Henson, Kevin Ray

407 S.W.3d 764, 2013 Tex. Crim. App. LEXIS 1313, 2013 WL 4820220
Court of Criminal Appeals of Texas·Decided September 11, 2013·No. PD-1249-12·Published·Cited by 130 cases

Opinions

WOMACK, J.,

delivered the opinion of the Court,

in which KELLER, PJ., PRICE, JOHNSON, KEASLER, HERVEY, COCHRAN, and ALCALA, JJ., joined.

We granted the appellant’s petition for discretionary review to address whether a defendant must raise a speedy-trial claim in the trial court in order to preserve that issue for appellate review. Holding that he must, we affirm the holding of the First Court of Appeals.

I

On April 11, 2008, the appellant was involved in a violent altercation with a friend in which he stabbed the friend 11 times. The appellant was arrested, and, on May 9, 2008, the State charged him with aggravated assault, a third-degree felony.1

The appellant’s case was reset several times because the appellant had difficulty getting and keeping counsel. Finally, on January 80, 2009, the trial court appointed counsel. After that, the case was reset for pretrial hearings and conferences. On January 2, 2010, the State filed an agreed motion for continuance because a witness was sick. The next day, the judge granted the State’s motion and added the notation, “Def. ready.” The case was reset seven more times before the trial began on March 4, 2011. In total, the case was reset 25 times over three years.

The appellant agreed to every reset in this case. Each reset form states, “The undersigned Counsel hereby agrees this case is reset for [type of hearing] to [date].” The State, the appellant, and (when the appellant had one) his trial counsel signed each form. At no point throughout this process did the appellant object to these delays or file a speedy-trial motion. The first time the appellant raised the issue of a speedy-trial violation was on appeal to the Court of Appeals, which affirmed the judgment of conviction.2

II

The Sixth Amendment to the United States Constitution guarantees an accused the right to a speedy trial. This ensures that the defendant is protected from oppressive pretrial incarceration, mit: igates the anxiety and concern accompanying public accusations, and ensures that the defendant can mount a defense.3 However, the speedy-trial right is different from other constitutional rights because the deprivation of the right can benefit the defendant.4 Delay can cause witnesses to become unavailable or can cause their [767]*767memories to fade, making it more difficult for the prosecution to meet its burden of proof.5 Because of these competing interests, the speedy-trial right is “a more vague concept than other procedural rights.”6 There is no fixed amount of delay that is too much.

The right to a speedy trial attaches when a person becomes an accused. This can be when he is arrested or when he is charged.7 The Supreme Court has stated that courts must analyze these claims on an ad-hoc basis by applying a fact-specific balancing test.8 This test has four factors: the length of the delay, the reason for the delay, the defendant’s assertion of his right, and the prejudice inflicted by the delay.9

The question before us is whether a defendant must first preserve error for appellate review through a timely objection in the trial court before he is entitled to such an analysis.10

Ill

The preservation requirement is that “[u]nless a litigant ... moves to avail himself of a procedural benefit ... no such benefit inures.... Because the judge has no independent duty in this regard, his failure ... isn’t error about which complaint might later be made on appeal.”11 In order to preserve error for appellate review, a defendant must make a timely request, objection, or motion in the trial court (regardless of whether or not the error complained of is constitutional). This rule applies to all but the most fundamental rights. The only exceptions are two relatively small categories of error: rights which are waivable only and denials of absolute, systemic requirements. Such errors may be raised for the first time on appeal.12 Neither this court nor the Supreme Court has ever clearly held that the right to a speedy trial requires preservation or cannot require preservation.

In Barker, the Supreme Court distinguished the speedy-trial right from typical fundamental rights, as to which the State bears the entire burden of proving that the defendant made a knowing and voluntary waiver. “We do not depart from our holdings in other cases concerning the waiver of fundamental rights, in which we have placed the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made. Such cases have involved rights which must be exercised or waived at a specific time or under clearly identifiable circumstances ....”13

Contrary to the appellant’s assertion, Barker did not reject the notion that a defendant may be required to preserve a speedy-trial claim. It stated that the defendant does bear some responsibility for [768]*768asserting the right.14 What Barker actually rejected was a very specific “demand-waiver” rule: one in which a defendant waives his right to a speedy trial as to any period before he demanded that his right be honored.15

Just as Barker does not specifically address the issue, our own case law is far from consistent. We have never held that a speedy-trial right is waivable-only or systemic in nature. However, before Marin, we delivered many opinions that ignored the issue of preservation entirely and, in some cases, held that the defendant had not waived16 his rights.17 We did not explain if or why the right was waivable only rather than subject to the more typical rules of preservation.18 Further complicating matters, in recent cases, we have held that the speedy-trial right must be preserved.19 Unfortunately, these recent opinions do not offer any justification for our change' of course nor do they cite authority.20

IV

We are persuaded that the preservation requirements do apply to speedy-trial claims for several reasons. The vast majority of errors must be preserved. It is informative to look at the few rights that warrant an exception to this rule. Waivable-only rights include the right to assistance of counsel, trial by jury, and a statutorily mandated right that appointed counsel have ten days before trial to prepare. Absolute, systemic requirements include personal jurisdiction, subject-matter jurisdiction, and a penal statute’s being in compliance with the separation of powers section of our state constitution.21

[769]*769One notable difference between these rights and the right to a speedy trial is that the other rights do not have so great an incentive for the defendant to sleep on his rights. As has been discussed, the deprivation of a speedy trial often can benefit the appellant. Without a requirement of preservation, a defendant would have great incentive not to insist upon a speedy trial and then to argue for the first time on appeal that the prosecution should be dismissed because of delay.

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Henson, Kevin Ray, 407 S.W.3d 764, 2013 Tex. Crim. App. LEXIS 1313, 2013 WL 4820220 (Tex. 2013).

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