Jack A. Carlton v. Co-Banks, Inc., F/K/A National Bank for Cooperatives, A/K/A CoBank, ACB, A/K/A Associated Colorado Banks, Inc., and H. C. Brillhart, Jr.

Opinion

NO. 07-02-0258-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

APRIL 1, 2003

______________________________

JACK A. CARLTON, APPELLANT

V.

COBANK, INC., A/K/A NATIONAL BANK FOR COOPERATIVES, A/K/A COBANK, ACB, A/K/A ASSOCIATED COLORADO BANKS, INC. AND H.C. BRILLHART, JR., APPELLEES

_____________________________________

FROM THE 84^TH DISTRICT COURT OF OCHILTREE COUNTY;

NO. 10261; HONORABLE WILLIAM D. SMITH, JUDGE

_______________________________

Before REAVIS and CAMPBELL, JJ. and BOYD, S.J. ⁽¹⁾

MEMORANDUM OPINION ⁽²⁾

Jack A. Carlton challenges a take-nothing judgment on his action against CoBank, Inc., f/k/a National Bank for Cooperatives, a/k/a CoBank, ACB, a/k/a Associated Colorado Banks, Inc. (CoBank) and H.C. Brillhart, Jr., and the award of attorney's fees and court costs against him. By his first three issues, Carlton contends the trial court erred because: (1) as submitted, question one of the jury charge deprived Carlton of the submission of his DTPA ⁽³⁾ claims; (2) question number one was not a broad form question and amounted to a comment on the weight of the evidence; and (3) it denied Carlton's motion to impose a constructive trust on the monies received by Brillhart.

Next, Carlton asserts the evidence conclusively established: (4) CoBank committed fraud against him, and the jury's finding of no fraud was against the great weight and preponderance of the evidence; (5) CoBank engaged in deceptive trade practices against him; (6) he sustained out-of-pocket damages directly related to the inability to purchase the equipment, and the jury's finding of no damages was against the great weight and preponderance of the evidence; (7) his bid letter conformed to the bid offering letter, and the jury's finding to the contrary was against the great weight and preponderance of the evidence; and (8) as a matter of law, he sustained damages, his bid conformed with the bid offering letter, and CoBank committed fraud.

Finally, Carlton maintains (9) his DTPA claims were not groundless, and (10) the trial court erred by granting the declaratory relief requested by CoBank and Brillhart because declaratory judgment actions could not be asserted as counterclaims for a dispute already pending before the trial court. Based upon the rationale expressed herein, we affirm.

Stramit USA was a strawboard manufacturing business located in Perryton, Texas that went out of business. Brillhart, a resident of Perryton, was a Stramit investor and a member of the Board of Directors. CoBank, which had offices in Wichita, Kansas, loaned money to Stramit, and secured its loan with strawboard manufacturing equipment.

In 1996 Stramit defaulted on its loans to CoBank and ceased operations. Initially, Stramit attempted to voluntarily liquidate the equipment, primarily through the efforts of a few of its board members, including Brillhart. When those efforts failed, however, CoBank decided to proceed with a foreclosure sale.

CoBank did not have an office or representative in Perryton. When Brillhart offered to show the equipment to prospective buyers, CoBank gave him a key to the Stramit building. CoBank then instructed Carlton and other interested persons to contact Brillhart or Carl Ellis, one of the other board members, about inspecting the equipment.

On November 13, 1996, CoBank sent invitations to bid on the equipment to a number of prospective buyers, including Carlton and Brillhart. After contacting Brillhart, Carlton went to Perryton and inspected the equipment. At that time, Brillhart told Carlton he intended to bid on the equipment. According to Carlton, Brillhart also told him that he was the agent for CoBank and would get the "last look" at the bids. In addition to the Perryton trip, Carlton traveled to England to confer with the manufacturer of the equipment.

On December 2, 1996, the bids were opened at the CoBank office in Wichita. Although Carlton's bid was the highest, CoBank declined to accept it because the bid imposed conditions on the sale not included in the solicitation letter. CoBank then accepted the lower bid of Brillhart, and the equipment was sold to him.

By his trial pleadings, Carlton alleged five causes of action, which he designated as (1) fraud against CoBank and Brillhart; (2) conspiracy between CoBank and Brillhart; (3) agency; (4) deceptive trade practices under the Texas DTPA; and (5) breach of contract. In addition to defenses, CoBank and Brillhart presented counterclaims seeking the award of attorney's fees on the basis that Carlton's DTPA action was groundless and, alternatively, under the Uniform Declaratory Judgments Act. Tex. Civ. Prac. & Rem. Code Ann. § 37.001, et seq. (Vernon 1997). Based upon the jury findings, the trial court signed a judgment denying Carlton any recovery and awarding CoBank and Brillhart each attorney's fees in the amount of $17,500.

At the outset, we note that issues three and six address claims against only Brillhart while issues one, two, four, five, seven, and eight address claims against CoBank alone. Issues nine and ten address the award of attorney's fees to CoBank and Brillhart. Because Carlton's contentions are not common as to CoBank and Brillhart, we will divide our analysis into three sections.

Claims Against Brillhart

By his third issue, Carlton contends the trial court erred in denying his motion to impose a constructive trust on the monies received by Brillhart. We disagree. The trial court signed a take-nothing judgment against Carlton on March 21, 2002. Because Carlton did not file his motion to impress a constructive trust until June 10, 2002, more than 30 days after the judgment was signed, his motion was not timely filed. See Tex. R. Civ. P. 329b(g). Moreover, a constructive trust is imposed to redress wrong or prevent unjust enrichment. Trostle v. Trostle, 77 S.W.3d 908, 915 (Tex.App.--Amarillo 2002, no pet.). In this case, Carlton offered no evidence to establish Brillhart was unjustly enriched. Carlton's third issue is overruled.

By his sixth issue, Carlton contends the evidence established he sustained out of pocket damages directly related to his inability to purchase the equipment, and the jury finding of no damages was against the great weight and preponderance of the evidence. ⁽⁴⁾ We disagree. By its answer to question eight, the jury found Brillhart's conduct was not the proximate cause of any damages to Carlton. The evidence, Carlton contends, established he sustained out-of-pocket damages as a result of traveling to Perryton and elsewhere in preparation for his bid. However, the record reveals Carlton went to Perryton at the suggestion of CoBank's representative Dave Ehret, not Brillhart. Moreover, by Carlton's own admissions, Brillhart did not say or do anything to cause him to do anything except travel to England to speak with the equipment manufacturer. The jury could easily have found Carlton's travel expenses to England were unreasonable and not a foreseeable result of Brillhart's alleged conduct. Consequently, the jury's findings that Carlton suffered no damages is not against the great weight and preponderance of the evidence. Carlton's sixth issue is overruled.

Claims Against CoBank

By his first issue, Carlton maintains the inclusion of jury question one was reversible error because it deprived him of the submission of his DTPA claims. Specifically, Carlton complains it was error for the trial court to submit questions two, three, and four conditioned on the jury's answer to question one. Then, by his second issue, he contends the inclusion of question one was reversible error because it was not a broad form question and amounted to a comment on the weight of the evidence. We disagree.

Because issues one and two raise questions of charge error, we will consider them together. At the charge conference, Carlton's counsel announced:

Your Honor, for the record Plaintiff will object to the inclusion of Question 1. We think it is a question that deals ultimately with the issue here and it's not in broad form. Other than that, we have no objection.

A party must object and distinctly point out the objectionable matter and grounds of an objection. Tex. R. Civ. P. 274. An objection that does not meet both requirements of the rule does not preserve error for appeal. Castleberry v. Branscum, 721 S.W.2d 270, 276 (Tex. 1986). Carlton's objection at the charge conference did not challenge the conditional nature of questions two, three, and four. Neither did his trial objection elaborate on how question one was harmful or erroneous for not being in broad form, nor did the objection challenge the question as a comment on the weight of the evidence. Accordingly, Carlton's contentions were not preserved. See Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 484 (Tex.App.--Houston [1^st Dist.] 1993, writ denied) (holding an objection at trial that is not the same as the objection urged on appeal presents nothing for appellate review). Furthermore, the manner in which the jury is charged is generally within the discretion of the trial court. Campbell v. C.D. Payne & Geldermann Sec., Inc., 894 S.W.2d 411, 420 (Tex.App.--Amarillo 1995, writ denied). Considering the announcement of counsel at the charge conference, we conclude the trial court did not abuse its discretion in submitting the questions as it did. Issues one and two are overruled.

By his fourth issue, Carlton asserts the evidence conclusively established CoBank committed fraud, and the jury finding of no fraud was against the great weight and preponderance of the evidence. Specifically, Carlton maintains CoBank misrepresented the manner in which the sale of the equipment would be conducted, the operational status of the equipment, the outcome of the sale, and the existence of liens on the equipment. We disagree.

The elements of common law fraud are that: (1) a material misrepresentation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the representation was made with the intention that it be acted upon by the other party; (5) the party acted in reliance upon the representation; and (6) the party suffered injury. Johnson & Higgins of TX v. Kenneco Energy, 962 S.W.2d 507, 524 (Tex. 1998). The trial court in this case submitted essentially the same definition of fraud to the jury in question five.

Assuming arguendo CoBank, in fact, made misrepresentations to Carlton regarding the bid process and the equipment to be sold, Carlton offered no testimony to establish he relied upon those misrepresentations or that they caused him any damages. Therefore, we cannot say the jury's finding that CoBank did not engage in fraud is against the great weight and preponderance of the evidence. Carlton's fourth issue is overruled.

Carlton contends by his seventh issue that the jury finding related to his bid letter was against the great weight and preponderance of the evidence. We disagree. In response to CoBank's invitation to bid, Carlton submitted a written bid on December 1, 1996, conditioned upon the following terms:

[CoBank] providing title in Fee, free of any other leins [sic], mortgage assesments [sic], or any other form of encumberance [sic] what ever [sic].

[CoBank's] indemnification against any cost or expense of any kind, including legal fees concerning this acquisition.

[Carlton] ha[ving] the unfettered right to approve or disapprove, in his own Judgment, whether or not proper title is being transferred.

The completed product inventory is not included. Add the sum of $30,000 if this inventory is to be included. Inventory subject to Bidders [sic] physical inspection and Bidders [sic] approval of same.

Even if the invitation to bid constituted an offer to sell that could not be withdrawn, Carlton's submission of the foregoing conditions amounted to a rejection of the offer. See Texas State Optical, Inc. v. Wiggins, 882 S.W.2d 8, 11 (Tex.App.-Houston [1^st Dist.] 1994, no writ). Consequently, we conclude the jury's finding that Carlton's letter did not conform to CoBank's invitation to bid letter was not contrary to the great weight and preponderance of the evidence. Carlton's seventh issue is overruled.

By his fifth issue, Carlton contends the evidence conclusively established CoBank engaged in deceptive trade practices against him. We disagree. Question two of the court's charge asked whether CoBank engaged in any false, misleading, or deceptive act or practice, which was a producing cause of damages to Carlton. However, because question two was conditioned upon an affirmative answer to question one, the jury did not reach it. Our conclusion that Carlton failed to preserve error with respect to the submission of questions one, two, three, and four renders Carlton's complaint against the jury's lack of a finding with respect to his DTPA claims moot. Accordingly, Carlton's fifth issue is overruled.

By his eighth issue, Carlton contends the evidence at trial proved as a matter of law that he sustained damages, his bid conformed with the bid offering letter, and CoBank committed fraud. Our disposition of Carlton's fourth and seventh issues pretermits our consideration of his eighth issue. Accordingly, Carlton's eighth issue is overruled.

Counterclaims by CoBank and Brillhart

By his ninth issue, Carlton contends the evidence established his DTPA claims were not groundless. Then, by his tenth issue, he asserts declaratory relief was not available to CoBank and Brillhart. Also, by these issues, Carlton claims the trial court's award of attorney's fees to CoBank and Brillhart was erroneous. We disagree.

CoBank and Brillhart sought attorney's fees under both the DTPA and the Uniform Declaratory Judgments Act. Carlton filed no answer to the counterclaims and presented no special exceptions to the claim for attorney's fees under the DTPA; therefore, his issues present nothing for review. See Tex. R. Civ. P. 90; see also National Farmers Union Prop. v. Degollado, 844 S.W.2d 892, 900 (Tex.App--Austin 1992, writ denied). Moreover, in order to preserve a complaint for appellate review, the record must show the appellant presented an objection in the trial court. See Tex. R. App. P. 33.1; see also Williamson v. New Times, Inc., 980 S.W.2d 706, 711 (Tex.App.--Fort Worth 1998, no pet.). Because the record here does not show the required objections in the trial court, Carlton presents nothing for review. Issues nine and ten are overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. Tex. R. App. P. 47.2(a).

3. The subchapter under which appellant proceeded is designated the Deceptive Trade Practices-Consumer Protection Act. Tex. Bus. & Com. Code Ann. § 17.41, et seq. (Vernon 2002). For the sake of brevity, we will refer to the act as the DTPA.

4. Though Carlton does not identify which jury question he challenges under this issue, we presume he disputes the finding of zero damages in response to question number eight.

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NO. 07-10-0051-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

 JULY 22, 2011

JOSE LUIS RODRIGUEZ, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 181^ST DISTRICT COURT OF RANDALL COUNTY;

NO. 20,070-B; HONORABLE JOHN B. BOARD, JUDGE

Before CAMPBELL and PIRTLE, JJ. and BOYD, S.J.[1]

MEMORANDUM OPINION

            Appellant, Jose Luis Rodriguez, was convicted by a jury of possession with intent to deliver a controlled substance, cocaine, in an amount of 400 grams or more[2] and assessed punishment of eighty years confinement and a $250,000 fine.  In three issues, Appellant asserts (1) the evidence in support of his conviction is legally and (2) factually insufficient and (3) the trial court abused its discretion in denying Appellant's motion to dismiss for lack of speedy trial.  We affirm.   

Background

            On July 24, 2008, a complaint was filed alleging that on or about September 21, 2007, Appellant intentionally and knowingly possessed, with intent to deliver, a controlled substance, to-wit: cocaine, in an amount by aggregate weight, including adulterants or dilutants, of 400 grams or more.  Appellant was not arrested on the complaint at that time because he was already incarcerated.[3]  A Randall County Grand Jury subsequently returned an indictment on September 10, 2008, alleging the same offense, and a capias was issued but not executed.  Pursuant to a bench warrant issued November 21, 2008, Appellant was transferred from the Wheeler State Jail Unit in Hale County, to the Randall County Jail on December 5, 2008; however, he was not arraigned on the indictment until April 1, 2009.  An attorney was appointed to represent him on May 22, 2009, and on June 4, 2009, Appellant moved to dismiss the State's cause for lack of a speedy trial.  The trial court denied his motion on June 26, 2009, and a four day jury trial commenced on February 1, 2010.

            During the trial, the State adduced evidence that, on the morning of September 21, 2007, the Narcotics Enforcement Team for the Randall County Sheriff's Office and SWAT Team for the Amarillo Police Department executed a "no knock" search warrant at 6700 Hollywood Road, Amarillo, Texas (house).  While evidence recovered at the scene indicated that the house had been occupied by at least three persons: Appellant, Sam Jalomo, Jr., and Angel Gutierrez; Jalomo was the only person present when the warrant was executed.  When the police entered, Jalomo was located in the southeast bedroom.[4]  As officers searched the house, they found evidence of a drug packaging and sales operation in nearly every room.  In the attic, officers found four kilograms of cocaine packaged as compressed bricks in a blue gym bag.  In the laundry room, they found a black duffle bag containing marijuana residue, and, in the living room, a magazine for a semi-automatic rifle and duct tape.[5]  On the kitchen counter was a heat sealing machine with a roll of heat seal packages.[6]  On a roll of heat seal packages were the fingerprints of Appellant, Marybell Delarossa (Appellant's girlfriend) and Kathy Okechukwu (Jalomo's girlfriend). 

            In the southeast bedroom, or Jalomo's bedroom, officers found $1400 in cash, $930 in Jalomo's shirt pocket and $470 on the counter in the bathroom.  More than two grams of cocaine were scraped from the bathroom counter and forty-one plastic Ziploc baggies individually filled with cocaine totaling 1.15 kilograms were found in a shoebox underneath the lavatory.  The officers also found a black ceramic plate encrusted with cocaine containing a spoon with Appellant's and Jalomo's fingerprints on the bottom of the plate.[7]  There was also a plastic bag containing two boxes of baking soda and three digital scales covered with a white residue.[8]  Underneath Jalomo's bed was a Norvinco SKS semi-automatic rifle with a magazine.[9]  Officers also found a travel document confirming a six-day trip to Las Vegas, Nevada, for Jalomo and Okechukwu, including hotel accommodations costing $1,297.50.[10]

            In the northwest, or Gutierrez's bedroom, the officers found an address book, 9 millimeter handgun ammunition, marijuana grinder, marijuana and two bundles of plastic Ziploc baggies.[11]  The officers also found airplane ticket stubs naming Appellant and his girlfriend, Delarossa.  In the bottom of Gutierrez's closet, the officers found a large black plastic garbage bag that contained a second bag containing packaging materials used to transport drugs, i.e., five to ten used packages for cocaine bricks made using cardboard, plastic with heat seals and tape.  Some of the items had white powder on them.  Appellant's fingerprints were found on a baking soda container in the second bag.

In the northeast, or Appellant's, bedroom,[12] the officers found a bottle of inositol on the bathroom counter.[13]  In the medicine cabinet area, officers found a plastic container holding Q-Tips, little plastic baggies and a set of digital scales.  White powder was found in the bottom of the container and on the digital scales.  Appellant's fingerprints were on the bottom of the plastic container.  The officers also found court documents signed by Appellant, an envelope postmarked August 13, 2007, addressed to Appellant in Canyon, Texas, and two airline baggage claim stubs naming Appellant and Delarossa. 

            At trial, Gutierrez testified that he, Appellant and Jalomo "go way back" and "grew up together in Dumas," Texas.  According to Gutierrez, Appellant "knew what was going -- he knew what my homeboy [Jalomo], was doing," but "didn't have no part in it."   Gutierrez testified that Jalomo and Appellant had been living at the house for several months before he moved in.  He further testified that five bricks of cocaine were delivered the night before the search.  He and Jalomo cut one brick with baking soda on a plate in Jalomo's bedroom and measured out the cocaine into forty-one plastic baggies that were subsequently stored in a shoebox underneath Jalomo's lavatory.[14]  He further testified Appellant did not know five kilograms of cocaine had been delivered to the house the night before the search. 

            After leaving the house to pick up his girlfriend the day of the search, Gutierrez observed police officers descending on the house and immediately called Appellant and "told him that the cops had hit the house that they were staying at."  He did not call anyone else.  Thereafter, he went to an apartment where Appellant's girlfriend stayed and picked him up.  They then attempted to hide Jalomo's red BMW because they knew authorities would seize the vehicle after the search.  Of the three residents, Jalomo was the only one arrested that day.  Gutierrez and Appellant were subsequently arrested pursuant to warrants issued in conjunction with the filing of criminal charges.[15]  

            At the trial's conclusion, the jury convicted Appellant, sentenced him to eighty years confinement and fined him $250,000.  This appeal followed. 

Discussion

            In his first and second issues, Appellant contends the evidence is legally and factually insufficient to sustain his conviction for the knowing or intentional possession of the amount of cocaine alleged.  He also asserts by a third issue that the trial court abused its discretion by denying his motion to dismiss for lack of a speedy trial.   

I.          Sufficiency of the Evidence

            A.        Standard of Review

            Since Appellant's brief was filed, the Texas Court of Criminal Appeals has held that the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979).  See Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010).^[16]  Under that standard, in assessing the sufficiency of the evidence to support a criminal conviction, this Court considers all the evidence in the light most favorable to the verdict and determines whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 912.[17]  This standard gives full play to the responsibility of the trier of fact to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.  Jackson, 443 U.S. at 319.  See Hooper v. State, 214 S.W.3d 9, 15 (Tex.Crim.App. 2007). 

            Further, the trier of fact is the sole judge of the weight of the evidence and credibility of the witnesses; Tex. Code Crim. Proc. art. 38.04 (West 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000), and we may not re-evaluate the weight and credibility determinations made by the fact-finder.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999).  Thus, we resolve any inconsistencies in the evidence in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000).

            In addition, each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction.  Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004) (citing Alexander v. State, 740 S.W.2d 749, 758 (Tex.Crim.App. 1987)).  Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.  Hooper, 214 S.W.3d at 13.  Accordingly, we will affirm the judgment of the trial court if the evidence is sufficient to prove Appellant's guilt under any theory authorized in the jury charge.  See Fuller v. State, 827 S.W.2d 919, 931 (Tex.Crim.App. 1992) cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993) ("It is well-settled that when a general verdict is returned and evidence is sufficient to support a finding of guilt under any of the paragraph allegations submitted the verdict will be upheld.")[18]

B.        Law of the Parties -- Possession of a Controlled Substance

            To establish unlawful possession of a controlled substance, the State must prove (1) that the defendant exercised care, custody, control, or management over the contraband and (2) that the defendant knew that what was possessed was contraband.  Salazar v. State, 95 S.W.3d 501, 504 (Tex.App.--Houston [1st Dist.] 2002, pet. ref'd).  In this case, however, the jury was authorized to find Appellant guilty under the law of parties.[19]  Thus, to prove Appellant was criminally responsible as a party, the State was required to prove that another person was guilty of the charged offense; see Torres v. State, 233 S.W.3d 26, 30 n.2 (Tex.App.--Houston [1st Dist.] 2007, no pet.), and Appellant, "acting with intent to promote or assist the commission of the offense," "solicited, encouraged, directed, aided, or attempted to aid the other person to commit the offense."  Tex. Penal Code Ann. § 7.02(a)(2) (West 2011).  See Torres, 233 S.W.3d at 30 n.2.    

            Gutierrez admitted while testifying at trial to knowingly having care, custody, control, or management over the cocaine located in the house where Appellant was also staying.  Furthermore, Jalomo was in actual possession of the cocaine at the time the search warrant was executed.  Therefore, the issue is whether Appellant acted with intent to assist either Gutierrez's or Jalomo's commission of the offense by aiding their possession, with intent to deliver, of the cocaine recovered from the house.  See Salazar, 95 S.W.3d at 505.  In our analysis of this issue, we "look at 'events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.'"  Guevara, 152 S.W.3d at 49 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1987)).

            The State's evidence showed that Appellant was living in a house with persons he had known since childhood and knew that Jalomo and Gutierrez were involved in the packaging and resale of cocaine.  Appellant and his girlfriend accompanied Jalomo and his girlfriend by airplane to Las Vegas for a six-day trip despite the fact that neither he nor Jalomo was gainfully employed.  Throughout the house where Appellant had been living for months, there was clearly present empirical evidence that its inhabitants had been engaging in the packaging and resale of cocaine on a major scale.  There were four kilograms of cocaine stored in the attic, a plastic garbage bag containing five to ten used containers for bricks of cocaine, at least four sets of digital scales (all covered with a white powder residue), forty-one plastic baggies containing an ounce of cocaine each for resale, multiple boxes of plastic baggies used for resale of the cocaine and a semi-automatic rifle with two magazines for protection. 

            Specifically, in Appellant's room alone, there was a plastic container with Appellant's fingerprint that stored plastic baggies, a set of digital scales with white powder residue, a bottle containing a substance commonly used to cut cocaine, and an accumulation of white powder in the bottom of the plastic container.  In his room, Appellant also stored personal items, clothing, toiletries, court documents, other legal documents and his airline baggage claim stub.  In Jalomo's room, a black ceramic plate used to cut cocaine had Appellant's and Jalomo's fingerprints on its bottom and, in Gutierrez's room, Appellant's fingerprint was found on a box of baking soda in a plastic bag that also contained five to ten used containers for cocaine bricks.  Appellant's airline ticket stubs were also found in Gutierrez's room.  In the kitchen, Appellant's fingerprints were identified on a roll of plastic used to heat seal money from the sale of cocaine for transportation to Mexico.  Further, when the police descended on the house to execute their search warrant, Gutierrez immediately called to warn Appellant and subsequently met Appellant to secrete Jalomo's BMW in an attempt to avoid its forfeiture.  This evidence reasonably implies that Appellant was not only knowledgeable of the drug operation at the house but participated in every facet of the enterprise. 

            Based on the totality of the evidence, a jury could have reasonably concluded that Appellant was a participant in an ongoing criminal enterprise involving the possession of cocaine with intent to deliver and he knew he was assisting the offense.  Although Gutierrez testified that Appellant did not participate in the purchase of any cocaine, the jury's verdict indicates they chose to believe the State's evidence and the reasonable inferences that can be drawn from the entirety of the State's case to conclude that Appellant took affirmative steps to assist, aid, and promote a criminal enterprise involving Jalomo and Gutierrez. 

            Further, although Appellant may not have been present when the five kilograms of cocaine were delivered, "[t]he Penal Code does not require that the party actually participate in the commission of the offense to be criminally responsible."  Guevara, 152 S.W.3d at 51.  Neither does the Penal Code "require that a party to the crime be physically present at the commission of the offense."  Id. (citing Morrison v. State, 608 S.W.2d 233, 234 (Tex.Crim.App. 1980)).  Therefore, after examining all of the evidence in the case in a light most favorable to the verdict, we conclude that a rational jury could have found all the elements of an aiding theory of party responsibility to be proven beyond a reasonable doubt.  Appellant's first two issues are overruled.

II.         Speedy Trial

            Appellant next asserts his right to a speedy trial was violated by an eighteen month delay between the time he was formally charged, July 24, 2008, and the date of his trial, February 1, 2010.  He also asserts his defense was prejudiced because (1) he was without an attorney for more than five months after he had been transferred from the Wheeler State Jail Unit in Hale County, Texas, to the Randall County Jail in Amarillo, Texas, and (2) the delay in bringing the charges to trial precluded him from securing a material witness.

            A.        Standard of Review

            In reviewing the trial court's ruling on Appellant's motion to dismiss for lack of speedy trial, we apply a bifurcated standard of review:  an abuse of discretion standard for factual components and a de novo standard for legal components.  Harrison v. State, 282 S.W.3d 718, 720 (Tex.App.--Amarillo 2009, no pet.) (citing Cantu v. State, 253 S.W.3d 273, 282 (Tex.Crim.App. 2008)).  While our review necessarily involves factual and legal conclusions, how these two interrelate "as a whole . . . is a purely legal question."  Id. (quoting Cantu, 253 S.W.3d at 282).  This is particularly so here where the facts are undisputed.

            B.  Barker Analysis

            Constitutional speedy-trial claims are analyzed on an ad hoc basis by weighing and then balancing the four factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).  These four factors are:  (1) length of delay, (2) reason for delay, (3) assertion of the right, and (4) prejudice to the accused.  Cantu, 253 S.W.3d at 280.  We consider the four factors together along with the relevant circumstances noting that no one factor possesses "talismanic qualities."  Harrison, 282 S.W.3d at 721 (quoting Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002)).

            While the State has the burden of justifying the length of the delay, the defendant has the burden of proving (1) the assertion of his right to a speedy trial and (2) the showing of prejudice.  Id. (citing Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973)).  The defendant's burden of proof on the latter two factors varies inversely with the State's degree of culpability for the delay, i.e., the greater the State's bad faith or official negligence and the longer its actions delay a trial, the less a defendant must show actual prejudice or prove diligence in asserting his right to a speedy trial.  Id. (citing Cantu, 253 S.W.3d at 280-81).

1.         Length of Delay

            The Barker test is triggered by a delay that is unreasonable enough to be presumptively prejudicial.  Id. (citing Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)).  While there is no set time element that triggers a Barker analysis, the Court of Criminal Appeals has held that a delay of four months is insufficient while a seventeen-month delay is sufficient.  Cantu, 253 S.W.3d at 281 (collected cases cited therein).

            Here, more than twenty-eight months passed between the time of the offense and the time of trial and more than eighteen months passed between the time formal charges were filed and the time of trial.  We find the length of delay factor weighs in favor of Appellant.  Thus, we will consider the three remaining Barker factors.

            2.  Reason for the Delay

            At the hearing on Appellant's speedy trial motion, both the State and defense counsel recognized that Appellant's case had simply "slipped through the cracks."  A "neutral" justification such as an overcrowded docket or mere negligence "should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant."  Harrison, 282 S.W.3d at 721 (quoting Barker, 407 U.S. at 531).  See Murphy v. State, 280 S.W.3d 445, 453 (Tex.App.--Fort Worth 2009, pet. ref'd) (stating lack of explanation for the delay weighs against the State but not greatly when there is no evidence that the prosecutor purposefully engaged in dilatory tactics).  Appellant offered no evidence that the State's delay was purposeful.  Accordingly, given that (1) Appellant was not arrested on the date of the alleged offense, (2) he was already incarcerated for another offense at the time formal charges were filed, (3) he was bench warranted to Randall County prior to completion of his state jail sentence in order to stand trial, (4) he was accorded a jury trial within 10 months of being arraigned, and (5) there was no evidence of a purposeful delay, we find the second Barker factor weighs only slightly in favor of a finding of a speedy trial violation. 

            3.         Timeliness of Asserted Speedy Trial Claim

            The third factor is concerned with the timeliness of a defendant's assertion of his right to a speedy trial.  See Harrison, 282 S.W.3d at 721 (citing Barker, 407 U.S. at 529).  Although the defendant has no duty to bring himself to trial, he does have a responsibility to assert his right to a speedy trial.  Cantu, 253 S.W.3d at 282.  Nonetheless, filing for a dismissal before seeking a speedy trial generally weakens a speedy trial claim because it indicates a desire to have no trial instead of a speedy one.  Id. at 283.  When this occurs, the defendant should provide cogent reasons for this failure to seek speedy trial before dismissal.  Id. 

            When Appellant learned of the charges pending against him in Randall County in July 2008, he was incarcerated at the Wheeler State Jail Unit.  He subsequently applied to be transferred to the custody of the Randall County Sheriff and, in December 2008, was transferred to the Randall County Jail.  Four months passed before he was arraigned and requested an attorney.  An attorney was appointed in May 2009, and Appellant filed his motion to dismiss for lack of a speedy trial in June 2009, approximately a month later.

            Given the delay between Appellant's transfer to Randall County and his subsequent arraignment four months later, we cannot say that Appellant unreasonably delayed in asserting his right to a speedy trial.  That said, however, Appellant provides no explanation why he failed to seek a speedy trial before dismissal.  Accordingly, we find this factor weighs in favor of neither party. 

            4.         Prejudice

            Because pretrial delay is often both inevitable and wholly justifiable; Cantu, 253 S.W.3d at 385, the fourth Barker factor examines whether and to what extent the delay has prejudiced the defendant.  Barker, 407 U.S. at 532.  Prejudice "should be addressed in the light of the interests of the defendants which the speedy trial right was designed to protect."  Id.  There are three such interests:  (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.  Id.  

            Appellant did not assert prejudice based upon oppressive pretrial incarceration or anxiety or concern.  Rather, he asserts that, because of the delay, a potential witness was unavailable.  To establish particularized prejudice based on an unavailable witness, a defendant must present proof both of the efforts made to locate the witness and that the witness would have benefitted his defense.  Harrison, 282 S.W.3d at 721.  Appellant did neither.[20]  Neither did Appellant present any evidence establishing he was prejudiced by being without an attorney during the four month period between when he was transferred to the Randall County Jail and his subsequent arraignment.  Thus, he has failed to establish particularized prejudice due to any delay.  This factor weighs against a finding of a speedy trial violation.

            E.        Weighing of Barker Factors

            While we are troubled by the ten month delay between the execution of the original search warrant and the filing of formal charges, the eighteen month delay between the filing of charges and the time of trial, as well as the four month delay between Appellant's transfer to custody in the Randall County Jail and his subsequent arraignment, we are cognizant of the fact that he was already incarcerated for a previous crime during much of this time and he was represented by counsel from May 2008 until his trial.  Further, prior to asserting his right to a speedy trial, he never requested a trial setting, and at the hearing on his motion, he failed to establish any particularized prejudice to his defense due to the delay, oppressive pretrial incarceration, anxiety or concern, or any cogent reason for his failure to seek a speedy trial before dismissal.  Accordingly, having weighed the Barker factors against the record, we find the trial court did not err in denying Appellant's motion to dismiss for a speedy trial violation.

Conclusion

            The trial court's judgment is affirmed. 

Patrick A. Pirtle

                  Justice

Do not publish.

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[1]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov't Code Ann. § 75.002(a)(1) (West 2005).

[2]See Tex. Health & Safety Code Ann. § 481.112 (a), (f) (West 2010).

[3]On February 11, 2008, Appellant was arrested for alleged violations of his felony probation in an unrelated cause.  On March 26, 2008, his probation was revoked and he was sentenced to 18 months State Jail in Cause No. 53,302-A, in the 47th District Court, Potter County, Texas.

[4]At trial, Gutierrez testified he lived at 6700 Hollywood Road at the time of the search and he stayed in the northwest bedroom while Jalomo stayed in the southeast bedroom and Appellant stayed in the northeast bedroom.  Gutierrez also testified that although Jalomo paid the rent, that neither Jalomo nor Appellant were employed. 

[5]Douglas Herrington, APD SWAT team member, testified that the roll of duct tape in the living room matched packaging materials used on the unopened cocaine bricks in the attic and packaging material on opened cocaine bricks throughout the house.

[6]Gutierrez also testified that the heat sealing machine was used to package money obtained from selling drugs prior to the money being delivered to Mexico.   

[7]Gutierrez testified that he used his hands or a spoon to process or cut the cocaine in Jalomo's bedroom using extenders such as baking soda on a plate similar to the plate encrusted with cocaine.

[8]Christopher Mayes, undercover narcotics officer, and Tommy Russell, APD narcotics agent, testified that digital scales were commonly used by narcotics dealers to measure quantities of drugs prior to resale.

[9]Gutierrez testified the rifle belonged to Jalomo and was kept for protection.

[10]Gutierrez testified that, shortly prior to the search, Appellant, Jalomo and their girlfriends traveled together to Las Vegas, Nevada. 

[11]Christopher Mayes, undercover narcotics officer, testified that Ziploc and sandwich baggies were commonly found in houses utilized by narcotics dealers.  He indicated the plastic baggies were normally used to package drugs for resale.

[12]Gutierrez testified that Appellant "had his stuff there," kept his clothes in his bedroom and slept there sometimes.  He also testified that he, Jalomo and Appellant "pretty much kept [their] stuff in [their] own room(s)."   

[13]Brandon Conrad, manager of the Texas Department of Public Safety Crime Laboratory in Amarillo, Texas, testified that cocaine was commonly cut or diluted using baking soda, inositol, benzocaine and lidocaine.

[14]He testified that each baggie was intended to contain an ounce or 28 to 30 grams of cocaine after being weighed on digital scales.  He estimated one ounce of cocaine was worth $500 to $600 on the street. 

[15]Gutierrez ultimately pled guilty and was sentenced to 25 years confinement.

[16]Judge Hervey delivered the opinion in Brooks, joined by Judges Keller, Keasler and Cochran; and, Judge Cochran delivered a concurring opinion, joined by Judge Womack.  Although we are not bound by a decision of four judges, Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex.Crim.App. 1999), we read the combined opinions of Judges Hervey and Cochran in Brooks as abandoning factual sufficiency as an evidentiary sufficiency standard of review distinct from legal sufficiency.

[17]The previously-applied factual sufficiency standard considers whether the evidence supporting guilt, though legally sufficient, is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury's verdict is against the great weight and preponderance of the evidence.  Grotti v. State, 273 S.W.3d 283 (Tex.Crim.App. 2008); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006).  Under that standard, the ultimate question is whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt.  Grotti, 273 S.W.3d at 283.  Even had we applied such a standard of review of the evidence, we could not sustain Appellant's contention.  From our review of the entire record, the finding of Appellant's guilt was neither clearly wrong and manifestly unjust nor against the great weight and preponderance of the evidence.

[18]The jury in this case returned a general verdict finding Appellant guilty of unlawful possession of a controlled substance with intent to deliver as alleged in the indictment.

[19]Paragraph 9 of the charge stated, in pertinent part, as follows:

A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.  Each party to an offense may be charged with the commission of the offense.

A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. 

*    *    *

In determining whether the defendant participated in an offense as a party, the jury may examine the events before, during, and after commission of the offense and may rely on any actions by the defendant that show an understanding and common design to commit the offense.

[20]At trial, Appellant re-urged his motion to dismiss for lack of a speedy trial based on the unavailability of two different witnesses but similarly failed to present any evidence of particularized prejudice.