            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD–1249–12



                            KEVIN RAY HENSON, Appellant

                                               v.

                                 THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FIRST COURT OF APPEALS
                          HARRIS COUNTY

              M EYERS, J., filed a dissenting opinion.

                                 DISSENTING OPINION

       The majority holds that a defendant must raise a speedy-trial claim in the trial court

in order to preserve the issue for appellate review. The majority seems to be applying the

rules of preservation to a right that is owed to the defendant even though preservation

analysis is for error. Failure to request a speedy trial is not an error, thus there is nothing

to preserve. If the defendant had requested a speedy trial and the request had been

improperly denied then we may be dealing with error preservation, but that did not occur
                                                                           Henson dissent–Page 2

here.

        We should not categorically say that a defendant cannot complain for the first time

on appeal that he failed to get his constitutional right to a speedy trial. An appellant is

certainly less likely to get relief if he waits until the point of appeal to raise the speedy-

trial issue, but failure to raise the issue at trial does not in and of itself preclude an

appellant from relief.1 The right to a speedy trial is not in the category of complaints that

must be preserved under Texas Rule of Appellate Procedure 33.1 by filing a request,

objection, or motion in the trial court. Instead, it is waivable only and is not extinguished

by inaction alone. There could be reasons that the defendant did not file a motion for a

speedy trial and reasons that relief should be granted on appeal. Whether a defendant

waived the right to a speedy trial must be analyzed on a case-by-case basis and waiver of

the right should not be presumed unless the delay was caused by the defendant. Much

like the right to a trial by jury, the record must affirmatively show that the right was

consciously waived.

        The record here does not reflect that the defendant waived his constitutional right

to a speedy trial. The court of appeals erred in concluding that Appellant’s failure to file

a motion for speedy trial or motion to dismiss the indictment for lack of a speedy trial

precluded him from appellate review. Because preservation analysis is for error, not for

the category of constitutional rights that belong to the defendant unless affirmatively

        1
         See Barker v. Wingo, 407 U.S. 514, 532 (1972) (“We emphasize that failure to assert
the right will make it difficult for a defendant to prove that he was denied a speedy trial.”)
                                                                      Henson dissent–Page 3

waived, I respectfully dissent to the majority’s holding that a defendant must preserve his

right to a speedy trial by raising the issue in the trial court.




Filed: September 11, 2013

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