John Ortiz v. State

• Court: Court of Appeals of Texas
• Decided: November 30, 2018
• Docket: 07-17-00317-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00317-CR

JOHN ORTIZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. 2015-408,046, Honorable Jim Bob Darnell, Presiding

November 30, 2018

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

A jury convicted appellant, John Ortiz, of felony driving while intoxicated.1 In his

sole issue on appeal, appellant contends that he was denied his constitutional right to a

speedy trial. We affirm.

1 See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2018). Background

Around 10:00 p.m. on October 25, 2015, six 911 calls were made regarding a

vehicle going the wrong way on Loop 289 in Lubbock. An officer soon caught up with the

complained-of vehicle, which was traveling southbound in the northbound lane. The

officer initiated a stop, which led to appellant’s arrest for driving while intoxicated. A blood

draw taken with appellant’s consent revealed that his blood-alcohol concentration was

0.238 grams of alcohol per 100 milliliters of blood.

Because he had two prior convictions for DWI, appellant was charged with felony

DWI. Appellant pleaded not guilty to the charge and not true to the two prior convictions.

Following a trial in June of 2017, a jury found appellant guilty and assessed punishment

at twenty years’ confinement.

Discussion

In his sole issue, appellant contends that his constitutional right to a speedy trial

was violated because his trial occurred one year, seven months, and twenty-five days

after he was arrested. The State argues appellant failed to preserve this issue for our

review. We agree.

The Sixth Amendment of the United States Constitution, made applicable to the

states through the Fourteenth Amendment, guarantees an accused the right to a speedy

trial. U.S. CONST. amends. VI, XIV; Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim.

App. 2014). When we analyze speedy trial claims, we apply the factors set forth in Barker

v. Wingo: (1) the length of the delay, (2) the reason for the delay, (3) the assertion of the

right, and (4) the prejudice to the accused. Gonzales, 435 S.W.3d at 808 (citing Barker

2 v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)). The Court of

Criminal Appeals has held that an appellant must properly raise a complaint about a

speedy-trial violation in the trial court to preserve the issue for appellate review. Henson

v. State, 407 S.W.3d 764, 768-69 (Tex. Crim. App. 2013).

The record before us reflects an almost twenty-month interval from appellant’s

arrest in October of 2015 to his trial in June of 2017. During that time, appellant’s counsel

did not request a speedy trial. He did, however, file a “Motion to Set Aside Indictment for

Failure to Afford Constitutional Right to Speedy Trial” on May 5, 2017. And while the only

relief appellant sought was dismissal of the indictment, that motion served as notice of

appellant’s speedy trial claim. See, e.g., Phillips v. State, 650 S.W.2d 396, 401 (Tex.

Crim. App. 1983) (explaining that motion to dismiss notifies the State and court of the

speedy trial claim, but a defendant’s motivation in asking for dismissal rather than prompt

trial may attenuate the strength of his claim). But the record does not show that appellant

set the motion for hearing or obtained a ruling on it. Further, appellant did not re-urge his

motion prior to the beginning of trial on June 19, 2017.

As we observed in Flores v. State, “preservation of error for violation of the right to

a speedy trial involves more than the mere filing of a motion.” Flores v. State, No. 07-16-

00071-CR, 2018 Tex. App. LEXIS 1479, at *19-20 (Tex. App.—Amarillo Feb. 26, 2018,

pet. ref’d) (mem. op., not designated for publication) (finding speedy-trial claim not

preserved where motion was not presented or brought to the trial court’s attention, no

evidence was presented, and no ruling was sought or obtained). Like the defendant in

Flores, appellant did not bring his complaint to the trial court’s attention, seek or obtain a

ruling from the trial court, or present evidence that would allow the trial court or this Court

3 to assess the merits of appellant’s complaint under a Barker analysis. In the face of such

a record, we must conclude that appellant preserved nothing for our review.

Consequently, we overrule this issue.

Conclusion

Having overruled appellant’s sole issue on appeal, we affirm the judgment of the

trial court.

Judy C. Parker Justice

Do not publish.