Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-11-00907-CR
Lavelle SIMPSON, Appellant
v.
The STATE of Texas, Appellee
From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2009CR7681 Honorable Philip A. Kazen, Jr., Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice
Delivered and Filed: December 31, 2012
AFFIRMED
Lavelle Simpson waived his right to a jury trial, and the trial judge found him guilty of
the offense of felon in possession of a firearm. On appeal, Simpson presents three points of
error. First, Simpson challenges whether the evidence is legally sufficient to show: (1) he
exercised care, custody, control, or management over the firearm; (2) he voluntarily possessed
the firearm; and (3) he possessed the requisite culpable mental state. Next, Simpson asserts he
was not permitted to present evidence or a defense in violation of his rights to due process of law 04-11-00907-CR
and a fair trial. Finally, Simpson complains the trial court erred in failing to set aside the
indictment because he was denied his constitutional right to a speedy trial.
BACKGROUND
On April 4, 2009, Simpson was arrested for being a felon in possession of a firearm, and
he was bonded out of jail the following day. David McLane, who represented Simpson at trial
and now on appeal, was appointed as counsel on April 6, 2009. On July 20, 2009, the grand jury
indicted Simpson for possessing a firearm within five years of being released from confinement
or supervision for a felony conviction. 1 On January 11, 2010, the trial court called Simpson’s
cause, but Simpson failed to appear. As a result, a capias was issued for Simpson’s arrest on
January 14, 2010, and Simpson was arrested on February 3, 2010. This time Simpson did not
post bond, and he was not released from jail. The record does not indicate the date, but some
time while in jail Simpson was indicted on a separate charge of murder. On June 9, 2010,
Simpson was appointed separate counsel to assist in the defense of the murder charge.
On July 6, 2011, Simpson filed a pro se motion for a speedy trial. On October 12, 2011,
Simpson’s attorney filed a motion to set aside the indictment for failure to afford Simpson his
constitutional right to speedy trial. On November 14, 2011, following a hearing, the magistrate
denied the motion to set aside the indictment, but granted the motion for a speedy trial.
Simpson’s trial was held on November 17, 2011, and the trial court found Simpson guilty of the
offense of felon in possession of a firearm with an enhancement paragraph and assessed
punishment at ten years in prison and a $5,000 fine. Simpson timely filed his notice of appeal.
1 Simpson has two prior convictions: one in Bexar County, Texas, in 2009 and one in the Parish of Orleans, Louisiana, in 2007.
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SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
Pursuant to Brooks v. State, we no longer review claims for factual sufficiency, but
instead, only review claims for legal sufficiency. Brooks v. State, 323 S.W.3d 893, 895 (Tex.
Crim. App. 2010) (plurality opinion). In determining whether the evidence is legally sufficient
to support Simpson’s conviction, we apply the standard articulated in Jackson v. Virginia, 443
U.S. 307 (1979). Id. This standard requires us to determine whether, considering the evidence
in the light most favorable to the verdict, a fact finder could rationally find the elements of the
crime beyond a reasonable doubt. Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.
2011), cert. denied, 132 S. Ct. 1763 (2012); Brooks, 323 S.W.3d at 899. We measure the
sufficiency of the evidence by looking to the substantive elements of the crime as defined by the
hypothetically correct jury charge. Adames, 353 S.W.3d at 860.
Because we view the evidence in the light most favorable to the verdict, we must defer to
the fact finder’s credibility assessments and the weight given to the witnesses’ testimony.
Brooks, 323 S.W.3d at 899. “We will uphold the verdict unless a reasonable [fact finder] must
have had a reasonable doubt as to at least one of the elements of the offense.” Runningwolf v.
State, 360 S.W.3d 490, 494 (Tex. Crim. App. 2012). “Direct and circumstantial evidence are
treated equally: ‘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.’” Clayton
v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9,
16–17 (Tex. Crim. App. 2007)). This is because we must observe the cumulative impact of the
evidence, instead of simply considering each piece of evidence in isolation. Id.; Evans v. State,
202 S.W.3d 158, 166 (Tex. Crim. App. 2006).
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B. Elements of Felon in Possession of a Firearm
In order to be convicted of being a felon in possession of a firearm under section 46.04(a)
of the Texas Penal Code, the State must prove that the individual: (1) was convicted of a felony,
and (2) possessed a firearm “after conviction and before the fifth anniversary of the person’s
release from confinement following conviction of the felony or the person’s release from
supervision under community supervision, parole, or mandatory supervision, whichever date is
later.” TEX. PENAL CODE ANN. § 46.04 (West 2011). The Penal Code defines possession as
actual care, custody, control, or management of the item. Id. § 1.07(39) (West Supp. 2012).
Additionally, for a felon to be held criminally responsible for possession of a firearm, the State
must prove the felon voluntarily possessed the weapon. Id. § 6.01(a) (West 2011); Davis v.
State, 93 S.W.3d 664, 667 (Tex. App.—Texarkana 2002, pet. ref’d). Specifically, “possession is
a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of
his control of the thing for a sufficient time to permit him to terminate his control.” TEX. PENAL
CODE ANN. § 6.01(b).
C. Circumstances Must Link the Defendant to Knowing and Voluntary Possession
When a defendant was not in exclusive possession and control of the place where the
prohibited item was found, the prosecution must provide “evidence of circumstances, in addition
to mere presence, that would adequately justify the conclusion that the defendant knowingly
possessed the [item].” Evans, 202 S.W.3d at 162 n.9 (quoting Womack, J., concurring) (internal
quotation marks omitted). Using either direct or circumstantial evidence, the State must prove
the defendant’s connection to the firearm was not fortuitous. Id. at 165; Poindexter v. State, 153
S.W.3d 402, 405–06 (Tex. Crim. App. 2005).
In determining whether the evidence sufficiently links a defendant to the contraband,
Texas courts have considered the following non-exclusive list of factors: (1) the defendant’s -4- 04-11-00907-CR
presence when the search was conducted; (2) whether the contraband was in plain view; (3)
whether the contraband was in close proximity to, or accessible by, the defendant; (4) whether
the contraband was found in an enclosed place; (5) whether other contraband was found on or
near the defendant when he was arrested; (6) whether the defendant made incriminating
statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant
made furtive gestures; (9) whether the defendant owned or had a right to possess the place where
the contraband was found; (10) whether the conduct of the defendant indicated a consciousness
of guilt; (11) whether the contraband was found on the same side of the car as the defendant was
sitting; (12) whether the accused had a special connection to the contraband; (13) whether the
accused was observed in a suspicious area under suspicious circumstances; and (14) whether the
defendant was the driver of the vehicle in which the contraband was found. Hargrove v. State,
211 S.W.3d 379, 385–86 (Tex. App.—San Antonio 2006, pet. ref’d); see also Deshong v. State,
625 S.W.2d 327, 329 (Tex. Crim. App. 1981); Poindexter v. State, 115 S.W.3d 295, 299 (Tex.
App.—San Antonio 2003), rev’d on other grounds, 153 S.W.3d 402 (Tex. Crim. App. 2005);
Lassaint v. State, 79 S.W.3d 736, 740–41 (Tex. App.—Houston 2002, no pet.). We do not base
our decision on the number of links, but rather on the “logical force of all of the evidence.”
Evans, 202 S.W.3d at 162.
D. Trial Testimony
At Simpson’s trial, the State called three witnesses: Officer Jason Lemcke, Officer Jesus
Sotelo, and Roxanne Rosas, a fingerprint examiner for the Bexar County Sheriff’s Office.
Officer Lemcke was the first witness to testify. On direct examination, Lemcke testified that he
and Officer Sotelo observed Simpson, who was driving, and another individual 2 in a Chevy
2 Simpson’s passenger fled the scene and was never apprehended. Simpson refused to identify the passenger to police.
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Malibu acting suspiciously. Lemcke recalled noticing that the demeanor of the two men inside
the vehicle seemed suspicious, so the officers followed the Malibu into a neighborhood.
According to Lemcke, Simpson committed a traffic violation while making a right turn into the
neighborhood, but the officers did not attempt to stop the Malibu at that time. While the officers
followed the Malibu in the neighborhood, the vehicle slowed down and the officers could see a
lot of movement inside the vehicle. Lemcke also stated the men knew they were being followed
by police, and he could “just tell that they were nervous [from] their demeanors, kind of moving
in and out of the lane. Not crossing the lane, but they seemed [to be] kind of just moving inside
the lane from side to side.” These observations and assumptions were based on Lemcke’s prior
experience.
Shortly after his first traffic violation, Simpson failed to use a turn signal when making a
left turn. As a result, the officers turned on the patrol car’s emergency lights in an attempt to
make a traffic stop. Simpson, however, did not pull over; instead, Lemcke recalled that Simpson
sped up and committed at least one other traffic violation. Next, Lemcke observed Simpson and
his passenger open the driver and passenger doors of the vehicle while it was still moving, as
though the men were preparing to flee. According to Lemcke, Simpson then made a right turn
that caused the Malibu to crash into a parked truck.
As the vehicles collided, Simpson and the passenger exited the vehicle and fled on foot.
Sotelo chased Simpson, and Lemcke pursued the passenger. After realizing he was unlikely to
catch the passenger, Lemcke shifted his attention to helping Sotelo catch and detain Simpson.
Shortly thereafter, Simpson was apprehended and placed in handcuffs.
Lemcke testified that he then took Simpson to the patrol vehicle and searched the Malibu
for other individuals or evidence. As he approached the Malibu, Lemcke saw a revolver on the
dashboard in plain view. No other persons or evidence were found in the vehicle. Lemcke -6- 04-11-00907-CR
recalled that the gun was between the driver and passenger sides of the vehicle, but just slightly
closer to the driver’s side.
On cross-examination, Lemcke added that when he first saw the Malibu, the individuals
had come from an area known to have a high level of gang activity. Lemcke, however, admitted
that the men had not committed any offense at the time the officers began following the Malibu.
When asked about the collision, Lemcke stated the pickup truck was large and both vehicles
sustained quite a bit of damage. Lemcke also clarified that he performed a frisk on Simpson and
found no weapons.
Simpson’s attorney then questioned Lemcke regarding his personal knowledge of
Simpson’s association with the gun:
McLane: Now, you don’t have any personal knowledge of when that gun was put on the dash, do you?
Lemcke: No.
McLane: You don’t have any personal knowledge of where that gun was put on the dash, do you?
Lemcke: Just from the crash—from the intertia of the revolver, I guess during the crash that propelled itself [onto] the dashboard. That’s the only thing, I guess—I never seen anyone place it there, I didn’t see it in their hand. It’s just when we came back to actually look at the vehicle, that’s when I noticed the revolver there.
McLane: And so you don’t have any personal knowledge who put the gun on the dashboard, either, do you?
Defense counsel then verified that there were two occupants of the vehicle and that one of them
got away. Lemcke also stated the police had an opportunity to test the weapon for fingerprints,
but they did not. Lemcke repeatedly acknowledged that he had no personal knowledge that
Simpson put the gun on the dashboard and no personal knowledge that Simpson ever knowingly
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obtained or received the firearm. Additionally, the following exchange occurred regarding
Lemcke’s personal knowledge of where the gun was located in the vehicle prior to the crash:
McLane: We don’t know, and that’s—that’s the point, right? We don’t know; is that correct?
Lemcke: A lot of things could have happened with the—like I said, with the— with everything jumbling around, we don’t know where the weapon was at during the time of the crash.
The State also called Officer Jesus Sotelo to testify. Sotelo’s testimony mostly repeated
the events as depicted by Lemcke’s testimony. After arresting Simpson, Sotelo recalled that a
frisk was conducted and nothing was found on Simpson. Like Lemcke, Sotelo testified the gun
was found on the dashboard in plain view, just left of center and closer to the driver’s side.
Sotelo then testified that the driver would have been able to see the gun and, if he leaned over,
the driver could reach the gun because “it would be in the immediate area of control.” It was
also reiterated that the passenger did not linger in the car after Simpson jumped out.
Sotelo further acknowledged that he had no personal knowledge that Simpson put the gun
on the dashboard or even saw it on the dashboard. The force of the impact when the vehicle
crashed was discussed relative to how the revolver may have ended up on the dashboard up
against the windshield. As Sotelo testified:
Sotelo: I don’t know where [the revolver] was located prior to, other than there was a—a tissue box in the backseat that ended up in the front, also. So I can only—I can only think that the gun was in an open area, it wasn’t enclosed in a compartment to end up in that location after the crash.
McLane: So there was a tissue box on the dashboard[] as well?
Sotelo: The tissue box was on the—on the console.
McLane: Okay. Now, you said that had come forward from the backseat?
Sotelo: Yes.
McLane: How did you know it was in the backseat? -8- 04-11-00907-CR
Sotelo: Because I remember seeing a tissue box in the back—you know, that area in the back window.
....
McLane: Okay. So things moved around that passenger compartment after the impact, fair to say?
Sotelo: Correct.
Sotelo went on to admit the gun was not fingerprinted, despite being in the State’s control
since the incident, and an absence of Simpson’s fingerprints or the presence of someone else’s
could be exculpatory to Simpson. Sotelo repeatedly admitted he had no idea who put the
revolver on the dashboard or how long the revolver was on the dashboard. He stated that:
Sotelo: The only thing that drew my attention is there’s two occupants, driver and a passenger, both are running. And I assumed if the passenger was the one that had the gun and he left it, there would be no reason for the driver to run[,] other than for a traffic infraction, because he wasn’t wanted and he had no drugs, he had nothing else that we could arrest him for at that time.
McLane: Your assumption is because Mr. Simpson ran, it must be his gun?
Sotelo: That he had knowledge that it was there.
McLane: [H]e never said it was his gun, did he?
Sotelo: No.
McLane: Matter of fact, he told you it was not his gun, didn’t he?
Sotelo: Yes. . . .
Sotelo also testified that the Malibu was registered to Keisha Wilson at 535 South Acne Road,
the same address Simpson provided to police as his address.
The State’s final witness, Roxanne Rosa, testified that Simpson’s fingerprints matched
those found in the booking records for Simpson’s previous conviction of possession of a
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controlled substance in a quantity of less than one gram from January 2009. After Rosa’s
testimony, the State rested.
After the State rested, Simpson moved for a directed verdict, arguing the State had failed
to provide any evidence or any witness with personal knowledge that Simpson had voluntary and
knowing possession of the firearm. The court heard arguments, asked if either side had anything
else, and then found Simpson guilty of being a felon in possession of a firearm.
E. Discussion
Applying the factors listed above leads to the conclusion that the evidence is legally
sufficient. The following factors tend to link Simpson to the firearm: Simpson was present when
the search was conducted; the gun was in plain view; the gun was in close proximity to, or
accessible by, Simpson; the gun was not found in an enclosed place; Simpson attempted to flee;
Simpson made furtive gestures; Simpson had a right to possess the place where the gun was
found; Simpson’s conduct indicated a consciousness of guilt; the gun was found on the same side
of the car as Simpson was sitting; Simpson was observed in an area known for gang activity and
acted suspiciously; and Simpson was driving the vehicle in which the gun was found.
We recognize that Simpson was not alone in the vehicle, and almost all of these factors
would apply with equal force to his passenger. Nonetheless, where two equally plausible
inferences can be made, reviewing courts must defer to the fact finder’s decision. Evans, 202
S.W.3d at 164–65. Moreover, although the officers lacked personal knowledge about Simpson’s
possession of the gun, “circumstantial evidence alone can be sufficient to establish guilt.”
Hooper, 214 S.W.3d 9, 16–17. Accordingly, we conclude the evidence is legally sufficient to
support the trial court’s determination that Simpson possessed the gun.
- 10 - 04-11-00907-CR
RIGHT TO DUE PROCESS AND A FAIR TRIAL
Simpson claims that he was denied due process and a fair trial because the trial court did
not permit him to present any witnesses or evidence after the State rested its case-in-chief.
Following arguments made in response to the defense’s motion for a directed verdict, the trial
court asked, “Anything else from the State or defense?” Simpson’s counsel responded, “Nothing
further, Judge.” The court then found Simpson guilty as charged and stated, “My inclination at
this point is to set it for a separate sentencing hearing so that you all can prepare for that, and in
the meantime we can have a presentence investigation report done. Does that sound prudent to
everyone?” Simpson’s counsel responded, “That’s fine.” Simpson made no objection that he
wished to put on evidence in his defense, and the proceeding ended. Simpson did, however,
timely file a motion for new trial asserting he was denied due process and a fair trial because he
was not allowed to put on evidence in his defense since the trial court proceeded directly to
rendering its verdict after ruling on Simpson’s motion for a directed verdict.
Rule 33.1(a)(1) of the Texas Rules of Appellate Procedure mandates that in order for a
complaint to be preserved for appellate review, the record must reflect a timely request,
objection, or motion to the trial court. TEX. R. APP. P. 33.1(a)(1). This requires the complaining
party to lodge a complaint “as soon as the grounds for it become apparent.” Lackey v. State, 364
S.W.3d 837, 843 (Tex. Crim. App. 2012) (quoting Gillenwaters v. State, 205 S.W.3d 534, 537
(Tex. Crim. App. 2006)) (internal quotation marks omitted). If an objection is not timely made
at trial, the error is waived. Jimenez v. State, 32 S.W.3d 233, 235 (Tex. Crim. App. 2000) (en
banc). Moreover, “[i]t has repeatedly been held that even constitutional guarantees can be
waived by failing to object properly at trial.” Id.
As far as the trial court’s inquiry about whether either side had anything else, it is
possible Simpson’s counsel thought the court was referring to arguments on the motion for a - 11 - 04-11-00907-CR
directed verdict. However, the trial court subsequently ruled on the verdict and discussed the
sentencing hearing. Any possible confusion about whether the court’s inquiry was in relation to
the motion or the parties’ case presentations was clear when the court stated the verdict. At this
point, Simpson knew or should have known that error had occurred. See Lackey, 364 S.W.3d at
843. If Simpson had evidence or witnesses to present in his defense, he should have objected or
otherwise informed the trial court when it was clear the court was ruling. Because he did not do
so, Simpson has not preserved his point of error for appeal.
Simpson argues his complaint was preserved by his timely filed motion for new trial. In
order to preserve error for appellate review, however, a timely objection normally must be made
at trial. Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999) (en banc). The only
similar circumstance when a motion for new trial would suffice to preserve error at trial is when
a defendant is denied an opportunity to present evidence and an opportunity to object to the trial
court’s action. Id. at 178; see Issa v. State, 826 S.W.2d 159, 161 (Tex Crim. App. 1992) (en
banc) (holding that a motion for new trial preserved a point of error when the trial judge
announced the verdict and the sentence in one continuous statement then immediately left the
bench without giving the defendant an opportunity to present sentencing evidence or object to
the error). Here, the trial judge asked if the parties had anything further and asked if the parties
were okay with setting a separate sentencing hearing. There can be no real argument that
Simpson had no opportunity to inform the judge that he still wished to present other evidence.
Further, Simpson has given no indication of what evidence or witnesses he would have
presented. Accordingly, we conclude Simpson has not preserved this argument for appeal.
RIGHT TO A SPEEDY TRIAL
Lastly, Simpson complains he was denied his right to a speedy trial under the Sixth
Amendment of the United States Constitution and Article 1, section 10 of the Texas Constitution. - 12 - 04-11-00907-CR
U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10. Although the right to a speedy trial is an
independent constitutional guarantee under the Texas constitution, we analyze this claim in the
same way as its federal counterpart. Zamorano, 84 S.W.3d at 648.
A. Facts Pertinent to Speedy Trial Claim
Simpson was arrested on April 4, 2009 and released on bond the following day. On
January 11, 2010, Simpson was called to appear before the trial court but did not. As a result,
the trial judge ordered a warrant for Simpson’s arrest, and Simpson was arrested on February 3,
2010. Simpson remained incarnated until his trial on November 17, 2011 (a little over 21
months).
On July 6, 2011, Simpson filed a pro se motion for a speedy trial. On October 12, 2011,
Simpson’s counsel filed a motion to set aside the indictment for failure to afford Simpson his
constitutional right to a speedy trial. On October 25, 2011, the trial judge referred the case to a
criminal law magistrate to rule on various pretrial motions. On November 14, 2011, the criminal
law magistrate held a hearing on these motions and granted Simpson’s motion for a speedy trial,
but denied his request to set aside the indictment. Trial was set for and occurred on November
17, 2011.
B. Barker v. Wingo Factors
When analyzing whether a defendant’s right to a speedy trial has been violated,
reviewing courts must balance four factors: (1) length of the delay; (2) reasons for the delay; (3)
the defendant’s assertion of the right to a speedy trial; and (4) prejudice to the defendant
resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); Cantu v. State, 253
S.W.3d 273, 280 (Tex. Crim. App. 2008). No single factor possesses “talismanic qualities” so
no factor is either necessary or sufficient to establish a violation of the defendant’s right to a
speedy trial. Barker, 407 U.S. at 533; Cantu, 253 S.W.3d at 281. Rather, the factors are related - 13 - 04-11-00907-CR
and must be considered together, along with any other relevant circumstances. Cantu, 253
S.W.3d at 281. This balancing test is not done in a formulaic manner, but instead, is conducted
using common sense and sensitivity to the true degree the right has been infringed upon. Barker,
407 U.S. at 522; Cantu, 253 S.W.3d at 281.
Speedy trial claims are reviewed on a case-by-case basis, considering the conduct of both
the prosecutor and the defendant. Cantu, 253 S.W.3d at 280–81; Zamorano v. State, 84 S.W.3d
643, 648 (Tex. Crim. App. 2002) (en banc). The State bears the burden of justifying the length
of delay as well as the reasons for delay, and the defendant has the burden of showing his
assertion of the right and the prejudice he suffered as a result of the delay. Cantu, 253 S.W.3d at
280. “The defendant’s burden of proof on the latter two factors ‘varies inversely’ with the
State’s degree of culpability for the delay.” Id. “Thus, 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.
C. Standard of Review
In reviewing a trial court’s ruling on a speedy trial claim, we use a bifurcated standard of
review. Cantu, 253 S.W.3d at 282 (citing Zamorano, 84 S.W.3d at 648). We apply the
deferential abuse of discretion standard to a trial court’s determinations on factual issues, but we
conduct a de novo review of its legal conclusions. Id. While review under the Barker factors
involves both factual assessments and legal conclusions, the final balance of these factors is a
purely legal question. Id.
Reviewing courts must view all of the evidence in the light most favorable to the trial
court’s ruling. Id. When reviewing factual issues, we presume the trial court resolved disputed
fact issues in favor of the prevailing party, and we defer to reasonable inferences the record
supports. Cantu, 253 S.W.3d at 282; Zamorano, 84 S.W.3d at 648. “In assessing the evidence at - 14 - 04-11-00907-CR
a speedy-trial hearing, the trial judge may completely disregard a witness’s testimony, based on
credibility and demeanor evaluations, even if that testimony is uncontroverted.” Cantu, 253
S.W.3d at 282. The trial judge is in the best position to make factual and credibility assessments
and, consequently, he can “disbelieve any evidence so long as there is a reasonable and
articulable basis for doing so.” Id.
D. Application of the Barker v. Wingo Factors
1. Length of the Delay
The length of delay is the triggering mechanism for consideration of the other Barker
factors, and to trigger a complete review the delay must be presumptively prejudicial.
Zamorano, 84 S.W.3d at 648–49; Russell v. State, 90 S.W.3d 865, 872 (Tex. App.—San Antonio
2002, pet. ref’d). Although there is no set time for what amounts to a presumptively prejudicial
delay, courts have generally held that a delay of eight months or longer will trigger a speedy trial
analysis. Zamorano, 84 S.W.3d at 657 n.26; Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim.
App. 1992) (en banc); Russell, 90 S.W.3d at 872. Delay will run from the time the defendant is
arrested or charged until the time of trial. United States v. Marion, 404 U.S. 307, 321 (1971);
Cantu, 253 S.W.3d at 287; Zamorano, 84 S.W.3d at 648.
In this case, Simpson was arrested on April 4, 2009 and taken to trial on November 17,
2011. Over 31 months lapsed between Simpson’s arrest and trial. This delay is sufficient to
trigger a full speedy trial analysis. Once an accused has crossed the threshold of showing a
presumptively prejudicial delay, courts must consider the length of delay beyond the triggering
point because “the presumption that pretrial delay has prejudiced the accused intensifies over
time.” Zamorano, 84 S.W.3d at 649 (quoting Doggett v. U.S., 505 U.S. 647, 652 (1992))
(internal quotation marks omitted). Thus, when considering prejudice we must take into account
the effect of the length of delay. - 15 - 04-11-00907-CR
2. Reasons for the Delay
As previously indicated, different weights are assigned to different reasons for delay. An
intentional attempt by the prosecutor to delay trial in order to gain a tactical advantage is
weighed heavily against the State, while more “neutral” reasons, such as docket overcrowding
and negligence, are weighed less heavily against the State. Zamorano, 84 S.W.3d at 649
(quoting Barker, 407 U.S. at 531). Even in the absence of a bad-faith delay, negligence by the
State is not “automatically tolerable simply because the accused cannot demonstrate exactly how
it has prejudiced him.” Zamorano, 84 S.W.3d at 649 (quoting Doggett, 505 U.S. at 656–57)
(internal quotation marks omitted).
As the State points out in its brief, the delay appears to be the result of both parties’
actions. The record reflects that Simpson failed to appear for a trial setting on January 11, 2010,
which resulted in his confinement for the remainder of the time his trial was pending. There is
no evidence whether or not the trial would have been conducted or postponed had Simpson
appeared. However, because Simpson may have been able to have his trial at that early date and
without lengthy incarceration, his failure to appear weighs against him. See State v. Munoz, 991
S.W.2d 818, 822 (Tex. Crim. App. 1999) (en banc) (“[D]elay which is attributable in whole or in
part to the defendant may even constitute waiver of a speedy trial claim.”); Thorne v. State, No.
03-02-00811-CR, 2003 WL 22409450, at *4 (Tex. App.—Austin Oct. 23, 2002, pet. dism’d)
(not designated for publication) (attributing delay to a defendant who did not appear at her
original trial setting). The record also reflects that Simpson was unable to appear at two trial
dates because his counsel attended a funeral on one of the dates and was in another trial on the
other date. These are more neutral reasons that should not weigh heavily, if at all, against
Simpson. See Barker, 407 U.S. at 531. Simpson alleged that he “has requested settings for trial
since November 6, 2009. He’s always announced ready for trial. He’s asserted his right to a - 16 - 04-11-00907-CR
speedy trial at every opportunity.” However, there is no evidence that Simpson requested a trial
setting prior to his speedy trial motion or that he ever appeared and announced ready on any
other dates. Additionally, Simpson claimed he waived his right to a jury trial “in order to try and
expedite this matter and get this matter resolved,” but there is no evidence in the record that he
waived a jury trial for this reason.
After Simpson’s missed appearance, the State’s only reason for the subsequent
twenty-two month delay that is detectable from the record is the State’s desire to negotiate a plea
with Simpson. In State v. Munoz, the Court of Criminal Appeals held that delay caused by
good-faith plea negotiations was “a valid reason for the delay and should not be weighed against
the prosecution.” Munoz, 991 S.W.2d at 824–25. Part of the logic behind that decision was that
the defendant’s willing participation in the negotiations caused the delay to be equally
attributable to the defendant as it was to the State. Id. The State contends it was in good-faith
plea negotiations with Simpson’s appointed counsel for the murder case, and we take the
prosecutor’s statement as evidence of that fact. 3 See State v. Rangel, 980 S.W.2d 840, 845 (Tex.
App.—San Antonio 1998, no pet.) (“[A]n attorney’s uncontested unsworn statement at a speedy
trial hearing [is] evidence of the fact it asserted.”). However, there is no evidence that Simpson
or his counsel for this case knew or agreed to those negotiations or the strategy of disposing of
the murder case and his co-defendant first. Simpson’s counsel claimed Simpson was never
willing to accept a plea and the State was simply delaying this case in hopes of pressuring
Simpson into a plea bargain. We must also consider these assertions. The evidence is
conflicting regarding whether the State was in a good-faith plea negotiation or a bad-faith
3 Simpson was appointed a different attorney to represent him on the murder charge, and the State claimed that attorney agreed to handle this case after his co-defendant in the murder case was charged. The prosecution, however, conceded that Simpson’s counsel in this case may not have been aware of these statements made by the other appointed counsel.
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attempt to delay trial and force a plea, so we defer to the trial court’s implicit finding that the
State was not acting in bad faith. Cantu, 253 S.W.3d at 282. Although most of the reasons for
delay are neutral, this factor weighs against Simpson for his initial failure to appear.
3. Assertion of the Right
A defendant “has no duty to bring himself to trial,” but he is responsible for asserting his
speedy trial right. Cantu, 253 S.W.3d at 283. There is no exact time in the process that a
defendant must assert his right to a speedy trial, but “[a] lengthy delay or a lack of persistence in
asserting the right attenuates a speedy trial claim.” Russell, 90 S.W.3d at 873; see also
Zamorano, 84 S.W.3d at 651. “Whether and how a defendant asserts this right is closely related
to the other three factors because the strength of his efforts will be shaped by them.” Cantu, 253
S.W.3d at 283. Whether or not the defendant asserts his right must be given strong evidentiary
weight in a speedy trial analysis, particularly if multiple requests are made. Cantu, 853 S.W.3d
at 283; Zamorano, 84 S.W.3d at 651.
In this case, Simpson filed a pro se motion for speedy trial with an attached request for a
hearing on the motion. However, because the law does not permit hybrid representation, the trial
court was not obligated to consider this motion since Simpson had already been appointed
counsel. Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007). A little over three
months later, Simpson’s counsel filed a motion to dismiss the indictment for violating Simpson’s
right to a speedy trial. After this motion was filed, the trial court referred the case to a magistrate
to rule on the pretrial motions.
Simpson did not assert his right to a speedy trial through his counsel until twenty-seven
months after his initial arrest and seventeen months after his second arrest. “A lengthy delay in
asserting the right attenuates a speedy-trial claim.” Russell, 90 S.W.3d at 873 (citing Haney v.
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State, 977 S.W.2d 638, 642 (Tex. App.—Fort Worth 1998, no pet.)). Consequently, this factor
weighs against Simpson.
4. Prejudice to the Defendant
“Prejudice, of course, should be evaluated in the light of the interests of defendants which
the speedy trial was designed to protect.” Zamorano, 84 S.W.3d at 652 (quoting Barker, 407
U.S. at 532) (internal quotation marks omitted). The Supreme Court has articulated three
particular interests: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and
concern of the defendant; and (3) limiting the chance that the defense will be hampered. Barker,
407 U.S. at 532; Cantu, 253 S.W.3d at 285. Of these types of prejudice, the third is the most
serious and should be given the most weight; however, a defendant’s claim will not fail simply
because he is unable to demonstrate prejudice to his defense. Zamorano, 84 S.W.3d at 852.
Still, the defendant must show he has suffered some prejudice to succeed on his speedy trial
claim. Russell, 90 S.W.3d at 873.
In his brief, Simpson asserts that he has been prejudiced in four ways as a result of the
delay in this case: (1) his pretrial incarceration was oppressive; (2) he was unable to locate
witnesses who were with him immediately prior to his arrest and whose testimony would be
exculpatory, and he was unable to help prepare his defense; (3) his memory and the memory of
these alleged witnesses has now dimmed; and (4) he suffered substantial anxiety and concern
regarding the pending charges as well as his loss of income. However, at the hearing on the
motion, Simpson did not testify nor was any evidence presented in support of any of these
assertions.
First, although the record is not clear on when Simpson was indicted for murder, it is
undisputed that he was indicted at some point while his trial in this case was pending. The
record reflects that Simpson’s counsel for the murder case was appointed on June 9, 2010 so he - 19 - 04-11-00907-CR
must have been indicted prior to that date. It follows that the majority of the time he was in jail
while these charges were pending, he would have been in jail anyway awaiting trial for the
murder charges. This presents a situation similar to that found in Russell v. State, where this
court concluded that the defendant was not subjected to oppressive pretrial incarceration when he
was already incarcerated on an unrelated matter. Russell, 90 S.W.3d at 873.
Next, “[t]o show prejudice caused by lost testimony, an appellant must show the witness
was unavailable at the time of trial, the testimony that would have been offered was relevant and
material to the defense, and due diligence was used to locate the witness for trial.” Id. (citing
Swisher v. State, 544 S.W.2d 379, 382 (Tex. Crim. App. 1976)). Simpson has shown none of
these things. Instead, Simpson simply makes bare allegations that he lost contact with witnesses
who would have been helpful. Simpson does not state who these witnesses were, what testimony
he expected them to offer, or what efforts he used to try to reach them. Further, Simpson refused
to identify his passenger to the police, and the passenger was the only person who could have
been a witness with him immediately prior to his arrest. Since he failed to identify the
passenger, there is no reason to believe he would have called him to appear in court as a witness.
Additionally, because Simpson did not provide any evidence about what witnesses he may have
called, he has not met his burden of showing that he was prejudiced by the memory loss of these
unknown individuals. These general assertions do not rise to the level necessary to show
prejudice.
Lastly, Simpson argues he suffered anxiety and concern about the pending charges as
well as his loss of income. Simpson never presented the argument regarding his loss of income
to the trial court, and on appeal he presents no evidence that he had a job or lost income.
Additionally, regardless of these charges, Simpson would have been incarcerated while he
awaited trial on the pending murder charge. As far as his anxiety and concern over pending - 20 - 04-11-00907-CR
charges, the Court of Criminal Appeals has held that “general anxiety ‘is at least some evidence
of the type of anxiety that the Supreme Court considers under the prejudice prong of Barker.’”
Cantu, 253 S.W.3d at 285–86. However, the court also stated that “evidence 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.” Id. Because Simpson presents only a general complaint of anxiety
without testifying or providing any evidence supporting his claim, we conclude his assertion fails
to satisfy the prejudice prong of Barker.
E. Balancing the Factors
The length of delay weighs in Simpson’s favor, even if the court considers only the
length of delay after Simpson’s missed appearance. The second factor, the reason for delay,
weighs slightly against Simpson. This is because the first nine months of the delay are likely
waived by Simpson’s missed appearance, and at least some reasonable length of time to schedule
a new trial after the missed appearance should be attributed to Simpson. The remainder of the
delay before his trial can be attributed to both the State and Simpson. Simpson, through counsel,
asserted his right to a speedy trial very late in the process. Due to the delay in asserting his right
and the short time between his assertion and his trial, this factor weighs against Simpson.
Finally, in relation to the fourth factor, Simpson has not shown sufficient prejudice as a result of
the delay, so this factor also weighs against Simpson. After balancing the factors, we hold that
Simpson has not sufficiently shown a violation of his right to speedy trial that would to entitle
him to have the indictment set aside.
CONCLUSION
We hold the evidence is sufficient to establish that Simpson was in possession of a
firearm. Simpson has failed to preserve his alleged error regarding a denial of due process. - 21 - 04-11-00907-CR
Finally, we hold that Simpson has not established a speedy trial violation. Based on these
holdings, we affirm the judgment of the trial court.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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