First, there are
insufficient affirmative links to actually tie him to the methamphetamine. 
Second, the overall evidence does not support the “with intent to deliver”
element.  Finally, the “chain of custody” concerning the seized evidence was so
deficient that it has “no legal weight at all.”
Links
            The evidence linking
appellant to the methamphetamine consisted of Officer Chamblee’s testimony that
he had searched the back of his patrol car both after he had transported his
last prisoner and immediately before placing appellant in the patrol car. 
After he delivered appellant to the jail, he again searched it and found the
methamphetamine under the back seat where appellant had been sitting.  Such a
patrol car search, before and after a prisoner is transported, is a standard
law enforcement practice.  Occasionally, as was the case here, contraband is
found in the area where the prisoner was seated.
            In Garcia v. State, 871
S.W.2d 769 (Tex. App.—Corpus Christi 1994, pet. ref’d), the arresting officer
had followed a similar procedure of searching before and after he transported a
prisoner to the police station.  In the second search, the officer found a
syringe, three small baggies of cocaine and some marihuana under the back seat
cushion where the prisoner was sitting.  The Garcia court concluded that
the evidence was sufficient to link the defendant to the drugs.  Id. at
271.  Other courts, confronted with nearly the same facts and arguments, have
likewise concluded that the evidence was sufficient.  E.g., Jackson
v. State, No. 08-10-00105-CR, 2011 WL 1642617 (Tex. App.—El Paso, April 29,
2011, no pet.) (not designated for publication) (baggie of cocaine found under
the seat cushion); Renteria v. State, No. 03-96-00736-CR, 1997 WL 528970
(Tex. App.—Austin, August 28, 1997, no pet.) (not designated for publication)
(baggie of methamphetamine found stuffed behind the seat).
            The logic of these prior
cases applies equally in this case.  The jury heard the evidence and could
rationally have concluded appellant placed the methamphetamine in the back of
Officer Chamblee’s patrol car.
Intent to
Deliver
            The second prong of
appellant’s sufficiency argument is that the evidence to show “intent to
deliver” was insufficient.  In addition to the facts of the case, the State
called two expert witnesses to testify that in their opinion, appellant
possessed the methamphetamine with intent to deliver.  The officers had 11 and
6 years, respectively, of narcotics experience in Navarro County.  They
testified about how it is sold and used specifically in their locale.  They
talked about the differences they would find in cases where an individual
merely possessed the drug and a situation where an individual possessed it with
intent to deliver.  Based upon the quantity of drugs, the additional baggies in
appellant’s mouth, the other facts of the case and the expert testimony, a
rational trier of fact could conclude that appellant’s possession was with the
intent to deliver.
Chain of
Custody
            The third prong of
appellant’s sufficiency argument is that the “chain of custody” concerning the
drug evidence was deficient.  Officer Chamblee testified that after he seized
the evidence from his patrol car, it field-tested positive for methamphetamine,
he personally transported it to the Kerens Police Department, placed it in an
envelope, and then placed the envelope in a secure lock box.  Chief Leonard
Slamcik testified he retrieved the envelope from the lock box and took it to
the DPS lab in Waco where it was tested.  The DPS chemist testified she
received the envelope from Chief Slamcik, tested the suspected drugs, and found
it was 3.5 grams of methamphetamine.  The testimony regarding the various
envelopes in which the drugs were contained is at times confusing.  Testimony
also contains several references to “the evidence” rather than to the specific
exhibit number or numbers.  However, no objection was raised to the admission
of any of the exhibits or the testimony of the chemist.
            Absent evidence of tampering
or fraud, problems with the chain of custody do not affect the admissibility of
evidence.  Druery v. State, 225 S.W. 3d 491, 503 (Tex. Crim. App.
2007).   The record clearly shows that the evidence seized was placed in the
secure Kerens Police Department lock box.  The evidence was transported to the
lab where the chemical analysis showed it was 3.5 grams of methamphetamine. 
Despite some confusion over the envelopes in court and some imprecise testimony
regarding the evidence, a rational trier of fact could have concluded that the
item seized from the back seat of Officer Chamblee’s patrol car was the same
item determined by the DPS lab to be 3.5 grams of methamphetamine.
            All three prongs of
appellant’s attack on the sufficiency of the evidence fail.  Appellant’s first
two issues are overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
            Next, appellant complains
that he was denied the effective assistance of counsel.  Appellant’s complaint
is based exclusively on counsel’s failure to object to two items of evidence:
1) the drug evidence because the chain of custody was not properly established
and 2) the baggies found in appellant’s mouth, again, because they were not
properly authenticated.
            In order to prevail on a
claim of ineffective assistance of counsel, appellant must show 1) that his
attorney’s performance was deficient and 2) that the deficiency was so serious
that it prejudiced his defense.  Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d
53 (Tex. Crim. App. 1986).   We need not address the second portion of the Strickland
standard because the record fails to show that trial counsel’s performance was
deficient.
            As we noted earlier in our discussion
of the sufficiency of the evidence, problems with the chain of custody go to
the weight rather than the admissibility of the evidence.  Druery v. State,
225 S.W.3d 491, 503 (Tex. Crim. App. 2007).  Given the facts of this case, any
objection made by appellant’s counsel on the chain of custody issue could
properly have been overruled.
            Regarding the baggies
recovered from appellant’s mouth, appellant’s attorney objected to their
admission on grounds of relevance.  His objection was overruled.  Appellant’s
argument now is that he should have also objected that the baggies were not
properly authenticated.
            Evidence of the baggies
being found in appellant’s mouth had previously been admitted in testimony from
Officer Chamblee.  There was no basis for objecting to this testimony and no
objection was made.  The admission of the actual baggies was simply cumulative
of evidence the jury had already heard.  Even had counsel made such an
objection and even if the trial court sustained it, the prosecution may well
have countered by recalling Officer Chamblee to either identify the baggies or
establish that the baggies were at least similar to the ones found in
appellant’s mouth and offered them as demonstrative evidence.  Counsel’s
decision not to object on the grounds of authenticity simply does not fall
outside of the bounds of the professional norm for reasonableness.
            Counsel’s action in both the
complained of incidents was not deficient.  The third issue is overruled.
SEARCH AND SEIZURE
            Appellant next complains
that “evidence was obtained as a result of the illegal detention of appellant
without probable cause or reasonable suspicion.”  A motion to suppress was held
immediately prior to the beginning of the trial testimony.
            The trial court did not
enter findings of facts and conclusions of law.  He did deny the motion to
suppress.  The facts show routine police action of approaching a parked,
unoccupied vehicle at 3:00 a.m. located just off the highway at the beginning
of a long residential driveway.  When the officers realized it was occupied,
they engaged in a consensual encounter with the appellant, observed blood on
the inside of the driver’s door, asked for and obtained identification, ran a
warrants check, and asked appellant to step out.  While appellant did step out,
he declined to be frisked and re-entered his vehicle.  The dispatcher notified
the officers of an active arrest warrant within approximately four minutes. 
The trial court would be fully justified in determining that the identification
was obtained during a consensual encounter between the officers and appellant. 
The trial court would be equally justified in determining that, if at some
point during the four-minute wait, the “encounter” became a detention, that
such a brief investigative detention was justified based on the totality of the
circumstances including the blood on the driver’s door.
            However, we need not reach
the merits of appellant’s claims.  When the methamphetamine was offered into
evidence, defense counsel affirmatively stated, “We have no objections.”
            When a pre-trial motion to
suppress is overruled, a defendant need not make a subsequent objection to the
same evidence to preserve error.  Gearing v. State, 685 S.W.2d 326, 329
(Tex. Crim. App. 1985), overruled on other grounds, Woods v. State, 956
S.W.2d 33, 38 (Tex. Crim. App. 1997).  However, if he affirmatively states at
trial that he has “no objection” to that evidence, he waives any error despite
the pre-trial ruling.  Id.; see Holmes v. State, 248
S.W.3d 194 (Tex. Crim. App. 2008).
            Appellant obtained an
adverse ruling on his motion to suppress.  However, at trial, he waived any
error by affirmatively stating that he had “no objections.”  Appellant’s fourth
issue is overruled.
JURY INSTRUCTION ON VALIDITY OF THE
SEARCH
Appellant’s next issue complains that
the trial court denied his requested jury instruction concerning the validity
of the search under Article 38.23 of the Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 38.23
(West 2005).  Although his affirmative statement of “no objections” waived his
right to complain on appeal concerning the judge’s decision to admit the
evidence, it does not waive his right to receive a jury instruction under
Article 38.23.  Holmes v. State, 248 S.W.3d 194, 196 (Tex. Crim. App.
2008).  We will, therefore, consider the merits of appellant’s claim.
            A defendant is entitled to a
jury instruction under Article 38.23 when there is a “genuine dispute about a
material fact.”  Madden v. State, 242 S.W.2d 504, 510 (Tex. Crim. App.
2007).  The Madden court explained that the charge should be given when
there is a specific historical fact or set of facts, material to the legal
determination, put in dispute before the jury.  Thus, when an officer testified
he stopped a defendant going 61 m.p.h. in a 55 m.p.h. zone, and the defendant
stated that he was going 55, the specific historical fact of whether or not he
was speeding could be submitted to the jury in an Article 38.23 charge. 
However, the defendant was not entitled to a charge on the general legal issue
of whether or not the officer had “reasonable suspicion” to continue the
detention of the defendant.  Id. at 511.
            At trial, appellant’s
counsel did not articulate any historical fact in dispute when asking for the
charge.  He argued for an instruction about “totality of the circumstances” and
“reasonable suspicion.”  Again, on appeal, appellant talks about “detention”
and “reasonable suspicion.”  The closest appellant comes to identifying a
disputed fact is an argument about “whether appellant complied with their
request or whether he did not” and “whether it was a driveway to a residence as
the State claims or whether it was simply an open field as appellant claims.” 
Initially, we note that while appellant testified outside the jury’s presence
at the pre-trial suppression hearing, he did not testify in front of the jury. 
Officer Chamblee was the only witness who testified about the driveway and
about appellant’s compliance with his requests.  Nowhere in Chamblee’s jury
testimony – direct, cross-examination or when he was recalled by the defense –
was any disputed fact developed.
            Since there were no genuine
disputes about material facts developed in front of the jury, appellant was not
entitled to his requested jury instruction.  Appellant’s fifth issue is
overruled.
AMENDMENT TO THE INDICTMENT
            In his next issue, appellant
contends that when the trial court permitted the State to amend the indictment
his substantive rights were prejudiced.  The original indictment charged
possession of methamphetamine, with intent to deliver, in a quantity of 4 grams
or more but less than 200 grams.  The State filed a motion to amend the
indictment to change the amount to 1 gram or more but less than 4 grams.  After
a hearing, the motion was granted by the trial court who then signed a written
order containing the entirety of the amended indictment.  The hearing was held
and order signed more than two months prior to the trial.  The process of
amending the indictment was in full compliance with the statutory procedures.  Tex. Code Crim. Proc. Ann. art. 28.10
(West 2010).
            Appellant’s argument is
twofold:  First, the amendment charges a different offense and, second, the
grand jury that indicted him was not presented with evidence of the proper
weight of the methamphetamine.  Under appellant’s argument, either of these
situations violates the statute authorizing amendments.  Id. at (a).
Different
Offense
            As to his first argument,
appellant was originally indicted for possession of a controlled substance with
intent to deliver under Section 481.112(a) of the Texas Health & Safety
Code.  Tex. Health & Safety Code Ann.
§ 481.112(a) (West 2010).  The amended indictment charges him with the
identical offense under the same statutory section.  The charging instruments
differ only in the quantity of the methamphetamine allegation.  The punishment
range for the original quantity is a first degree felony set out in Section
481.112(d).  Id. at (d).  The punishment range for the amended quantity
is a second degree felony set out in Section 481.112(c).  Id. at (c).
            A similar contention was
raised in Flowers v. State, 815 S.W.2d 724 (Tex. Crim. App. 1991).  The Flowers
court gave a broad reading to the term “different offense.”  It determined that
any reading other than a different statutory offense would nullify the
entire purpose of Article 28.10.  Id. at 728.
            We need not explore the
parameters of what a “different offense” means.  Both the original and amended
indictment contains the identical offense.  The fact that the punishment
range is different, and involves a different subsection of the same statute,
does not transform the charge into a “different offense” as that term is used
in Article 28.10(c).  Tex. Code Crim.
Proc. Ann. art. 28.10(c) (West 2006).
Grand Jury
            The second portion of
appellant’s argument is that his substantial rights were prejudiced because the
grand jury was not informed of the correct weight of the methamphetamine.  The
record does not contain any information about what evidence the grand jury
heard.  Appellant cites no authority for this portion of his argument.
            At trial, the evidence
showed that the drug exhibit submitted to the crime lab weighed 4.9 grams. 
When the packaging was removed, the actual methamphetamine weighed 3.5 grams. 
Also at trial, the State offered two expert witnesses to testify that the
methamphetamine was possessed with intent to deliver.
            Appellant invites this Court
to speculate that a grand jury might view 200 grams of methamphetamine in a
different light than 1 gram for the purpose of returning an indictment that
alleged “with intent to deliver.”  We decline to engage in any such
speculation.  The State possessed evidence which convinced a trial jury of the
“with intent to deliver” element.  It is reasonable to assume that some form of
that evidence was presented to the grand jury.
            On the record before us, we
do not conclude that any substantial right of appellant was affected. 
Appellant’s issue is overruled.
CONVICTION FOR OFFENSE NOT CHARGED
            Next, appellant contends
that he was convicted of an offense not charged in the indictment.  The crux of
this argument is that the trial judge granted the state’s motion to amend the
indictment and signed an order which conformed to his ruling.  The motion and
order both allege the offense for which appellant was convicted.  However, the
original indictment was also changed by handwritten notations to conform to the
judge’s ruling.  Additionally, the “with intent to deliver” allegation was
struck out.  These changes were initialed, presumably by the trial judge, but
not dated.
            In order to amend an
indictment, it must be authorized by both a motion and order to do so.  Riney
v. State, 28. S.W.3d 561, 566 (Tex. Crim. App. 2000).  Once the
authorization exists, the trial court may do the actual amending by either
writing on the original indictment or signing or otherwise authorizing an
appropriate order.  Id.
            In the instant case, there
was no motion or order authorizing the court to amend the indictment by
deleting the “intent to deliver.”  There was both a motion and written order,
signed by the trial court, changing the quantity of the methamphetamine
allegation.  The only effective amendment to the indictment was this signed
order which was properly authorized.  The judge’s mistaken deletion of the
“intent to deliver” language on the original indictment was unauthorized and of
no legal effect.
            We also note that at trial,
all parties understood that the defendant was charged with possession with
intent to deliver.  The jury was properly charged on that offense.  Indeed, the
court’s charge even included a lesser included offense for possession of more
than 1 gram but less than 4 grams without intent to deliver.
            There being no error,
appellant’s seventh issue is overruled.
SPEEDY TRIAL
            Appellant’s final issue is
that the trial court erred in not dismissing the case because appellant’s right
to a speedy trial was denied.
            Appellant was arrested on
February 24, 2008.  He was appointed a lawyer two days later.  An indictment was
returned on March 20, 2008.
            On August 18, 2008,
appellant’s attorney filed a discovery motion.  On September 11, 2008,
appellant filed a pro se “Motion to be Heard on Due Process of Law.”  On
the same day, his attorney filed a motion to suppress.  The record does not
show any immediate action being taken on these motions.
            In late January, 2009,
appellant filed a series of pro se motions.  These included a motion to
have the case dismissed because he hadn’t been afforded a speedy trial.  He
also filed a motion to represent himself.  In the motion, he indicated he
wanted to keep his court-appointed attorney as stand-by counsel.
            In early February,
appellant’s attorney filed a supplemental discovery motion and a Brady
motion.  Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963).  Also, in early February, appellant sent a letter to the trial
court which congratulated him on his recent election and explained appellant’s
side of the case.  On February 9, 2009, a hearing was held on appellant’s
motion to represent himself.  Shortly thereafter, the trial judge granted
appellant’s motion to represent himself with his attorney acting as stand-by
counsel.  As subsequent proceedings showed, the representation, with
appellant’s full approval, was actually a hybrid counsel arrangement with the
licensed attorney doing nearly all the pre-trial questioning and arguments and
all of the trial work in front of the jury.
            As motions were being filed
in late January and early February, there were evidently discussions about a
resolution of the case going on between the State and defense.  Appellant was
given a polygraph, likely in early February, which he did not pass.
            On March 10, 2009, a
pre-trial hearing was held.  On the same day, the State filed a motion to amend
the indictment.  At the hearing, appellant objected to hearing the motion to
amend the indictment because he had no prior knowledge of it.  He did indicate
that he would be moving to dismiss the case because the State did not have a
valid indictment within 180 days.[1] 
The trial court agreed not to take up that motion, told the parties to submit
authorities, and continued by asking what other pre-trial matters needed to be
taken up.  Appellant’s attorney indicated the only thing that needed to be taken
up were the defense’s discovery motions.  The court and parties then considered
each of the 25 items in the original discovery motion and the four items in the
supplemental motion.  The hearing ended with an agreement that they would get a
date to hear the State’s motion to amend the indictment.  At no point in the
hearing did appellant or his attorney urge their motion for a speedy trial or
even inquire about a trial date.
            On March 25, 2009, another
pre-trial hearing was held.  After hearing arguments, the court granted the State’s
motion to amend the indictment.  Again, neither appellant nor his attorney
urged their motion for a speedy trial or inquired about a trial date.  No trial
date had been set.
            On May 19, 2009, a hearing
was held on appellant’s motion for a speedy trial.  At this point, a trial date
of June 8 had recently been set.  The State argued that since the trial date
had been set, the motion was moot.  The trial court indicated that he tended to
agree but that counsel could proceed.  The attorney then offered to proceed
with an offer of proof.  The court indicated his approval of that approach. 
Appellant then took the stand and testified to his satisfaction with his
attorney.  Counsel then made an offer of proof which detailed what appellant’s
testimony would be concerning the speedy trial issue.[2] 
The State then indicated it had been ready for trial but didn’t otherwise
respond.
            At the conclusion of the
hearing, the trial court determined that appellant’s case was second on the
docket to a CPS (Child Protective Services) case that was running up on its
statutory deadline.  The court indicated that he would make sure that
appellant’s case was heard on June 8th even if he had to bring in a visiting
judge.  The actual trial did occur on the June 8th date.
            An accused is guaranteed the
right to a speedy trial by the Sixth Amendment to the United States
Constitution.  Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed
2d 101 (1972); Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002).  Barker
sets out four factors that must be considered in analyzing a speedy trial
claim: 1) length of delay, 2) reason for delay, 3) assertion of the right, and
4) prejudice to the accused.  Cantu v. State, 253 S.W.3d 273, 280 (Tex.
Crim. App. 2008).  The State has the burden of justifying the length of delay
while the accused has the burden of proving that he asserted the right and
showing prejudice.  Id.  The Barker factors are not weighed
equally; rather, the accused’s burden on the last two factors varies inversely
with the State’s degree of culpability for the delay.  Id.  Thus, the
longer the delay and the more bad faith or negligence attributed to the State,
the less an accused must show on the prejudice and diligence in asserting the
right.  Id. at 280-81.  Conversely, the shorter the delay and the less
bad faith or negligence, the more an accused must show on the prejudice and
diligence factors.  
            The trial court did not make
any explicit findings of fact or conclusions of law.  We, therefore, presume
that the trial court resolved any disputed fact issues in favor of the State.  Hunt
v. State, 237 S.W.3d 434, 436 (Tex. App.—Waco 2007, pet. ref’d).  We also
defer to any implied findings supported by the record.  Id.
Length of Delay
Initially, we must look at the length of
delay to determine if it was unreasonable enough to be “presumptively
prejudicial.”  A delay of four months has been held not to meet this threshold;
a delay of 17 months has been held to meet it.  Pete v. State, 501
S.W.2d 683, 689 (Tex. Crim. App. 1973); Phillips v. State, 650 S.W.2d
396, 399 (Tex. Crim. App. 1983).  Courts generally find the requirement to be
met somewhere around the one year mark although that depends on the unique
facts of each case.  See Cantu, 253 S.W.3d at 281, n.21.
            In our case, the delay was
15½ months.  While there is not a huge difference between a delay approaching
one year and a 15½ month delay, it is still a difference.  This was not a case
involving necessary delays for extensive DNA or other scientific testing.  It
did not involve co-defendants who could not be tried together.  Rather, it was
a fairly straightforward drug possession case.  Indeed, the drug analysis was
completed within a month of appellant’s arrest.  Under these facts, we find
that a delay of 15½ months is sufficiently long to trigger the Barker
analysis.[3]
Reason for
Delay
            The next factor we look at
is the reason for the delay.  At trial and on appeal, appellant alleges neither
bad faith nor official negligence.  In his brief, appellant does argue that
this factor should be weighed against the State because they provided no reason
for the delay.  The State responds that while they were ready to try the case,
it was delayed because of ongoing plea negotiation, discovery discussions, appellant’s
desire for a polygraph, and the general overcrowding of the Navarro County
courts.
            On the issue of the reason
for the delay, the state bears the burden of justification.  The State’s
argument that the delay was caused by ongoing plea negotiations, discovery
discussions, and appellant’s desire for a polygraph is fully supported by the
record.  Delays caused by good faith plea negotiations are legitimate and will
not be counted against the State. State v. Munoz, 991 S.W.2d 818, 824
(Tex. Crim. App. 1999).  Additionally, there is no allegation or evidence that
the delay was the result of bad faith, intentional action by the State, or
official negligence.  The State has met its burden on this factor.  While this
alone should probably be dispositive of appellant’s issue, Barker and
subsequent cases mandate that courts consider all four factors; so we will
continue our analysis.  See id. at 825. 
Assertion of
Right
            We next analyze appellant’s
assertion of his right to a speedy trial.  While represented by counsel,
appellant filed two handwritten, pro se motions which on appeal he
argues asserted his right to a speedy trial.  Neither has a certificate of
service.  Both were filed before appellant requested to represent himself and
before the court allowed appellant to proceed as hybrid co-counsel.  The State
contends it was unaware of the motions when they were filed.  It was dealing
with appellant’s attorney, the written motions he had filed, plea negotiations,
and discovery.  
            The first pro se
motion, filed by appellant on September 11, 2008, is a three-page, handwritten
document styled “Motion to be Heard on Due Process of Law.” The motion requests
a hearing to show due process and cruel and unusual punishment violations. 
Essentially, both his motion and cases cited deal with search and seizure
questions and alleged Brady violations.  He does complain about his
pre-trial setting being “put off” but he does so in the context of his desire
for a hearing on the search and Brady issues.  Nowhere in his motion is
the term “speedy trial” used.  None of the three cases cited in the motion are
speedy trial cases.
            On January 26, 2009,
appellant filed a handwritten, three-page motion styled “Motion for Speedy
Trial and Disposition.”  Unlike his earlier motion, this motion does use the
term “speedy trial” and cites a speedy trial case.  The motion does not, except
in its style, request a speedy trial.  It only asks for a dismissal because he
was not afforded a speedy trial.
            Appellant and his attorney
were before the court for hearing on February 9th, March 10th and March 25th. 
At none of these hearings did he raise the speedy trial issue or even ask for a
trial date.  He did present his speedy trial motion to the court at the hearing
on May 19th.
            The burden on this issue is
on the appellant to show he asserted his right and was persistent in his
request.  See Munoz, 991 S.W.2d at 825.  The record shows that
the trial court was first apprised of his request at the May 19, 2009,
hearing.  By that time, the trial date on June 8, 2009, was set.  The trial
court immediately took action to make sure appellant’s case would be tried on
the June 8th setting.  There is nothing in the record to suggest that had
appellant asserted his right to a speedy trial at any of the earlier hearings,
the trial court would not have reacted similarly and made sure a trial was held
within the next few weeks.  Certainly the trial court would be justified in
finding that had appellant asserted his right, a trial would have been held
months earlier.
            We find that appellant did
raise the speedy trial issue in his motion and at the hearing.  We also find
that he failed to bring the motion to the court’s attention or even ask for a
trial setting at three hearings subsequent to filing his motion.   Finally, we
find that he was only seeking a dismissal of the charges against him instead of
an actual speedy trial.[4]
            On this issue, we conclude
that appellant failed to assert the right in any meaningful way until just a
few weeks before the trial.  But, because he did assert it, we will weigh it
against the State.  However, because he failed to bring it to the court’s
attention despite numerous opportunities to do so, we weigh it against the State
only in the weakest possible way.
Prejudice by
Delay
            Next, we come to “prejudice”
which is the final Barker factor.  Appellant argues that he was subject
to pre-trial incarceration, suffered general anxiety, lost his job, and his
efforts at doing legal research were hampered.[5] 
Based upon the record, he clearly was subject to these effects of pre-trial
incarceration. 
            However, the crux of
appellant’s prejudice argument is that the pre-trial delay caused him to be
unable to locate a material witness, Officer Sylvia Garcia.
            In showing prejudice based
upon a missing witness, the accused must show three things: 1) the witness was
unavailable at trial, 2) the witness’ testimony would have been relevant and
material and 3) the defendant exercised due diligence in attempting to locate
the witness.  Phipps v. State, 630 S.W.2d 942, 947 (Tex. Crim. App.
1982).
            Officer Garcia did not
testify at trial.  At the motion for new trial, it became apparent that she had
left the police department, moved from the area, and was not readily findable. 
Although appellant argues Garcia was the “lead officer” in the case, she
clearly was not.  Officer Chamblee was.  Garcia was supervising Chamblee that
night and acted in a secondary role.  She was also not involved in key aspects
of the events, including when Chamblee found the drugs and searched the vehicle
after his previous prisoner.  The record also reflects that the appellant
failed to make any effort to locate the witness.  Appellant did not subpoena
her, did not look for her, and did not request an investigator to look for her.
            Although appellant was
incarcerated and undoubtedly suffered some effects from that, he has failed to
show that the delay in his case coming to trial caused him not to be able to
call a witness.  Appellant has simply failed to show prejudice that would justify
dismissing the case.
            Looking at all four Barker
factors, we find the 15½ months delay was sufficient to trigger our analysis. 
We also find that the reason for the delay should not count against the State,
that appellant’s assertion of the right was minimal, and that he has failed to
show that he was prejudiced by the pre-trial delay.  The trial court properly
denied his request that the case be dismissed.  Appellant’s eighth issue is
overruled.


CONCLUSION
            Having overruled all of
appellant’s issues, the judgment of the trial court is affirmed.
            
KEN ANDERSON
Judge
 
Before
Chief Justice Gray, 
Justice Scoggins, and 
Judge Anderson[6]
Affirmed
Opinion
delivered and filed August 24, 2011
Publish
[CRPM]




[1] This argument was part of appellant’s pro
se speedy trial motion.  It was based on Tex.
Code Crim. Proc. Ann. art. 32.01 (West 2006).  Since the State had
obtained a valid indictment, even if it was later amended, appellant’s argument
is without merit.  Cameron v. State, 988 S.W.2d 835, 843 (Tex. App.—San
Antonio 1999, pet. ref’d).


[2] Part of appellant’s issue is that he
was denied the right to put on evidence at the hearing.  The record does not
support that allegation.  While use of the offer of proof was unorthodox, it
was evidently agreed to by all parties.  No error is shown.


[3] Appellant cites State v. Rangel,
980 S.W.2d 840, 833 (Tex App.—San Antonio 1998, no pet.) for the proposition
that “a delay beyond eight months” triggers a speedy trial analysis.  An
inflexible “eight month rule” to be applied in all cases may be a fair reading
of Rangel.  However, in Barker, a case which affirmed a
conviction where there was a five year delay, the Supreme Court noted,
“[B]ecause of the imprecision of the right to a speedy trial, the length of
delay that will provoke such an inquiry is necessarily dependent upon the
peculiar circumstances of the case.”  Barker v. Wingo, 407 U.S. 514,
530-31 (1972).  The Court of Criminal Appeals has not adopted an “eight month
rule” but has rather specifically stated, “There is no set time element that
triggers the [Barker] analysis.”  Cantu v. State, 253 S.W.3d 273,
281 (Tex. Crim. App. 2008).  In finding that the 15½ month delay triggers the Barker
analysis we are following Barker and Cantu.  We are not adopting
a “15½  month rule.”  Our holding is only that on the facts of this particular
case (no delays because of scientific testing, co-defendant issues, or
other complicating factors), this 15½ month delay does trigger the Barker
analysis.


[4] Seeking a dismissal, rather than a
trial date, is a factor which weakens an accused’s claim that he was deprived
his constitutionally protected right to a speedy trial.  Cantu v. State,
253 S.W.3d 273, 283 (Tex. Crim. App. 2008) (“Filing for a dismissal instead of
a speedy trial will generally weaken a speedy trial claim because it shows a
desire to have no trial instead of a speedy one.”).
 


[5] The record indicates that appellant was
given special access to the law materials in the jail library because he was
serving as his own attorney.  When his cell was put on lockdown for a rules
violation, he was offered his own cell with access to his legal materials.  He
declined the offer.


[6] Ken Anderson, Judge of the 277th District Court of
Williamson County, sitting by assignment of the Chief Justice of the Texas
Supreme Court pursuant to Section 74.003(h) of the Government Code.  See
Tex. Gov’t Code Ann. § 74.003(h)
(West 2005).


