Oliver Alexander Callender, III v. State

• Court: Court of Appeals of Texas
• Decided: December 12, 2013
• Docket: 07-13-00069-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00069-CR

OLIVER ALEXANDER CALLENDER, III, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court Randall County, Texas Trial Court No. 23,267-B, Honorable John B. Board, Presiding

December 12, 2013

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Oliver Alexander Callender, III, appeals his conviction for the unauthorized use of

a motor vehicle. His two issues on appeal concern 1) the purported denial of his right to

a speedy trial, and 2) the constructive denial of his right to counsel. We affirm the

judgment.

Speedy Trial

We overrule appellant's contention regarding the purported denial of his right to a

speedy trial for two reasons. First, it was not preserved. His trial counsel did not broach the issue before the trial court. Henson v. State, 407 S.W.3d 764, 769 (Tex.

Crim. App. 2013) (recognizing that the right to a speedy trial may be waived by the

failure to bring it to the attention of the trial court); Hucks v. State, 348 S.W.3d 359, 363

(Tex. App.—Amarillo 2011, no pet.) (holding the same). And, that appellant personally

may have solicited a speedy trial, after being appointed counsel to represent him, does

not fill the void. Defendants are not entitled to hybrid representation, and the trial court

may disregard any pro se motions presented by a defendant represented by counsel.

Robinson v. State, 240 S.W.3d 919, 922 (Tex. Crim. App. 2007).

Second, even if it was preserved, the record fails to illustrate any violation of the

imperative. Appellant committed the crime involved on February 12, 2012. The

authorities arrested him approximately a month later, that is, during the second week of

March, 2012. An indictment issued against him on June 27, 2012, and he ultimately

was tried on February 2, 2013. So, about eleven months lapsed between his arrest and

trial.

Yet, the February 2013 setting was not the first assigned to the cause. Rather,

the proceeding was originally scheduled for trial in September of 2012 before the 251st

Judicial District Court. The matter was not heard then because the State moved for a

continuance due to the absence of a witness. More importantly, appellant, via his

counsel, joined in the motion. Thereafter, the cause was transferred from the 251st

Judicial District to the 181st Judicial District in December of 2012. And, the latter court

tried the matter on the date mentioned above.

Appellant remained jailed throughout the period between his arrest and trial.

This was because of an outstanding, non-bondable, parole warrant prohibiting his

2 release. And, if the content of his various letters are given any credence, then it

appears that he began demanding a speedy trial soon after his arrest.

Yet, nothing of record identifies the loss of any specific evidence or witnesses

favorable to appellant during the 11-month interim.1 Nor are we cited to any evidence of

record suggesting that the delay hampered appellant's ability to defend himself. And,

while testifying on his own behalf at trial, appellant acknowledged the difficulty his

attorney experienced in subpoenaing various records. So too did he acknowledge that

delay was also attributable, in part, to "some of the things . . . [he] asked . . . [his

attorney] to do to try to work on . . . [his] case[.]"

We concede that one's stay in jail is oppressive and inflicts upon the accused

anxiety and concern. We further assume that appellant, at bar, suffered from such

oppression, anxiety, and concern during his incarceration. But, nothing we found of

record suggests that it was of the type different than that suffered by any other person

awaiting trial in jail. Cantu v. State, 253 S.W.3d 273, 285-86 (Tex. Crim. App. 2008)

(stating 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").2

1 Appellant did opine that the delay caused him to lose evidence. Yet, he never described the tenor of that evidence. Such is important because only then can we gauge whether its absence was prejudicial. Shea v. State, 167 S.W.3d 98, 103 (Tex. App.—Waco 2005, pet. ref’d) (noting that to establish prejudice because of an unavailable witness, a defendant must show that the witness is unavailable, that his testimony might be material and relevant to his case, and that he has exercised due diligence in his attempt to find and produce him for trial). And, as for the one named witness who could not be located, we do not know if his absence was attributable to any delay in trying the cause or to the lack of an adequate address. Nor does appellant allude to the nature of his testimony or suggest how it could have benefitted him. 2 Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)

3 Our analysis of appellant's speedy trial complaint takes into consideration the test

and methodology expressed in Henson v. State and Cantu v. State, which cases are

cited above. And, in applying that methodology, we cannot but find no violation. The

eleven-month period between arrest and trial was quite close to the minimum needed to

trigger a speedy trial analysis, to begin with. Shaw v. State, 117 S.W.3d 883, 889-90

(Tex. Crim. App. 2003) (noting that analysis is normally required when the delay

approaches one year). Of that period, some of the delay was attributable to appellant's

approval of a continuance and need to search for evidence and develop a defense.

Other was legitimately attributable to the State's need to prepare for trial. See id. at

889-90 (noting that the three-month interval between appellant's indictment and first trial

may not be counted against the State, since the State was entitled to a reasonable

period in which to prepare its case). And, most importantly, nothing illustrates a loss of

evidence or witnesses needed to present a defense, much less a causal connection

between the loss and the delay. See Cantu v. State, 253 S.W.3d at 285 (noting that

delay resulting in the impairment of an accused's right to prepare a defense is the most

weighty indicia to consider when assessing prejudice).

It is true that appellant said he wanted a speedy trial; yet, it is equally true that he

is not entitled to a trial at a time of his choosing. In re Carter, 958 S.W.2d 919, 924

(Tex. App.—Amarillo 1997, orig. proceeding). The wheels of justice must be afforded a

reasonable amount of time to turn, and the time taken here did not deny appellant a

speedy trial when all circumstances are considered. See Meyer v. State, 27 S.W.3d

644, 651 (Tex. App.—Waco 2000, pet. ref’d) (wherein a 23-month unexplained delay

4 wherein appellant sat in jail was held not to be a speedy trial violation given the lack of

prejudice).

Constructive Denial of Counsel

Appellant next argues that he was constructively denied counsel because

counsel failed to request a speedy trial. As illustrated above, appellant received a

speedy trial. Thus, we cannot fault his attorney for denying him what he actually

received. The issue is overruled.

Accordingly, the judgment is affirmed.

Brian Quinn Chief Justice

Do not publish.