Opinion issued July 7, 2011.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00023-CR

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Brant Alsenz, Appellant

V.

The State of Texas, Appellee

On Appeal from the 240th District Court

Fort Bend County, Texas

MEMORANDUM OPINION

Appellant Brant Alsenz appeals an order from Fort Bend County revoking his probation on a robbery conviction and ordering his ten-year sentence for that offense be served consecutive to a 25-year sentence he is serving for a murder conviction in Harris County.  We affirm.

BACKGROUND

On March 2, 2004, following his guilty plea to the second-degree felony of robbery, the Fort Bend County District Court sentenced appellant to a 10-year probated sentence.  That sentence carried several conditions, including a prohibition on committing any other offense or using drugs.  On May 6, 2004, appellant tested positive for marihuana and, on August 4, 2004, he tested positive for marihuana and cocaine.  A sanctions hearing was held, and appellant was placed in a rehabilitation facility for chemical-dependency treatment on August 16, 2004.  Following his successful discharge from that program on November 15, 2004, appellant again testified positive for drugs—cocaine and Phencyclidine—on December 15, 2004. 

At a sanctions hearing on December 21, 2004, the State gave appellant the option of entering another drug-rehabilitation program.  At that hearing, appellant was also informed that, if he declined additional treatment, the State would file a motion to revoke his probation.  He was not taken into custody at the hearing. 

On January 21, 2005, the Fort Bend County Probation Department learned that appellant had been charged and arrested in Harris County for murdering his girlfriend on December 31, 2004.  On February 24, 2005, a motion to revoke the appellant’s probation on his Fort Bend robbery conviction was filed in Fort Bend County, citing as grounds (1) the Harris County murder, (2) the failed drug tests, (3) appellant’s failure to complete community service hours and (4) his failure to pay certain court fees, restitution, and costs. 

While incarcerated in Harris County, appellant was charged with assaulting and causing serious bodily injury to a member of Harris County Jail’s emergency response team on July 28, 2007, and with assaulting a Harris County Jail deputy on August 11, 2007.  On October 18, 2007, an amended motion to revoke appellant’s probation (“Amended Motion to Revoke”) was filed in Fort Bend adding the July 2007 stabbing of jail personnel as an additional ground supporting revocation.

On July 8, 2008, appellant pleaded guilty in Harris County to the charge of murdering his girlfriend, and was sentenced to 25-years’ confinement.  He was transferred to Fort Bend County on November 13, 2008 for a hearing on the Amended Motion to Revoke.  The following day, November 14, 2008, appellant requested a lawyer be appointed to represent him in the revocation proceedings.  On November 24, 2008, counsel was appointed.  Between November 24, 2008 and June 2009, the hearing was continued and reset six times.  On June 29, 2009, appellant filed a motion to substitute counsel, which the court granted on July 1, 2009.

Also on July 1, 2009—the first day of the revocation hearing—appellant’s new counsel filed a Motion and Amended Motion for Dismissal for Failure to Provide a Speedy Trial (“Amended Motion to Dismiss”).  In this motion, appellant argued that appellant had been prejudiced by delay because, had the revocation hearing been held “previous to 7/08/08, defendant would have had no murder conviction available for sentencing consideration.”

From July 1, 2009 through July 6, 2009, an associate judge held a hearing on the State’s Amended Motion to Revoke and appellant’s Amended Motion to Dismiss.  The associate judge denied appellant’s Amended Motion to Dismiss, granted the State’s Amended Motion to Revoke, and ordered appellant’s ten-year sentence to be cumulative of his Harris County murder conviction sentence and, thus, begin after his 25-year sentence is served.  Appellant was credited for 632 days already served. 

On July 13, 2009, appellant appealed the associate judge’s ruling, seeking a de novo hearing with the presiding judge.  On October 26, 2009, appellant filed a Second Amended Motion for Speedy Trial (“Second Amended Motion to Dismiss”), again seeking dismissal or, alternatively, a sentence of no more than five years to run concurrently with appellant’s Harris County sentence.  In this unverified motion, appellant argued that he was prejudiced by the delay in holding a hearing on the State’s motion to revoke.  Specifically, he claimed that he “suffered serious physical and emotional abuse from Harris County jail guards during his 5 years plus wait” and that this “abuse and fear of being tormented and psychically injured culminated in an involuntary plea to the offense of murder in Harris County.”  Appellant also argued that the death of his girlfriend was an accident, and that he and his family endured long-term stress during his five-year incarceration under the threat of a cumulative sentence in this case.  Finally, he complained that he could no longer locate the co-defendants or the complainant in the underlying robbery case, who he anticipated would testify “in mitigation on Defendant’s behalf saying that it was an impulsive acquiescence to join in to right a perceived wrong between two parties involved in the use of controlled substances and that Defendant was using controlled substances at the time in question.”  According to appellant, “[b]oth would testify that the Defendant was unarmed and just stood there at the time.”            

On November 24-25, 2009, the presiding judge held a hearing on appellant’s Second Amended Motion to Dismiss and the State’s Amended Motion to Revoke.

A.   The Trial Court’s Judgment

 On November 25, 2009, the presiding judge denied appellant’s Second Amended Motion to Dismiss, granted the State’s Amended Motion to Revoke, and sentenced appellant to 10-years’ confinement, consecutive to follow his 25-year Harris County sentence.  Appellant was credited for 824 days already served. 

On December 18, 2009, the trial court entered a Judgment Nunc Pro Tunc, changing the 824-day credit for time served to “4 Years and 168 days” credited for time served. 

B.   This Appeal    

Appellant seeks reversal of the trial court’s revocation order through three points of error: (1) “the trial court erred in denying appellant’s motion requesting dismissal for lack of a speedy trial,” (2) “the trial court erred in cumulating its sentence on a conviction lacking finality,” and (3) the trial court erred in finding the Harris County murder conviction “sufficient legally for the culmination order.”   

Speedy Trial

In his first point of error, appellant argues that the trial court erred by denying his motion requesting dismissal for lack of a speedy trial.  He contends that his “pretrial incarceration period should be measured from December 15, 2004 because of the state’s gross negligence in releasing Appellant” after he tested positive for drug use.  “The end date,” he argues, “should be November 24, 2009 when the final hearing began” on his de novo appeal from the associate judge’s ruling.  Because this period is almost five years, appellant argues that the delay was presumptively unreasonable. 

Appellant further asserts that “the [S]tate provided no reason for the delays,” that “Appellant, by his actions, asserted his rights to a speedy trial in both [the Harris County and Fort Bend] cases,” and that he was prejudiced because he was “sentenced on the basis of commission of murder and felony assault on a law enforcement officer . . . instead of being sentenced on the basis of drug usage, technical violations and the instant robbery case.”     

A.   Applicable law

The right to a speedy trial is guaranteed by the Sixth Amendment of the United States Constitution and applies to the states through the Fourteenth Amendment.  Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184 (1972).  An accused is also guaranteed the right to a speedy trial by the Texas Constitution. Tex. Const. art. I, § 10; see also Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 2005).  Texas courts look to the federal courts to determine constitutional rights and apply the test articulated in Barker for a speedy-trial analysis.  Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992).  The Barker test requires a reviewing court to balance four factors to determine whether one’s right to a speedy trial has been violated: (1) the length of delay; (2) the reason for the delay; (3) defendant’s timely assertion of his speedy-trial right; and (4) prejudice to the defendant resulting from the delay.  Barker, 407 U.S. at 530, 92 S. Ct. at 2192.  As the reviewing court, in evaluating a speedy trial claim, we review factual issues for abuse of discretion and legal issues de novo.  State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

B.   Application

1.     Length of Delay

The length of the delay is considered a “triggering mechanism”—absent a presumptively prejudicial delay, a reviewing court need not consider the other Barker factors.  Barker, 407 U.S. at 530, 92 S. Ct. at 2192.  The Court of Criminal Appeals has recognized generally that delays of eight months or longer is presumptively unreasonable, thereby triggering a speedy-trial analysis.  Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992); see also Doggett v. United States, 505 U.S. 651, 647 n.1, 112 S. Ct. 2686, 2691 n.1 (1992) (holding delay “presumptively prejudicial at least as it approaches one year”).  This Court has likewise held that an eight-month delay is presumptively unreasonable.  Ervin v. State, 125 S.W.3d 542, 546 (Tex. App.—Houston [1st Dist.] 2002, no pet.).  

The State argues that the relevant period runs not from December 15, 2004 (the date he tested positive for drug use), but instead from the date the motion to revoke was filed on February 24, 2005.  It further contends that the period would end on June 1, 2009, the date the hearing began before the associate judge, rather than November 24, 2009 (the date of the presiding judge’s de novo hearing).  In any event, the State concedes that the delay in this case exceeding four years “weigh[s] against the State, but is not necessarily dispositive of this case.”  We therefore evaluate appellant’s claim under the remaining Barker factors.

2.     Reason for Delay

The State bears the burden to justify a presumptively unreasonable delay. Phillips v. State, 650 S.W.2d 396, 400 (Tex. Crim. App. 1983). A deliberate attempt to delay the trial to hamper the defense weighs heavily against the government. Barker, 407 U .S. at 531, 92 S. Ct. at 2192.

Here, appellant was incarcerated on murder charges in Harris County for much of the pendency of the underlying revocation proceedings.  He was sentenced in the murder case on July 8, 2008 and transferred from Harris County to prison facilities.  He was then transported to Fort Bend four months later, on November 13, 2008, and appointed an attorney less than two weeks later.  Appellant’s only argument for weighing the “reason for delay” Barker factor against the State is his assertion that “with the knowledge of drug use and Appellant’s criminal history, the state should have, at a minimum, requested that the Appellant be placed in custody or placed in a drug treatment facility and filed a motion to revoke on December 15, 2004.”  Appellant thus insists that the “delays should be weighed heavier on the state because of its gross negligence in the failure to act in a reasonable manner on December 15, 2004 and incarcerate the Appellant.” 

A delay that is caused by a neutral event, not “due to ‘a deliberate attempt to delay the trial’” should not be weighed against the State.  State v. Williams, 90 S.W.3d 913, 920 (Tex. App.—Corpus Christi 2002, no pet.) (citing Barker, 407 U.S. at 531, 92 S.Ct. at 2182).  At least one other court of appeals has declined to weigh against the State time that the defendant “was free or was confined for other charges unrelated to the current matters.”  Wade v. State, 83 S.W.3d 835, 839 (Tex. App.—Texarkana 2002, no pet.).  The reason for delay in this case should weigh only slightly, if at all, against the State. 

3.     Assertion of Speedy Trial Right

A defendant’s assertion of his right to a speedy trial is entitled to strong evidentiary weight.  Barker, 407 U.S. at 531–32, 92 S. Ct. at 2192–93.  Likewise, a defendant’s failure to assert the right to a speedy trial makes it difficult to prove that he was denied a speedy trial.  Id. at 532, 92 S. Ct. at 2193;  Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003); Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).

Here, appellant never requested a speedy trial.  Rather, he filed a motion to dismiss on the first day of the revocation hearing.  “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.” Cantu v. State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008) (citing Zamorano v. State, 84 S.W.3d 643, 651 n.40 (Tex. Crim. App. 2002)).  “Under Barker, appellant’s failure to diligently and vigorously seek a rapid resolution is entitled to ‘strong evidentiary weight.’”  Id. at 284.

Appellant concedes that he never filed a motion for speedy trial in the Fort Bend revocation proceedings.  Nonetheless, without citation to the record, he insists that he, “by his actions, asserted his rights to a speedy trial in both” the Harris County and Fort Bend proceedings.  Specifically, he contends that his lawyer in his Harris County case “ignored [his] need and his verbalized strong desire for a speedy trial.” 

But similar to the defendant in Cantu, “appellant never requested a speedy trial; he sought only an outright dismissal and tried to prove that he acted on the desire for a speedy resolution.”  253 S.W.3d at 284–85.  The trial court was not presented any evidence in support of assertion that he previously sought a speedy trial, and appellant cites none here.  Appellant’s failure to ever request a speedy trial in the Fort Bend revocation proceedings before filing a motion for dismissal weighs heavily against appellant.

4.     Prejudice Caused by the Delay

The defendant bears the burden to make a prima facie showing of prejudice.   State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App. 1999).  If shown, the State must prove that “the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay.”  Id. (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. App. 1973)).  We assess prejudice “in the light of the interests of defendants which the speedy trial right was designed to protect” in determining prejudice caused by the delay.  Barker, 407 U.S. at 532, 92 S. Ct. at 2193.  The right to a speedy trial is designed to protect the following three interests of a defendant: (1) prevention of oppressive pretrial incarceration; (2) minimization of anxiety and concern of the accused; and (3) limiting the possibility of impairment of the accused’s defense.  Id.  The last type of prejudice is the most serious, although a defendant’s claim that his right to a speedy trial was violated does not absolutely require that he demonstrate prejudice to his ability to present a defense. Zamorano v. State, 84 S.W.3d 643, 652 (Tex. Crim. App. 2002).

Delay does not per se prejudice a defendant.  See Barker, 407 U.S. at 521, 92 S. Ct. at 2187.  Considering that the State bears the burden of proof at trial, delay can be either employed or acquiesced to as a defense tactic.  Appellant argues that the delay subjected him to oppressive pretrial incarceration in Harris County, where he alleged that he did not receive proper medical care and was “verbally abused and tortured.”  This argument, however, goes strictly to the delay occasioned by delays in his murder trial in Harris County that were not impacted by when his revocation hearing occurred.

In arguing that the delay caused him to suffer anxiety and concern, appellant contends that he and his family suffered an “unusually difficult emotional period during his incarceration in the Harris County Jail” because (1) he would not have killed his girlfriend if Fort Bend had him in custody after his failed drug test in December 2004; (2) he was injured by guards in Harris County jail, causing hospitalization in one instance; (3) his family feared for his well-being because they heard reports of the death of a Harris County inmate around the time that appellant was beaten by guards; (4) he would not have been falsely charged with two more felony assaults while awaiting trial in Harris County; and (5) he would not have suffered all of the pain and injuries had he received a speedy trial.  “Evidence of generalized anxiety, though relevant, is not sufficient proof of prejudice under the Barker test.”  Cantu, 253 S.W.3d at 286.  This is especially true here, where appellant does not identify anxiety and concern specific to the revocation proceedings in Fort Bend County, but rather anxiety related to his confinement awaiting murder trial in Harris County.      

Specific to prejudice in Fort Bend County, appellant argues that he was “sentenced on the basis of commission of murder and felony assault on a law enforcement officer . . . instead of being sentenced on the basis of drug usage, technical violations and the instant robbery case.”  This argument ignores that the Fort Bend court could revoke his probation if the State established that he murdered his girlfriend by a preponderance of the evidence without regard for whether he was yet, or ever, convicted of that crime in Harris County.  See, e..g., Shaw v. State, 622 S.W.2d 862, 863 (Tex. Crim. App. 1981).  Thus, had his Fort Bend revocation hearing been held while he was in Harris County awaiting his murder trial, that fact would not, as appellant contends, mean that his murder and assault charges would not have been considered despite their not yet being the subject of a conviction in Harris County.     

The State argues that, rather than prejudice his defense, appellant could reasonably have believed that delaying the revocation until after resolution of the Harris County charges was a reasonable strategy.  Appellant concedes as much, noting in his brief that had the Harris County case resolved itself—as he hoped—with an acquittal or, alternatively, a manslaughter or negligent homicide conviction, “far better odds existed [that] a lesser sentence” to be served consecutively would have been imposed in the Fort Bend revocation proceedings.  Because what appellant characterizes as prejudice from delay in the Fort Bend revocations proceedings are attributable to his time awaiting trial on Harris County murder charge or attributable to his own actions, we hold that appellant has not demonstrated any prejudice caused by delay.

In sum, appellant has not demonstrated that the trial judge’s ruling denying his motion to dismiss was unsupported by the evidence.  “From this record, one could conclude that appellant did not really want a speedy trial; he wanted only a dismissal” of his revocation proceedings.  Cantu, 253 S.W.3d at 286.  The fact that the majority of the delay and prejudice claimed by appellant is related to his Harris County murder charge rather than the Fort Bend revocation proceedings, coupled with the fact that appellant never asserted a right to a speedy trial before requesting dismissal on the eve of the revocation hearing, supports the trial court’s refusal to dismiss.  We overrule appellant’s first point of error.

CUMULATING SENTENCE

In his second point of error, appellant asserts that, because there was a habeas corpus petition pending challenging his murder conviction at the time of the revocation hearing, this Court should conclude that murder conviction was not final, hold that a nonfinal conviction cannot be used to cumulate a sentence and, finally, reform the order in this case to require appellant’s sentences to run concurrently.  See Beedy v. State, 250 S.W.3d 107, 110 (Tex. Crim. App. 2008) (remedy for unlawful cumulation order is reformation of the judgment).  In support, appellant cites Beal v. State, which holds that a conviction on direct appeal is not final until the mandate issues for purposes of using that conviction as a “prior conviction” enhancement in an indictment.   91 S.W.3d 794, 796 (Tex. Crim. App. 2002).

The State argues that Beal is inapplicable because it dealt with an enhancement in an indictment, which is not at issue in this case.  Here, appellant’s sentence was not enhanced with the murder conviction—it was made cumulative to his sentence for murder pursuant to article 42.08 of the Texas Code of Criminal Procedure.  That section provides:

When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. Except as provided by Sections (b) and (c) of this article, in the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate, or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be accordingly.

Tex. Code Crim. Proc Ann. art. 42.08(a) (Vernon 2006). 

We agree with the State.  Appellant cites no authority, and we have located none, supporting the proposition that a pending collateral attack on a final judgment of conviction through a habeas corpus proceeding renders that conviction not final.  Nor has appellant cited any authority extending Beal’s date-of-final-conviction analysis to article 42.08 cumulation orders.  We overrule appellant’s second point of error.

SUFFICENCY OF THE EVIDENCE TO SUPPORT CUMULATION 

Related to appellant’s second point of error, he argues in his third point of error that the trial court abused its discretion by ordering consecutive sentences because the alleged lack of finality of the murder conviction renders it legally insufficient to support the cumulation order.  For the reasons we overruled appellant’s point of error two, we overrule point of error three.

CONCLUSION

We affirm the trial court’s judgment.

                                                                   Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Sharp and Brown.

Do not publish.   Tex. R. App. P. 47.2(b).