                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-10-00380-CR

HERMAN LEE KINDRED,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                            From the 18th District Court
                              Johnson County, Texas
                               Trial Court No. F43788


                           MEMORANDUM OPINION


       Appellant, Herman Lee Kindred, was indicted for the offense of theft of property

valued at less than $1,500, ordinarily a class A misdemeanor. See TEX. PENAL CODE

ANN. § 31.03(a), (e)(3) (West 2011). The indictment also contained a paragraph noting

that Kindred had been convicted of theft twice before, thus enhancing the offense to a

state-jail felony. See id. § 31.03(e)(4)(D). Also included in the indictment were felony-

enhancement paragraphs, which further elevated this offense to a second-degree felony.

See id. § 12.42(a)(2) (West 2011). After a jury trial, Kindred was convicted of the charged
offense and was sentenced to eighteen years’ confinement in the Texas Department of

Criminal Justice—Institutional Division with a $1,000 fine.           In five issues, Kindred

argues that: (1) the evidence supporting his conviction is insufficient; (2) the trial court

erred in denying his motion for directed verdict; (3) the trial court abused its discretion

by imposing a grossly disproportionate sentence to the offense committed; (4) the

sentence imposed is illegal; and (5) the trial court erred by denying his motion for

speedy trial. We affirm.

                                        I. BACKGROUND

        On May 21, 2009, at approximately 1:00 p.m., Kindred, a Wal-Mart truck driver,

entered a Wal-Mart store located in Cleburne, Texas. Upon entering the store through

the general merchandise doors, Kindred immediately caught the attention of Ricky and

Danny Danals, who are Wal-Mart Asset Protection Associates. Both Ricky and Danny

observed that, upon entering the store, Kindred looked up directly at an overhead

surveillance camera and then walked swiftly to the women’s department, which is

located near the general merchandise doors.           Ricky and Danny deemed Kindred’s

actions as suspicious and subsequently followed and observed Kindred. They observed

Kindred take two shirts and two pair of pants off of a clothing rack in the women’s

department and conceal them in the front of his pants. Kindred then left the store

without paying for the items.1




        1 Oddly enough, this is not the first time Kindred has been convicted of stealing women’s
clothing. In any event, the clothing stolen in this case was valued at approximately $80.


Kindred v. State                                                                          Page 2
        Having observed the theft, Ricky called Jimmy Williams, another Wal-Mart Asset

Protection Associate, and informed him that he and Danny were going to confront

Kindred about the apparent theft. Jimmy called another Wal-Mart Asset Protection

Associate, Bryan Payne, to ask for his assistance.2 Jimmy also called the Cleburne Police

Department.

        Ricky and Danny first approached Kindred in the store’s parking lot. When

Danny said, “[e]xcuse me,” Kindred sprinted towards the back of the parking lot

toward where he had parked his Wal-Mart tractor-trailer, the getaway vehicle. As he

was running, Kindred pulled the stolen women’s clothing out of his pants and threw

them into the air. Shortly thereafter, Rick and Danny caught up with Kindred and

forced him to the ground. Kindred continued to struggle even when Jimmy joined the

effort. Eventually, Sergeant Ken Meador and Corporal Dru Summey of the Cleburne

Police Department arrived. Sergeant Meador and Corporal Summey investigated the

incident, took statements from the Wal-Mart employees, and arrested Kindred.

        Kindred was indicted with one count of “Theft Less than $1,500 with Two Prior

Theft Convictions.” Specifically, the indictment alleged that on or about May 21, 2009,

Kindred “did then and there: UNLAWFULLY APPROPRIATE, BY ACQUIRING OR

OTHERWISE EXERCISING CONTROL OVER PROPERTY, TO WIT:                                 CLOTHING

FROM RICKY DANALS, THE OWNER THEREOF, WITH INTENT TO DEPRIVE THE

OWNER OF THE PROPERTY.” The indictment also included two felony-enhancement



        2Ricky, Danny, Jimmy, and Bryan were assigned to the Cleburne Wal-Mart as Asset Protection
Associates as a part of a “blitz” to reduce rampant shoplifting that had occurred at the store.

Kindred v. State                                                                           Page 3
paragraphs pertaining to Kindred’s prior felony convictions for bail jumping and

forgery by passing.

        At trial, Kindred pleaded “not guilty” to the charged offense, but he pleaded

“true” to the theft-enhancement paragraphs. After hearing all of the evidence, the jury

convicted Kindred of the charged offense. During the punishment phase, Kindred

pleaded “true” to the felony enhancement paragraphs, and the jury sentenced him to

eighteen years’ confinement with a $1,000 fine. Thereafter, Kindred filed a motion for

new trial, which was overruled by operation of law. See TEX. R. APP. P. 21.8. This

appeal followed.

           II. SUFFICIENCY OF THE EVIDENCE SUPPORTING KINDRED’S CONVICTION

        In his first issue, Kindred argues that the evidence supporting his conviction is

insufficient. In particular, Kindred contends that the State failed to prove that Ricky

Danals is the owner of the property allegedly stolen and, thus, the evidence is

insufficient to establish the essential elements of theft.

A. Applicable Law

        In reviewing the sufficiency of the evidence to support a conviction, we view all

of the evidence in the light most favorable to the prosecution to determine whether any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d

560 (1979); see Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010).

Furthermore, we must consider all the evidence admitted at trial, even improperly

admitted evidence, when performing a sufficiency review. Clayton v. State, 235 S.W.3d

Kindred v. State                                                                      Page 4
772, 778 (Tex. Crim. App. 2007).         And, in viewing the evidence in the light most

favorable to the prosecution, any inconsistencies in the evidence are resolved in favor of

the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). The standard of

review is the same for direct and circumstantial evidence cases, or in other words,

circumstantial evidence is as probative as direct evidence in establishing an actor’s

guilt. Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007).

         The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically-correct jury charge for the case. Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A person commits theft if he unlawfully

appropriates property with intent to deprive the owner of the property. TEX. PENAL

CODE ANN. § 31.03(a). Appropriation of property is unlawful if it is without the owner’s

effective consent. Id. § 31.03(b)(1). An “owner” is defined as a person who “has title to

the property, possession of the property, whether lawful or not, or a greater right to

possession of the property than the actor.” Id. § 1.07(a)(35)(A) (West 2011).

B. Discussion

         In arguing that the State failed to present sufficient evidence to support his

conviction, Kindred relies heavily on the decision in Byrd v. State, 336 S.W.3d 242 (Tex.

Crim. App. 2011). In Byrd, the court of criminal appeals noted the following:

                The existence of the specific owner is an element, but not his name.
         Section 31.03(a) of the penal code sets out the offense of theft . . . . And
         subsection (b)(1) states, “appropriation of property is unlawful if . . . it is
         without the owner’s effective consent.” There are no names set out in the


Kindred v. State                                                                           Page 5
        theft statute. . . . Nowhere in the penal code is the name of the owner
        made a substantive element of theft.

               However, the Code of Criminal Procedure, as a matter of state law,
        requires the State to allege the name of the owner of property in its
        charging instrument. Under Texas pleading rules, ownership may be
        alleged in either the actual owner or a special owner. A special owner is a
        person who has actual custody or control of property that belongs to
        another person. For example, if Dad owns a car and loans it to Daughter,
        and Defendant steals it from the shopping mall where Daughter parked it,
        the State could allege either Dad—the title or “actual owner”—or
        Daughter—the “special owner” who actually possessed the car at the time
        it was stolen—in its theft indictment. When an entity, such as a
        corporation, owns property, the traditionally preferable practice had been
        to allege ownership in a natural person acting for the corporation. But as
        Judge Clinton noted, this practice developed in the early twentieth
        century before the adoption of the 1974 Penal Code when the definition of
        “owner” for purposes of the theft statutes was much narrower. Judge
        Clinton explained that, under the current Penal Code, a corporation may
        both own and have actual possession of property. Thus it is perfectly
        permissible, and sometimes preferable, to now allege the corporation—
        Wal-Mart, for example—as the owner of the property and then call any
        agent or employee who holds a relevant position in the company to testify
        that the corporation did not give effective consent for a person to steal or
        shoplift its property.

                Although the name of the owner is not a substantive element of
        theft, the State is required to prove, beyond a reasonable doubt, that the
        person (or entity) alleged in the indictment as the owner is the same person
        (or entity)—regardless of the name—as shown by the evidence.

Id. at 251-53 (emphasis in original) (footnotes omitted).      The Byrd court ultimately

concluded that the evidence was insufficient to sustain defendant’s theft conviction

because “[n]ot only did the State fail to offer any evidence that ‘Mike Morales’—the

person alleged in the theft indictment—had any ownership interest in or relationship to

the property appellant shoplifted, but the jury, without any apparent concern for the

missing ‘Mike Morales,’ convicted her nevertheless.” Id. at 253, 258.


Kindred v. State                                                                       Page 6
        Here, the indictment alleged that Ricky Danals is the owner of the women’s

clothing that Kindred stole from the Wal-Mart store.         Ricky testified that he was

employed as an Asset Protection Associate at the Cleburne Wal-Mart on May 21, 2009,

the day that Kindred committed the theft.         Essentially, Ricky was named in the

indictment as a “special owner” who was acting on behalf of a corporation—Wal-Mart.

See Dingler v. State, 705 S.W.2d 144, 145 (Tex. Crim. App. 1984) (“[W]hen property

referred to in a charging instrument belongs to a corporation, it is not only permissible

but the better pleading practice to allege ownership in a natural person acting for the

corporation, the true owner of the property.”). The court of criminal appeals has held

that a security guard hired to protect the property of a business and to keep the

property from being stolen, as Ricky was in this case, has a greater right of possession to

the stolen property by virtue of his employment. See Johnson v. State, 606 S.W.2d 894,

896 (Tex. Crim. App. 1980); see also Freeman v. State, 707 S.W.2d 597, 605 (Tex. Crim.

App. 1986) (“Ownership of some form of possessory interest in someone other than the

accused is an essential element of the offense. Such must be alleged and proved.

However, where the accused does not assert a possessory interest in property allegedly

stolen, but the State proves that another had a possessory interest in the property, then,

as a matter of law, between the two, the latter has established that he had the greater

right to possession of the property, and in turn the State has established a prima facie

case of ownership.”). In addition, we note that, while the practice may be “antiquated,”

as Kindred alleges, the Byrd court did not specifically prohibit the State from naming a

“special owner” in the indictment as the owner of the stolen property rather than the

Kindred v. State                                                                     Page 7
corporation itself. See Byrd, 336 S.W.3d at 251-53. We therefore conclude that, because

Ricky had a greater possessory right to the stolen property than Kindred, the State

properly asserted Ricky as a “special owner” in the indictment.

        Next, we examine the evidence with regard to the remaining theft elements. The

record reflects that Ricky and Danny observed Kindred: (1) enter the Wal-Mart store;

(2) look up at the surveillance camera situated above the entrance; (3) walk swiftly to

the women’s department; (4) take two shirts and two pair of pants—worth

approximately $80—off of a clothing rack; (5) place the clothing in the front part of his

pants; and (6) exit the store without paying for the clothing. When confronted, Kindred

ran towards the back of the parking lot while wildly throwing the stolen clothing into

the air.   Ricky, Danny, and other Wal-Mart Asset Protection Associates eventually

caught up with Kindred, but he continued to desperately fight to break free and escape.

See Clayton, 235 S.W.3d at 780 (stating that a fact-finder may draw an inference of guilt

from the circumstance of flight from the crime scene). When viewed in the light most

favorable to the prosecution, we conclude that the evidence demonstrated that Kindred

had a clear intent to deprive Ricky, the “special owner,” of the women’s clothing taken

from the Wal-Mart store. See TEX. PENAL CODE ANN. § 31.03(a); see also Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 902, 912. As such, we further conclude

that the evidence is sufficient to sustain Kindred’s theft conviction. See TEX. PENAL

CODE ANN. § 31.03(a); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d

at 902, 912. Accordingly, we overrule Kindred’s first issue.



Kindred v. State                                                                        Page 8
                       III. KINDRED’S MOTION FOR DIRECTED VERDICT

        In his second issue, Kindred contends that the trial court erred in denying his

motion for a directed verdict. However, the Texas Court of Criminal Appeals has held

that a challenge to the trial court’s denial of a motion for a directed verdict is treated as

a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482

(Tex. Crim. App. 1996); see Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990)

(“A challenge to the trial judge’s ruling on a motion for an instructed verdict is in

actuality a challenge to the sufficiency of the evidence to support the conviction.”).

Because we have already concluded that the evidence is sufficient to sustain Kindred’s

conviction, we cannot say that the trial court erred in denying his motion for a directed

verdict. See Williams, 937 S.W.2d at 482; see also Cook v. State, 858 S.W.2d 467, 470 (Tex.

Crim. App. 1993); Madden, 799 S.W.2d at 686. Accordingly, Kindred’s second issue is

overruled.

                                   IV. KINDRED’S SENTENCE

        In his third and fourth issues, Kindred challenges the sentence imposed.

Specifically, Kindred asserts that his sentence: (1) is illegal and that the Legislature

intended to limit punishment on all theft offenses to the range associated with state-jail

felonies; and (2) is unconstitutionally excessive and constitutes cruel and unusual

punishment.




Kindred v. State                                                                       Page 9
A. The Legality of Kindred’s Sentence

        In arguing that his sentence is illegal and, therefore, unauthorized by law,

Kindred contends this his situation is analogous to that involved in Brown v. State, 14

S.W.3d 832 (Tex. App.—Austin 2000, pet. ref’d). The Brown court addressed a situation

where a defendant was charged with class C misdemeanor theft for stealing $10.36

worth of meat, cheese, and beer from a grocery store. Id. at 832. The offense was

enhanced to a state-jail felony because the defendant had two prior misdemeanor theft

convictions. Id.; see TEX. PENAL CODE ANN. § 31.03(e)(4)(D). However, the State sought

to further enhance the defendant’s punishment to second-degree-felony status with

evidence that he had three prior felony convictions, also for theft. Brown, 14 S.W.3d at

832; see TEX. PENAL CODE ANN. § 12.42(a)(2). The jury found all of the enhancements to

be true and, in accordance with the punishment range prescribed for second-degree

felonies, sentenced the defendant to fourteen years in prison. Brown, 14 S.W.3d at 832.

        In concluding that the sentence imposed was not authorized by law, the Brown

court noted the following:

        Section 31.03(e)(4)(D) provides that theft of property having a value of less
        than $1500 is a state[-]jail felony if the defendant “has been previously
        convicted two or more times of any grade of theft.” (Emphasis added.)
        Under this subsection, a defendant’s history of theft convictions,
        regardless of their number or degree, cannot elevate a subsequent theft of
        property worth less than $1500 beyond the status of a state[-]jail felony.
        For this reason, the punishment for [a] third offense [of] theft under
        section 31.03(e)(4)(D) cannot be enhanced pursuant to section 12.42(a) by
        proof of additional felony theft convictions. See Rawlings v. State, 602
        S.W.2d 268, 270 (Tex. Crim. App. 1980) (applying substantially identical
        prior statutes); Freeman v. State, 970 S.W.2d 55, 59-60 (Tex. App.—Tyler

Kindred v. State                                                                        Page 10
        1998, no pet.) (applying current statutes); see also Gant v. State, 606 S.W.2d
        867, 871 n.9 (Tex. Crim. App. 1980).

Id. at 832-33.

        This case, however, is factually distinguishable from the Brown case. Here, the

State proffered evidence that Kindred had several prior theft convictions. And at trial,

Kindred pleaded “true” to the theft enhancement paragraphs contained in the

indictment. In addition, unlike Brown, the State proffered evidence of two non-theft

felony offenses of which Kindred was convicted—felony bail jumping on May 31, 1989

and forgery by passing on December 11, 1984.3 See id. at 832. Once again, Kindred

pleaded “true” to the felony enhancement paragraphs contained in the indictment.

Because he had been previously convicted of at least two additional thefts, section

31.03(e)(4)(D) authorized the enhancement of Kindred’s sentence from a class A

misdemeanor to a state-jail felony. See TEX. PENAL CODE ANN. § 31.03(e)(4)(D). And

because he also had been previously convicted of two non-theft felonies, section

12.42(a)(2) authorized the further enhancement of Kindred’s punishment to a second-

degree felony. See id. § 12.42(a)(2). Furthermore, the jury’s sentence of eighteen years

falls within the range prescribed for second-degree felonies.                    See id. § 12.33 (“An

individual adjudged guilty of a felony of the second degree shall be punished by

imprisonment . . . for any term of not more than 20 years or less than 2 years.”).

Because Kindred’s sentence falls within the range prescribed for second-degree felonies,

        3 We note that forgery does not fall into the category of theft offenses for purposes of Texas Penal

Code Section 31.03(e)(4). See Shaw v. State, 794 S.W.2d 544, 545 (Tex. App.—Dallas 1990, no pet.); see also
Watson v. State, 923 S.W.2d 829, 833-34 (Tex. App.—Austin 1996, pet. ref’d). Therefore, felony forgery
convictions can be used to enhance punishment pursuant to section 12.42(a) of the penal code. See TEX.
PENAL CODE ANN. § 12.42(a) (West 2011).

Kindred v. State                                                                                    Page 11
we cannot say that the sentence is unauthorized by law or illegal. See Mizell v. State, 119

S.W.3d 804, 806 (Tex. Crim. App. 2003) (stating that a sentence that is outside the

maximum or minimum range of punishment is unauthorized by law and therefore

illegal); see also Harms v. State, No. 10-09-00226-CR, 2011 Tex. App. LEXIS 4358, at *3

(Tex. App.—Waco June 8, 2011, no pet.) (mem. op., not designated for publication).

B. Excessiveness

        In his motion for new trial, Kindred asserted that his sentence “violates his

Constitutional protection to be free from [d]isproportionate [s]entences.” “Generally,

punishment assessed within the statutory limits is not excessive, cruel, or unusual

punishment.” Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.)

(citing Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Alvarez v. State, 63

S.W.3d 578, 580 (Tex. App.—Fort Worth 2001, no pet.)). Given our conclusion that

Kindred’s sentence is authorized by law and within the prescribed range for second-

degree felonies, we cannot say that his eighteen-year sentence is excessive. See id.; see

also Jordan, 495 S.W.2d at 952; Alvarez, 63 S.W.3d at 580.

C. Proportionality

        The Eighth Amendment of the United States Constitution prohibits cruel and

unusual     punishment,    which    includes    extreme      sentences   that   are   grossly

disproportionate to the crime. Graham v. Florida,      U.S. , 130 S. Ct. 2011, 2021, 176 L.

Ed. 2d 825 (2010); see U.S. CONST. amend. VIII. “A narrow exception to the general rule

that a sentence within the statutory limits is not excessive, cruel, or unusual is

recognized when the sentence is grossly disproportionate to the offense.” Dale, 170

Kindred v. State                                                                      Page 12
S.W.3d at 799; see Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111 S. Ct. 2680, 2707, 115 L.

Ed. 2d 836 (1991) (Kennedy J., concurring); Solem v. Helm, 463 U.S. 277, 290-92, 103 S. Ct.

3001, 3010-11, 77 L. Ed. 2d 637 (1983); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.),

cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed. 2d 98 (1992).

        The United States Supreme Court identified the following three criteria to be

used to evaluate the proportionality of a particular sentence: (1) the gravity of the

offense and the harshness of punishment; (2) the sentences imposed on other criminals

in the same jurisdiction; and (3) sentences imposed for the same offenses in other

jurisdictions. Solem, 463 U.S. at 292, 103 S. Ct. at 3011; see Alvarez, 63 S.W.3d at 580-82.

Only if we determine that the sentence is grossly disproportionate to the offense do we

consider the remaining Solem factors. Id.

        Kindred’s extensive criminal history is documented in the record. See Buster v.

State, 144 S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.) (noting that, in determining

whether a sentence is grossly disproportionate, we consider not only the present offense

but also an accused’s criminal history) (citing Davis v. State, 119 S.W.3d 359, 363 (Tex.

App.—Waco 2003, pet. ref’d)). He has at least ten prior criminal convictions on his

record, including several theft convictions, a conviction for burglary of a habitation, a

bail-jumping conviction, two forgery convictions, and a conviction for burglary of a

motor vehicle.      Several of Kindred’s convictions were felonies that resulted in

imprisonment terms in excess of ten years, including one that yielded a life sentence.

Given Kindred’s extensive criminal history and the fact that the sentence imposed falls

within the limits prescribed by a valid statute, we conclude that Kindred’s sentence is

Kindred v. State                                                                      Page 13
not so grossly disproportionate to the offense as to constitute cruel and unusual

punishment. See Solem, 463 U.S. at 292, 103 S. Ct. at 3011; see also Buster, 144 S.W.3d at

81; Davis, 119 S.W.3d at 363; Alvarez, 63 S.W.3d at 580-82. Accordingly, we overrule

Kindred’s third and fourth issues.

                                V. MOTIONS FOR SPEEDY TRIAL

        In his fifth issue, Kindred asserts that the trial court erred in denying his motions

for speedy trial. Specifically, Kindred argues that he was entitled to a dismissal because

his repeated requests for a speedy trial did not yield a timely trial setting. We disagree.

A. Standard of Review

        When reviewing a trial court’s decision on a speedy trial claim, an appellate

court applies a bifurcated standard of review. State v. Munoz, 991 S.W.2d 818, 821 (Tex.

Crim. App. 1999); State v. Jones, 168 S.W.3d 339, 345 (Tex. App.—Dallas 2005, pet. ref’d).

We review legal issues de novo but give deference to the trial court’s resolution of

factual issues. Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005); Munoz, 991

S.W.2d at 821; Jones, 168 S.W.3d at 345. We review a speedy trial claim in light of the

arguments, information, and evidence that was available to the trial court at the time it

ruled. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); Dragoo v. State, 96

S.W.3d 308, 313 (Tex. Crim. App. 2003); Jones, 168 S.W.3d at 345. Under this standard of

review, deference must be given not only to a trial court’s resolution of disputed facts,

but also to the drawing of reasonable inferences from the facts. Kelly, 163 S.W.3d at 726.

        We must uphold the trial court’s ruling if it is supported by the record and is

correct under the applicable law. Shaw, 117 S.W.3d at 889; Munoz, 991 S.W.2d at 821;

Kindred v. State                                                                      Page 14
Jones, 168 S.W.3d at 345. If a violation of the defendant’s right to a speedy trial is

established, the only possible remedy is dismissal of the prosecution. Strunk v. United

States, 412 U.S. 434, 440, 93 S. Ct. 2260, 2263-64, 37 L. Ed. 2d 56 (1973); Dragoo, 96 S.W.3d

at 313; Jones, 168 S.W.3d at 346.

B. Applicable Law

        The Sixth Amendment to the United States Constitution provides, in relevant

part, that “in all criminal prosecutions, the accused shall enjoy the right to a speedy . . .

trial.” U.S. CONST. amend. VI; Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184, 33

L. Ed. 2d 101 (1972). This right was made applicable to the states by the Due Process

Clause of the Fourteenth Amendment. U.S. CONST. amend. XIV; see Klopfer v. North

Carolina, 386 U.S. 212, 223-26, 87 S. Ct. 988, 993-95, 18 L. Ed. 2d 1 (1967).

        The Texas Constitution likewise provides that “in all criminal prosecutions the

accused shall have a speedy . . . trial.” TEX. CONST. art. 1, § 10. The Texas Court of

Criminal Appeals has traditionally analyzed state constitutional claims of the denial of

a speedy trial under the factors articulated in Barker. See Zamorano v. State, 84 S.W.3d

643, 648 (Tex. Crim. App. 2002).

        The primary burden is on the prosecution and the courts to ensure that

defendants are speedily brought to trial. See Chapman v. Evans, 744 S.W.2d 133, 136-37

(Tex. Crim. App. 1988) (orig. proceeding) (citing Turner v. State, 504 S.W.2d 843, 845

(Tex. Crim. App. 1974); McKinney v. State, 491 S.W.2d 404, 407 (Tex. Crim. App. 1973)).

In determining whether one has been denied his federal or state right to a speedy trial, a

court must use a balancing test to weigh the conduct of both the State and the

Kindred v. State                                                                      Page 15
defendant. See Shaw, 117 S.W.3d at 888 (citing Barker, 407 U.S. at 530, 92 S. Ct. at 2191-

92). The relevant factors to be weighed include, but are not necessarily limited to: (1)

the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of his

speedy-trial right; and (4) any prejudice to the defendant resulting from the delay. Id. at

888-89. These “factors must be considered together with other relevant circumstances.”

State v. Smith, 76 S.W.3d 541, 547 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

And, “[n]o single factor is necessary or sufficient to establish a violation of the right to a

speedy trial.” Dragoo, 96 S.W.3d at 313 (citing Barker, 407 U.S. at 533, 92 S. Ct. at 2193-

94). We now turn to our de novo review and independent weighing and balancing of

the relevant Barker factors.

C. Discussion

        1. Length of Delay

        The length of delay is a triggering mechanism for analysis of the other three

Barker factors. Barker, 407 U.S. at 530-33, 92 S. Ct. at 2191-94; Munoz, 991 S.W.2d at 821.

Unless the delay is presumptively prejudicial, we need not inquire into the other Barker

factors. Munoz, 991 S.W.2d at 821. Generally, a delay of eight months or longer is

considered “presumptively prejudicial” and triggers speedy trial analysis. Whitfield v.

State, 137 S.W.3d 687, 690 (Tex. App.—Waco 2004, no pet.); State v. Rangel, 980 S.W.2d

840, 843 (Tex. App.—San Antonio 1998, no pet.). However, the length of the delay that

will invoke such an inquiry depends upon the circumstances of each case. Zamorano, 84

S.W.3d at 648-49.



Kindred v. State                                                                       Page 16
        The United States Supreme Court has noted that “the delay that can be tolerated

for an ordinary street crime is considerably less than for a serious, complex conspiracy

charge.” Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Zamorano, 84 S.W.3d at 649. If the

accused demonstrates that the time from accusation to trial “has crossed the threshold

dividing ‘ordinary’ from ‘presumptively prejudicial’ delay, a court must then consider

the extent to which that delay stretches beyond the bare minimum needed to trigger

judicial examination of the claim.” Zamorano, 84 S.W.3d at 649. Therefore, a “speedy

trial analysis depends first upon whether the delay is more than ‘ordinary’; if so, the

longer the delay beyond that which is ordinary, the more prejudicial that delay is to the

defendant.” Id. The length of delay for speedy trial purposes is measured from the

time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307,

313, 92 S. Ct. 455, 474-75, 30 L. Ed. 2d 468 (1971); Smith, 76 S.W.3d at 547.

        Here, Kindred was arrested on May 21, 2009, and his trial date was October 13,

2010. This amounts to a length of delay of about seventeen months. Under governing

case law, this delay is “presumptively prejudicial” and triggers further analysis;

however, this presumption may be rebutted by the remaining Barker factors.            See

Marion, 404 U.S. at 313, 92 S. Ct. at 474-75; Zamorano, 84 S.W.3d at 649; Rangel, 980

S.W.2d at 843; see also Whitfield, 137 S.W.3d at 690-92.

        2. Reasons for the Delay

        The State bears the burden of justifying the delay. Rangel, 980 S.W.2d at 843.

Courts assign different weights to different reasons for a delay. Dragoo, 96 S.W.3d at

314. A deliberate attempt to delay a trial is weighed heavily against the State, while

Kindred v. State                                                                   Page 17
more neutral reasons, such as negligence or overcrowded dockets, are weighed less

heavily. Zamorano, 84 S.W.3d at 649. When the record is silent regarding the reasons

for the delay, a court may presume neither a deliberate attempt on the part of the State

to prejudice the defense, nor a valid reason for the delay. Dragoo, 96 S.W.3d at 314. A

valid reason, however, justifies appropriate delay. Id.

        In analyzing this prong of the Barker test, we must consider the conduct of both

the State and Kindred. See Burgett v. State, 865 S.W.2d 594, 597 (Tex. App.—Fort Worth

1993, pet. ref’d) (“Delay caused by acts of the accused which are beyond the control of

the prosecution should not weigh against the State.           In fact, a defendant may be

disentitled to the speedy trial safeguard when he has or shares responsibility.”) (citing

Dickey v. Florida, 398 U.S. 30, 48, 90 S. Ct. 1564, 1574, 26 L. Ed. 2d (1970); United States v.

Smith, 534 F.2d 74, 75-76 (5th Cir. 1976)).        However, we must keep in mind the

excessiveness of the delay because the presumption that pretrial delay has prejudiced

the accused intensifies over time. See Doggett v. United States, 505 U.S. 647, 652, 112 S.

Ct. 2686, 2690-91, 120 L. Ed. 2d 520 (1992).

        Though approximately seventeen months elapsed from Kindred’s arrest until his

trial, the record contains several explanations for the delay. Initially, Kindred was

represented by counsel.      Counsel requested, on Kindred’s behalf, that the case be

passed on several occasions, including hearings conducted on September 22, 2009;

November 3, 2009; and January 5, 2010. Prior to the January 5, 2010 hearing, Kindred

was out on bail. However, while out on bail, Kindred allegedly committed another

theft, which resulted in his arrest on March 25, 2010, and his subsequent incarceration in

Kindred v. State                                                                        Page 18
Temple, Texas. Later, at a April 27, 2010 hearing, Kindred’s counsel announced in open

court his intent to withdraw from representing Kindred.                          Kindred’s counsel

acknowledged that Kindred wanted another lawyer, and Kindred stated, in open court,

that he desired to represent himself, which the trial court allowed after administering

warnings and instructions to Kindred.

        Kindred informed the trial court that he had filed three speedy trial motions and

that the first one was filed on July 23, 2010, though this first motion is not included in

the clerk’s record. The other two speedy trial motions were filed on August 16, 2010

and August 25, 2010. On August 3, 2010, evidently after receiving Kindred’s first

speedy trial motion, the trial court conducted a hearing. At this hearing, the trial court

offered Kindred a trial date for the following Monday, August 9, 2010.                         Kindred

declined the trial court’s offer and insisted that the trial court conduct hearings on

several pro se motions he had filed. As a result, the trial court conducted a hearing on

all of Kindred’s pre-trial motions on August 31, 2010, and subsequently set the case for

trial on October 13, 2010.4

        Based on our review of the record, much, if not all, of the delay in procuring a

final trial in this matter are attributable to Kindred’s actions. Kindred’s request for new

counsel, insistence on hearings for all of his numerous pre-trial motions, and his

commission of another theft offense contributed greatly to the delay in this case. See

Zamorano, 84 S.W.3d at 649 (noting that neutral reasons for delays, such as overcrowded


        4Also at the hearing on Kindred’s pre-trial motions, the trial court reminded Kindred that he had
been scheduled for trial on February 22, 2010, but Kindred did not show. As a result of his no-show,
Kindred’s bond was forfeited.

Kindred v. State                                                                                 Page 19
dockets, are weighed less heavily against the State); Easley v. State, 564 S.W.2d 742, 745

(Tex. Crim. App. 1978) (holding “[t]hat appellant was being prosecuted on other

charges constitutes a valid reason for the delay in bringing him to trial”); Holmes v. State,

938 S.W.2d 488, 491 (Tex. App.—Texarkana 1996, no pet.) (stating that delays caused by,

among other things, the appointment of new counsel “are not chargeable against the

State”).    Furthermore, on appeal, Kindred has not cited anything in the record

demonstrating that the State deliberately delayed his trial in an attempt to prejudice his

defense.     Instead, Kindred blames the entire delay on the trial court’s alleged

overcrowded docket. Nevertheless, based on the foregoing, we conclude that this factor

weighs in favor of the State.

        3. Kindred’s Assertion of His Right to a Speedy Trial

        A defendant’s assertion of his speedy trial right is entitled to strong evidentiary

weight in determining whether the defendant was being deprived of the right. Barker,

407 U.S. at 531-32, 92 S. Ct. at 2192-93. A defendant has some responsibility to assert his

right to a speedy trial, and his failure to do so strongly indicates that he did not really

want a speedy trial. See Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992). The

manner in which a defendant raises a speedy-trial complaint is also significant. See id.

        As noted earlier, Kindred filed his first motion for speedy trial on July 23, 2010,

more than a year after he was arrested for this offense. Texas courts have held that

delays shorter than the one involved here weigh against the defendant. See Whitfield,

137 S.W.3d at 691 (stating that defendant’s failure to assert his right to a speedy trial for

over 300 days weighed against him); Jones, 168 S.W.3d at 349 (holding that a delay of

Kindred v. State                                                                      Page 20
nine months in asserting a right to a speedy trial weighed against the defendant). In

addition, the trial court offered Kindred a trial date a few days after the hearing on his

first motion for speedy trial was conducted, but Kindred rejected this offer.

Furthermore, six different pre-trial hearings were conducted in this matter beginning

with his arraignment on August 25, 2009, and it was not until July 23, 2010 that Kindred

decided to first assert his right to a speedy trial. Based on the foregoing, we conclude

that this factor weighs against Kindred.

        4. Prejudice Resulting from the Delay

        Prejudice, the fourth factor, is to be considered in light of the interests that the

right to a speedy trial was designed to protect. Barker, 407 U.S. at 532, 92 S. Ct. at 2193.

These interests include:       (1) prevention of extended pre-trial incarceration; (2)

minimization of anxiety over pending charges; and (3) the prevention of actual

prejudice to the defendant’s ability to present a defense.        Id.   “Of these forms of

prejudice, ‘the most serious is the last, because the inability of a defendant adequately to

prepare his case skews the fairness of the entire system.’” Dragoo, 96 S.W.3d at 315

(quoting Barker, 407 U.S. at 532, 92 S. Ct. at 2193).

        With regard to the prejudice prong, Kindred complains that he was forced to

remain in custody between July 13, 2010 and October 13, 2010, and that his incarceration

caused him to lose his job as a truck driver for Wal-Mart and led to a disruption of his

family life and financial affairs. Kindred also alleged that his “stay in jail was filled

with anxiety and stress regarding the charges against him. [He] could not avoid the

pressure of the upcoming trial and all [he] wished was for it to be over.”

Kindred v. State                                                                     Page 21
        We first note that, with regard to this matter, Kindred was out on bond until he

was arrested for having committed another theft offense in Bell County on November 9,

2009. This second theft constituted a violation of Kindred’s bond provisions. Thus, he

was incarcerated for not only this offense but also the second theft offense committed in

Bell County. “’Under these circumstances we are . . . mainly concerned with whether or

not appellant’s ability to defend himself was prejudiced by the delay.’” Dragoo, 96

S.W.3d at 315 (quoting McCarty v. State, 498 S.W.2d 212, 218 (Tex. Crim. App. 1973)).

        The most important consideration is whether the defense was impaired by the

delay. Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Munoz, 991 S.W.2d at 826. On appeal,

Kindred has not demonstrated that his defense was impaired in any way by the delay.

In fact, the record reflects that, after Kindred rejected the trial court’s offer to conduct a

trial on August 9, 2010, the trial court scheduled another hearing to accommodate

Kindred’s request to argue all of his remaining pre-trial motions. Furthermore, Kindred

did not present any evidence at the hearings on his motions for speedy trial showing

that he was prejudiced. And, to the extent that Kindred argues that the prejudice prong

was satisfied by his general allegations of anxiety and stress, we note that the court of

criminal appeals has held that:

        [G]eneral anxiety is at least some evidence of the type of anxiety that the
        Supreme Court considers under the prejudice prong of Barker. But
        evidence of generalized anxiety, though relevant, is not sufficient proof of
        prejudice under the Barker test, especially when it is no greater anxiety or
        concern beyond the level normally associated with a criminal charge or
        investigation.




Kindred v. State                                                                       Page 22
Cantu v. State, 253 S.W.3d 273, 285-86 (Tex. Crim. App. 2008) (internal citations &

quotation marks omitted). On appeal, Kindred does not cite any evidence in the record

demonstrating more than generalized anxiety.          See id.   Therefore, based on the

foregoing, we conclude that this factor weighs in favor of the State.

        5. Balancing the Barker Factors

        The only Barker factor that clearly weighs in favor of Kindred is the first factor

pertaining to the length of the delay. Because the remaining Barker factors weigh in

favor of the State, we conclude that the trial court did not err in denying Kindred’s

motions for a speedy trial. Accordingly, we overrule Kindred’s fifth issue.

                                      VI. CONCLUSION

        Having overruled all of Kindred’s issues, we affirm.



                                                 AL SCOGGINS
                                                 Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 21, 2011
[CR25]




Kindred v. State                                                                   Page 23
