TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00771-CR
Bobbi Battishia White, Appellant
v.
The State of Texas, Appellee
FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 76730, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Bobbi Battishia White challenges her conviction for aggravated
kidnapping. In her sole issue, she contends that the trial court erred when it denied her motion to
dismiss for violation of her speedy trial right. We affirm the judgment of conviction.
BACKGROUND
The State presented evidence at trial that on November 12, 2016, White and her
two co-defendants—her husband Tutankhamun Holt and Derrick Lamont Bailey, Jr.—worked
together to kidnap White’s minor daughter who was in the custody of White’s ex-husband at the
time. White and her ex-husband were involved in a custody dispute and White had supervised
visitation rights at the time. While White’s ex-husband and daughter exited a movie theater,
Holt assaulted White’s ex-husband in the parking lot while White abducted her daughter and put
her in a car where Bailey, the getaway driver, was waiting for them. Holt stopped his attack on White’s ex-husband and entered the getaway car. White’s ex-husband attempted to stop them
from leaving but stopped when Bailey pulled a gun on him. White and her co-defendants fled to
Alabama with White’s daughter. The next day, November 13, 2016, police officers and FBI
agents located and recovered White’s daughter. White and her co-defendants were arrested the
same day.
On February 1, 2017, White was charged by indictment with aggravated
kidnapping and extradited from Alabama to Texas. White was appointed counsel on March 15,
2017. The State moved for joinder of the three co-defendants’ cases, which was granted by the
trial court on July 13, 2017. On July 26, 2017, White filed a pro se motion to dismiss her
appointed counsel, which included her statement that “[a] jury [trial] has been scheduled for
Defendant without her consent for Aug 28, 2017.” In late July, several subpoenas were issued
for trial witnesses, and the State filed pre-trial notices.
On August 14, 2017, the trial court granted severance of the co-defendants’ cases
on the motion of one of White’s co-defendants. White’s trial counsel confirmed that he was in
agreement with severing the cases. Her counsel requested a continuance, which was granted,
and a pretrial hearing was scheduled for September 28, 2017.
On September 25, 2017, White filed a pro se “Motion for Fair Defense,” in which
she complained of alleged failures of her counsel and requested that the trial court appoint her
different counsel. On September 28, 2017, White’s counsel filed a motion to withdraw.
On October 2, 2017, the trial court granted the motion to withdraw and appointed
White her second trial counsel. On February 25, 2019, White filed a pro se letter that requested
that an attached letter addressed to her attorney be included in her file. The letter to her attorney,
which was dated February 20, 2019, requested that five specific pre-trial motions be made on her
2 behalf, including a motion for speedy trial. On March 7, 2019, White filed a pro se motion to
have her attorney removed based on his failure to file the requested pretrial motions on her
behalf. While still represented by counsel, White filed a pro se speedy trial motion on March 26,
2019, a request for a hearing on that motion on April 18, 2019, and again on May 13, 2019. The
trial court did not rule on her pro se requests for a speedy trial.
On May 23, 2019, White’s counsel moved to withdraw, explaining that White had
continued to file pro se motions after being told by counsel that all motions should go through
him, that hybrid representation was “not workable,” and that he believed she either wanted to
represent herself or to hire different counsel. However, during the hearing on the motion, White
responded, “No, sir,” when asked if she wanted her attorney to withdraw. The trial court denied
counsel’s motion to withdraw and instructed White that she did not have a right to file any
motions while she was represented by counsel. On June 5, 2019, White filed another pro se
speedy trial motion. On June 20, 2019, the State filed a witness list. On June 25th, White’s trial
was set for August 1, 2019. Also on June 25th, White’s counsel filed his second motion to
withdraw stating that a conflict of interest had developed and that although “White indicated last
month that she wanted [] counsel to remain as her counsel, her actions and pro se filings say
otherwise.” During the hearing held that same day, counsel explained that White was continuing
to file pro se motions, that he believed her pro se motions were provided by a co-defendant, that
she was claiming he was ineffective, and that he thought she wanted to represent herself. The
trial court granted the motion to withdraw. The trial court confirmed with White that she did not
want to represent herself and then appointed her third trial counsel.
In late June, the State issued another set of subpoenas. On July 1, 2019, White
filed a “Memorandum for the Record,” in which she stated, “I do not agree to any continuance in
3 [this] case” and she was “not seeking anymore delays.” On August 1, 2019, a pretrial hearing
was set for September 26, 2019. In early August, the State issued additional subpoenas. The day
before the scheduled pretrial hearing, White, through her attorney, agreed to a continuance to
allow additional time to review the “extensive discovery.” The pretrial hearing was reset for
October 17, 2019. However, two days before the hearing, White, through counsel, agreed to
another continuance because counsel was going to be in England for a “family legal issue” and
was “still reviewing discovery.” Pretrial was reset for November 14, 2019. On November 14th,
a jury trial was set for March 30, 2020. In mid-March, the State again filed a witness list and
issued subpoenas. On March 24, 2020, the jury trial was rescheduled for August 10, 2020.
Prior to the scheduled trial date, White retained new counsel who filed a motion
to substitute on July 1, 2020. One week later, the court granted the motion and scheduled a
pretrial hearing for August 13, 2020. On August 14, 2020, the court scheduled a jury trial for
January 11, 2021. On December 14, 2020, the court rescheduled the jury trial for April 5, 2021.
On March 10, 2021, White filed a motion to dismiss for violation of her speedy
trial right through her attorney. The same day, the trial court signed an order setting a hearing
date for the motion. On April 5, 2021, the trial court held a hearing on White’s motion. The trial
court took judicial notice of the court’s file.
White’s first witness, her sister Jennifer White (Jennifer) testified that White had
been continuously in jail since November 2016. She also testified that prior to White’s arrest,
the family—which included White’s daughter, White, Jennifer, and their mother—was very
close but that the relationships had become strained. She explained that their mother supported
White when she was first incarcerated but that the length of incarceration had been too stressful
on their mother and that their mother would not attend trial to testify on White’s behalf or to
4 otherwise support her. Jennifer also testified that White has multiple sclerosis (MS), which is
life threatening, and that White needs to take medication to control it.
White’s second witness, Sarah Howell, was her former cellmate in the county jail
in 2018. Howell testified that White’s condition had worsened during the time she knew her.
Specifically, Howell explained that when she first met White, she could exercise but that later
due to not consistently being given the right medication and after falling down the stairs, White
was barely able to get out of bed and was in constant pain. She also testified that White had
become depressed and had lost her sense of self while in prison. On cross-examination, Howell
admitted that she had a conviction for making a false report to a police officer and that she had
no personal knowledge of White’s condition prior to her being in jail.
White’s third witness was Jeremy Daniel, the father of White’s codefendant and
husband Holt. Daniel testified that he had known White for about eight years, that she had been
consistently in custody since her arrest in November 2016, that she had MS symptoms as long as
he had known her, and that her health had deteriorated while she was in jail because she was
having trouble getting her medication.
The State did not present additional evidence beyond the court’s file. The trial
court heard closing arguments.
White argued that the nearly four-and-a-half-year delay was not justified and
pointed out that her co-defendants had already had trials. She also argued that including her
pro se motions, the motion to dismiss was her third request for a speedy trial. She argued that
the delay had caused her prejudice based on her deteriorating health and argued that she had lost
her mother’s support as a character witness due to the delay.
5 The State argued that White was at fault for the delay by repeatedly replacing her
attorneys, which it argued necessitated continuances for the new attorneys to review discovery,
prepare for trial, and engage in plea negotiations. The State also noted that part of the delay fell
during the COVID-19 pandemic, at which time there were no jury trials. The State argued that it
had always been ready for trial and explained that it had attempted to try the cases together to
expedite the process. The State argued that White had not shown prejudice to her criminal case
and categorized the speedy-trial hearing as a “glorified bond hearing.”
The trial court denied White’s motion to dismiss. Her trial began on August 15,
2022. After hearing all the evidence presented, the jury found her guilty as charged, and the trial
court assessed punishment at twenty-five years’ imprisonment. The trial court ordered that she
receive jail-time credit towards her sentence for the time she had been in prison since her arrest.
White appealed.
STANDARD OF REVIEW
To determine whether a defendant was denied a speedy trial, we conduct the
Barker v. Wingo balancing test, in which we balance a non-exhaustive list of four factors: (1) the
length of the delay, (2) the reason for the delay, (3) assertion of the right, and (4) prejudice to the
accused. Shaw v. State, 117 S.W.3d 883, 888–89 (Tex. Crim. App. 2003) (quoting Barker
v. Wingo, 407 U.S. 514, 530–32 (1972)). This balancing test requires that we weigh the conduct
of the State and the defendant based on the arguments, information, and evidence before the trial
court at the time it made its ruling, and no single factor is necessary or sufficient to find that a
speedy-trial violation has occurred. Id. The State has the burden of justifying the length of the
6 delay, and the accused has the burden of proving that she asserted the right and that she suffered
prejudice because of the delay. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).
“We apply a bifurcated standard of review: an abuse of discretion standard for the
factual components and a de novo standard for the legal components.” State v. Lopez,
631 S.W.3d 107, 113–14 (Tex. Crim. App. 2021). Thus, we review all evidence in the light most
favorable to the trial court’s ultimate ruling, and we conduct the balancing test, which is a legal
question, de novo. See Cantu, 253 S.W.3d at 282.
DISCUSSION
Length of Delay
The first factor, the length of delay, acts as a “triggering mechanism,” in which
we only consider the other three Barker factors if the delay “has crossed the threshold dividing
ordinary from ‘presumptively prejudicial’ delay.” Lopez, 631 S.W.3d at 114 (quoting Doggett
v. U.S., 505 U.S. 647, 651-52 (1992)). Although what constitutes a presumptively prejudicial
delay depends on the circumstances of each case, generally, “a delay of eight months to a year,
or longer, is presumptively prejudicial and triggers a speedy trial analysis.” Id. We measure the
starting point of the delay from either the arrest or indictment, which ever occurred earlier. Laird
v. State, 691 S.W.3d 30, 38 (Tex. App.—Austin 2023, pet. ref’d) (citing Shaw, 117 S.W.3d at
889). “‘Presumptive prejudice’ is simply the burden to trigger a full inquiry; it ‘does not
necessarily indicate a statistical probability of prejudice.’” Id. (quoting Doggett, 505 U.S. at
652 n.1).
Here, White was arrested on November 13, 2016. Thus, when the trial court
considered White’s motion to dismiss on April 5, 2021, the delay had been nearly four years and
7 five months. See State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999) (calculating
delay from arrest to speedy trial hearing). This is more than enough time to trigger the full
Barker v. Wingo analysis. See Shaw, 117 S.W.3d at 889 (explaining that “delay approaching one
year is sufficient to trigger a speedy trial inquiry”). Further, “[b]ecause the delay stretched far
beyond the minimum needed to trigger the additional inquiry, this factor weighs heavily in favor
of finding a speedy-trial-right violation.” Laird, 691 S.W.3d at 38; see also Dragoo v. State,
96 S.W.3d 308, 313 (Tex. Crim. App. 2003) (concluding that three-and-a-half-year delay
weighed heavily in favor of finding speedy trial violation).
Reason for Delay
We next evaluate the State’s justification for the delay. See Cantu, 253 S.W.3d at
280. A deliberate delay by the State weighs heavily against it. Munoz, 991 S.W.2d at 822. A
neutral reason for the delay—“such as negligence or overcrowded courts”—weighs less heavily
against the State. Id. A valid reason for delay does not weigh against the State. Id. We may not
presume that unexplained delay was either deliberate or valid. See Dragoo, 96 S.W.3d at 314.
Delay caused by the defendant or her counsel weighs against the defendant. Hopper v. State,
520 S.W.3d 915, 924 (Tex. Crim. App. 2017).
The State’s reasons for the delay are the substitutions of White’s counsel and the
COVID-19 pandemic. White contends on appeal that the State presented no evidence of delay to
the trial court. We disagree. Although the State did tell the court that it did not have any
additional evidence outside of the court’s file, the trial court took judicial notice of the
court’s file.
8 Regarding delays caused by White’s conflicts with her trial counsel, the court’s
file contains evidence supporting reasonable inferences that the majority of the delay was the
result of conflicts with White’s counsel that were created by her insistence on filing pro se
motions after being informed it was hindering her representation, by the necessity for White to
be appointed substitute counsel as a result of her own actions, and by new counsel needing to
prepare for trial by reviewing discovery and engaging in plea negotiations. See Kelly v. State,
163 S.W.3d 722, 727 (Tex. Crim. App. 2005) (concluding that even absent evidence of plea
negotiations occurring, it was reasonable for trial court to infer that delay was attributable to such
negotiations). The record shows that three continuances were requested by White’s counsel—
one after the cases were severed, one so that counsel could finish “reviewing extensive
discovery,” and one for counsel to travel abroad for a family legal matter. The record also
demonstrates that the State filed pretrial witness lists and issued subpoenas three times in
preparation for trial throughout the delay.
The remaining attributable delay was caused by the COVID-19 pandemic. “To
the extent that the pandemic and related court closures weigh against the State, they do so but
slightly.” Laird, 691 S.W.3d 40. To the extent, as White contends, that there are periods of
unexplained delay, these weigh only slightly against the State. See Bosworth v. State,
422 S.W.3d 759, 764 (Tex. App.—Texarkana 2013, pet. ref’d) (“When no reason is offered, we
may presume that the reason lies somewhere between a deliberate delay and a valid reason that
would justify the delay.”).
Reviewing the evidence in the light most favorable to the trial court’s ruling, see
Cantu, 253 S.W.3d at 282, we conclude that this factor weighs heavily against finding a
speedy-trial violation or at most only slightly against the State, see Laird, 691 S.W.3d at 40
9 (concluding that reason for delay factor weighed heavily against speedy trial violation “because
the delay . . . was either attributable to [defendant]—his incompetency, constant changes in
counsel, and motions for continuance—or weighed at most only slightly against the State”).
Assertion of the Right
While the defendant has the responsibility to assert her right to a speedy trial,
there is not a set requirement for when she must do so. Cantu, 253 S.W.3d at 282. Rather, “[t]he
more serious the deprivation, the more likely a defendant is to complain.” Barker, 407 U.S. at
531. “Therefore, the defendant’s assertion of [her] speedy-trial right (or [her] failure to assert it)
is entitled to strong evidentiary weight in determining whether the defendant is being deprived of
the right.” Cantu, 253 S.W.3d at 283. Thus, “repeated requests for a speedy trial weigh heavily
in favor of the defendant.” Id. “If a defendant fails to first seek a speedy trial before seeking
dismissal of the charges, [s]he should provide cogent reasons for this failure.” Id. When a
defendant files a motion to dismiss instead of a motion for speedy trial, it weakens the speedy
trial claim “because it shows a desire to have no trial instead of a speedy one.” State v. Davis,
549 S.W.3d 688, 704 (Tex. App.—Austin 2017, no pet.).
Here, White first asserted her speedy trial right on March 10, 2021, when she
filed, through her attorney, her motion to dismiss for violation of her speedy trial right. See
Laird, 691 S.W.3d at 42 (holding that when trial court does not rule on pro se motions filed
while represented by counsel, they are not assertions of speedy trial right for purposes of
balancing test). White contends that her pro se motions show that she wanted a speedy trial and
that her trial counsel’s failure to file a speedy-trial motion on her behalf explains why she did not
assert her right sooner. However, the timing of White’s pro se motions for speedy trial, her
10 conflicts with counsel, and her ambivalence to keep or discharge counsel, along with the
subsequent need for substituted counsel to adequately prepare for trial create a reasonable
inference that the trial court could have drawn that White’s pro se requests for speedy trial were
not a credible showing of a sincere desire for a trial. Further, White filed a pro se motion
requesting dismissal of her first trial counsel because, as she alleged, her trial had been set
without her consent.
Reviewing the evidence in the light most favorable to the trial court’s ruling, we
conclude that this factor weighs heavily against finding a speedy-trial violation because White
did not assert her speedy trial right until she filed a motion to dismiss, rather than a motion for
speedy trial, nearly four years and four months after her arrest. See id. (concluding that third
factor weighed heavily against speedy-trial violation when “the record strongly indicate[d] that
[defendant] was not truly interested in a speedy trial[, and] that he waited almost the full length
of the delay to assert his right”).
Prejudice
We analyze prejudice to the defendant in light of the following interests: (1) to
prevent oppressive pre-trial incarceration, (2) to minimize the accused’s anxiety and concern,
and (3) to limit the possibility that the accused’s defense will be impaired. Barker, 407 U.S. at
532. The third interest is the most serious, “because the inability of a defendant to adequately
prepare [her] case skews the fairness of the entire system.” Id. (identifying death and memory
loss of witnesses as examples of potential prejudice against defendant that may be caused
by delay).
11 It is uncontroverted that White was in custody during the entirety of the delay.
This subfactor weighs in her favor. See Munoz, 991 S.W.2d at 828 (concluding that defendant’s
incarceration for entire seventeen-month delay was “dispositive” for oppressive pretrial
incarceration subfactor). However, the other two sub factors do not. White contends that she
was prejudiced by the lack of adequate medical care and the loss of family relationships. The
only evidence that White was not receiving the proper medication for her MS, came from the
testimony of her witnesses, which were all based on information they received from White. The
trial court could have reasonably disregarded that testimony based on credibility determinations.
See Cantu, 253 S.W.3d at 282. White also presented evidence through her sister’s testimony that
her lengthy incarceration caused her mother to no longer support her and that her mother was not
going to attend trial or be willing to testify. The trial court could have reasonably considered this
evidence not relevant as there was no evidence presented regarding what the mother’s testimony
would have been. Thus, we conclude that this factor weighs slightly in White’s favor.
Appellant’s Additional Circumstances
In conducting the balancing test, we must consider all four factors together “along
with any other relevant circumstances.” Id. at 281. White contends that we should consider two
additional circumstances—her daughter’s safety and “the State’s lack of accountability and
unwillingness to accept responsibility.” Regarding her daughter’s safety, she requests that we
consider that there are ways for her ex-husband to keep her daughter safe other than her
remaining incarcerated. We will consider this factor as neutral. Regarding her other additional
circumstance, White complains that at the speedy trial hearing the State did not concede that the
length of delay triggered the speedy trial analysis, and thus, White contends that the State should
12 be discouraged from this behavior in the future by this Court considering it as an additional
factor. The State frames this contention as White asking that we consider a speedy-trial claim to
be a vehicle to punish a prosecutor for arguments made to the trial court regarding the balancing
test. We consider this factor as neutral.
Balancing the Factors
In applying the Barker v. Wingo balancing test, we must “use common sense and
sensitivity to ensure that charges are dismissed only when the evidence shows that a defendant’s
actual and asserted interest in a speedy trial has been infringed.” Id. “The constitutional right is
that of a speedy trial, not dismissal of the charges.” Id. Although we conclude that the prejudice
factor weighed slightly in White’s favor, any prejudice was significantly mitigated by White’s
role in causing much of the delay. See Balderas v. State, 517 S.W.3d 756, 773 (Tex. Crim. App.
2016) (concluding that “[a]ny prejudice to [defendant] was extenuated by his role in requesting
the delay”). Further, although the length of delay weighs heavily in her favor, her own actions in
causing the delay and the evidence supporting a finding that she was not actually seeking a
speedy trial but rather dismissal, weigh heavily against her. Upon considering the record before
the trial court, applying the relevant standard of review, and utilizing a common-sense approach
in balancing the Barker v. Wingo factors, we conclude that the trial court did not err in denying
White’s motion to dismiss. We overrule her sole issue.
13 CONCLUSION
Having overruled White’s sole issue on appeal, we affirm the trial court’s
judgment of conviction.
__________________________________________ Gisela D. Triana, Justice
Before Chief Justice Byrne, Justices Triana and Smith
Affirmed
Filed: October 18, 2024
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