Felizardo Perez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 17, 2025
• Docket: 01-23-00748-CR
• Status: Published

Opinion

Opinion issued July 17, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00748-CR ——————————— FELIZARDO PEREZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 4 Tarrant County, Texas Trial Court Case No. 1791805

MEMORANDUM OPINION

Felizardo Perez appeals his conviction of continuous sexual abuse of a child,

arguing his trial counsel was not afforded the ten-day trial-preparation period required by Article 1.051(e) of the Texas Code of Criminal Procedure and he was

denied the right to a speedy trial. We affirm.1

Background

Over a five-year period from 2011 to 2016, Perez sexually abused his

granddaughter, S.P., repeatedly and on a continuing basis. S.P. was four or five

years old at the time of the first instance of abuse, and the abuse continued until she

was ten or eleven. S.P. could not recall any year during this period in which Perez

did not abuse her. In 2018, she wrote a letter to her mother disclosing the abuse. An

investigation followed, which lead to Perez’s arrest in January 2020.

In April 2020, a Tarrant County grand jury issued a true bill of indictment

against Perez, charging him with four counts of sexual abuse of a child. The charges

included a count for continuous sexual abuse of a child under fourteen, from on or

about September 19, 2011, through November 6, 2018. Perez pleaded not guilty and

chose to hire his own counsel. Perez’s retained counsel twice moved to withdraw,

citing an “irreconcilable conflict of interest” with Perez, and the trial court granted

a withdrawal on September 13, 2021. On the same day, the trial court appointed

attorney Jeffrey Boncek to represent Perez.

1 Under its docket-equalization authority, the Supreme Court of Texas transferred this case from the Second Court of Appeals to this Court. See Misc. Docket No. 23- 9079 (Tex. Sept. 26, 2023); see also TEX. GOV’T CODE § 73.001(a) (authorizing transfer of cases). We are unaware of any conflict between the precedents of that court and this Court that would affect our disposition. See TEX. R. APP. P. 41.3.

2 On March 15, 2023, while represented by Boncek, Perez filed a pro se

“Motion to Dismiss for Failure to Indict and Provide a Constitutional Speedy Trial.”

The record does not reflect that Perez did anything to bring the motion to the trial

court’s attention nor that the trial court heard or ruled on the motion.

The following day, Boncek moved for a competency evaluation because Perez

“maintains he has no lawyer despite [Boncek’s] efforts to speak with [Perez] on

multiple occasions.” The trial court granted the motion, but the examining

psychologist later informed the trial court he could not examine Perez because he

“refused to cooperate.”

In July 2023, at Boncek’s request, the trial court conducted a hearing to “try

and figure out what, if any, conflict there is with [Perez].” Boncek explained at the

hearing that he had visited Perez in jail on multiple occasions, but Perez “would not

face me,” “kept his back turned to me,” and “wasn’t really giving me an opportunity

to speak.” Boncek also said Perez attempted to disrupt his meetings with other

clients at the jail and filed grievances against him with the state bar. Boncek

expressed “serious concerns about being able to prepare for trial” because he could

not communicate with Perez. When the trial court attempted to question Perez, he

responded, “I’m not going to work with [Boncek].” Perez did not mention his pro

se motion for a speedy trial or argue that he had been denied his right to a speedy

trial. The trial court observed that Perez “is doing everything he can to make sure

3 that this case gets delayed and that the system of justice does not operate in an

efficient manner, and he is intentionally trying to frustrate the Court.” The trial court

then set a final status conference for August 24, 2023, with trial to begin on August

25, 2023.

On August 15, 2023, ten days before trial, the State reindicted Perez under a

new cause number. The reindictment was based on Perez’s conduct over a general

time period covered by the original indictment—his sexual abuse of S.P. between

September 2011 through September 2016—but it added twenty additional counts for

individual instances of abuse within that timeframe.

On August 23, 2023, two days before trial, Boncek filed a motion to withdraw

as counsel and a motion for continuance, asserting a withdrawal or continuance was

needed because Perez continued to refuse to communicate with Boncek. The trial

court denied both motions.

Trial began on August 25, 2023. At the beginning of each day of the trial,

Boncek renewed his motion for continuance, but the trial court denied it each time.

The jury found Perez guilty of continuous sexual abuse of a child. It found

him not guilty on the remaining indecency counts that were not incorporated as

lesser-included offenses within continuous sexual abuse of a child. The jury

assessed punishment at ninety-nine years in prison, and the trial court entered a

judgment of conviction in accordance with the jury’s verdicts.

4 Analysis

Perez raises two issues on appeal. First, he contends the trial court

fundamentally erred by not allowing his counsel ten days to prepare for trial

following the reindictment, as required by Article 1.051(e) of the Texas Code of

Criminal Procedure. Second, he argues the trial court denied him the constitutional

right to a speedy trial.

A. Ten-day trial preparation period

An appointed attorney is entitled to ten days to prepare for trial. TEX. CODE

CRIM. PROC. art. 1.051(e) (“An appointed counsel is entitled to 10 days to prepare

for a proceeding but may waive the preparation time with the consent of the

defendant in writing or on the record in open court.”). This rule helps “ensure the

indigent defendant receives appointed counsel who is prepared for the proceeding.”

Marin v. State, 891 S.W.2d 267, 272 (Tex. Crim. App. 1994).

Perez contends the trial court ran afoul of this ten-day trial preparation

requirement because the State reindicted him on August 15, 2023, and trial

commenced on August 25, 2023. Assuming the date of the reindictment is not

included within the trial-preparation period, Perez argues this left Boncek with only

nine days to prepare.

We disagree. In interpreting the ten-day trial preparation requirement, the

Court of Criminal Appeals has “consistently focused on the actual preparation time

5 afforded to appointed counsel, not the time of formal appointment, to determine

compliance.” Marin, 891 S.W.2d at 270. “Thus, there is no error in re-indicting a

defendant less than ten days before trial so long as counsel is appointed on the

original indictment in excess of ten days, and any difference between the indictments

is negligible and in no way affects the defendant’s ability to prepare for trial.” Ponce

v. State, 89 S.W.3d 110, 115 (Tex. App.—Corpus Christi-Edinburg 2002, no pet.)

(citing Marin, 891 S.W.2d at 270); see also Spencer v. State, No. 14-00-00661-CR,

2001 WL 578306, at *2 (Tex. App.—Houston [14th Dist.] May 31, 2001, pet. ref’d)

(mem. op., not designated for publication).

Here, the State filed its original indictment in April 2020. After Perez’s

retained counsel withdrew, the trial court appointed Boncek in September 2021.

Boncek represented Perez for almost two years throughout the remainder of the trial

court proceedings, including at trial, and repeatedly attempted to meet with Perez to

prepare his defense to the charges of sexual abuse of S.P. from September 19, 2011,

to November 6, 2018. When the State reindicted Perez on August 15, 2023, the

additional counts included in the reindictment alleged the same conduct by Perez as

the original indictment (sexual abuse of S.P.), occurring from September 19, 2011,

to September 19, 2016, a time period covered by the original indictment. Thus, when

trial began on August 25, 2023, Boncek had been defending Perez for nearly two

years against charges that he repeatedly sexually abused S.P. during this time period.

6 Because the differences between the original indictment and the reindictment

were “negligible,” they did not affect Perez’s ability to prepare for trial. Ponce, 89

S.W.3d at 115 (no violation of Article 1.051(e) where trial began four days after

reindictment, because new counts “merely expanded the number and methods of

sexual assault and indecency against the same victim during the same general time

range”); see also Marin, 891 S.W.2d at 271 (“Several times we have addressed

alleged violations of the statute where the appointed attorney had been forced to trial

within ten days of re-indictment. In those cases we found no error because counsel

had been appointed, albeit on the original indictment, in excess of ten days.”

(emphasis in original)). We overrule Perez’s first issue.

B. Speedy trial

In his second issue, Perez contends the trial court denied his constitutional

right to a speedy trial.2 See U.S. CONST. amend. VI, XIV; TEX. CONST. art. I, § 10.

Perez was arrested in January 2020 and originally indicted in April 2020. His trial

did not begin until more than three and a half years later, in August 2023, and he

spent sixteen months of that period in jail. According to Perez, this delay constitutes

a violation of his speedy-trial rights.

2 Perez’s speedy-trial argument is based solely on his right to a speedy trial under the United States and Texas Constitutions; he does not claim a violation of the statutory right to a speedy trial under the Texas Speedy Trial Act. See TEX. CODE CRIM. PROC. art. 32A.01.

7 Perez failed to preserve this argument for our review. A defendant must

properly raise a speedy-trial claim in the trial court to preserve the issue for appellate

review. Henson v. State, 407 S.W.3d 764, 768 (Tex. Crim. App. 2013) (“[T]he

preservation requirements do apply to speedy-trial claims for several reasons.”).

Perez did not do so. The only time Perez attempted to complain to the trial court

about his right to a speedy trial was when he filed his pro se “Motion to Dismiss for

Failure to Indict and Provide a Constitutional Speedy Trial.” The mere filing of a

motion is not sufficient to assert the right to a speedy trial; the motion also must be

“presented” to the trial court. See Maddox v. State, 635 S.W.2d 456, 458 (Tex.

App.—Fort Worth 1982, no pet.) (“Although a motion to dismiss the charging

instrument alleging the State’s failure to provide a speedy trial is on file, it is

incumbent on an accused to present such motion to the court before the day of trial.

Failure to do so constitutes a waiver of a defendant’s rights under the Act.”); see

also Ussery v. State, 596 S.W.3d 277, 288 (Tex. App.—Houston [1st Dist.] 2019,

pet. ref’d).

The record does not reflect that Perez did anything to present the motion to

the trial court or that the trial court ever considered the motion. Hence, this issue

has not been preserved for our review. See TEX. R. APP. P. 33.1(a); see also Henson,

407 S.W.3d at 768–69; Laird v. State, 691 S.W.3d 30, 42 (Tex. App.—Austin 2023,

pet. ref’d) (“[M]any of our sister courts have held that pro se filings . . . are not

8 assertions of the speedy-trial right . . . absent evidence in the record that they were

considered and ruled on by the trial court. . . . Because Laird’s pro se motions were

not ruled on, and there is no evidence in the record that the letters or motions were

considered by the trial court, we cannot find that they amounted to an assertion of

his right to a speedy trial[.]”).

Moreover, even assuming Perez had presented his motion to the trial court,

his speedy-trial argument would not be preserved because the trial court could

properly disregard it. Perez filed his motion when he was represented by Boncek.

“A defendant has no right to hybrid representation, and, as a consequence, a trial

court is free to disregard any pro se motions presented by a defendant who is

represented by counsel.” Jenkins v. State, 592 S.W.3d 894, 902 n.47 (Tex. Crim.

App. 2018); see also Buchanan v. State, No. 02-19-00311-CR, 2020 WL 4518588,

at *7 n.6 (Tex. App.—Fort Worth Aug. 6, 2020, pet. ref’d) (mem. op., not designated

for publication).3

3 Even if Perez had preserved his speedy-trial argument, we would conclude he was not deprived of the right to a speedy trial under a balancing of the factors set forth in Barker v. Wingo: (1) length of the delay; (2) reason for the delay; (3) assertion of the right; and (4) prejudice to the accused. See 407 U.S. 514, 530 (1972). The first factor weighs against the State due to the over three-and-a-half-year interval between Perez’s arrest and trial, and the second factor may weigh slightly against the State because the record is generally silent about reasons for the delay. See Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). But the third and fourth factors weigh heavily against Perez because he did little to assert this right in the trial court, including failing to mention it at a hearing during which the trial court expressed Perez was delaying things by refusing to cooperate with his counsel, and his prejudice arguments consist of conclusory assertions in his pro se motion that 9 We overrule Perez’s second issue.

Conclusion

We affirm the trial court’s judgment.

Andrew Johnson Justice

Panel consists of Chief Justice Adams and Justices Caughey and Johnson.

Do not publish. TEX. R. APP. P. 47.2(b).

“defense witnesses are becoming unavailable” and on appeal that he experienced “anxiety and trepidation” from his pretrial confinement. See Cantu v. State, 253 S.W.3d 273, 286 (Tex. Crim. App. 2008) (“[E]vidence 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.”); Ragsdale v. State, 713 S.W.3d 435, 448 (Tex. App.—Houston [1st Dist.] 2025, no pet.) (explaining Barker test must be applied with common sense to ensure radical remedy of dismissal is implemented only when defendant’s actual and asserted interest in speedy trial has been infringed).