Robert Willard Lenox was convicted of possession of a controlled substance and aggravated assault with a deadly weapon, and received concurrent sentences of ten and twenty-five years in prison, respectively. In four issues, he argues his trial attorneys were ineffective because they failed to (1) challenge the indictment based on limitations and a violation of the constitutional prohibition against ex post facto laws, (2) file a motion for speedy trial, (3) preserve a challenge to the factual sufficiency of the evidence by moving for a directed verdict, and (4) that the trial court erred by not granting a new trial and dismissing the indictment in the aggravated assault with a deadly weapon case. We affirm.

Trial court cause number 51556. Appeal number 05-10-00618-CR.

Trial court cause number 57382. Appeal number 05-10-00619-CR.

Background and Procedural History

In September 2003, appellant was arrested in Grayson County for intoxication assault, delivery of a controlled substance, and possession of drug paraphernalia. After he was released on bond, appellant was arrested in Forth Worth on December 4, 2003, for possession of methamphetamine. He pleaded guilty to the Tarrant County offense and was sentenced to thirty days in the Tarrant County Jail. According to the record, appellant was already on parole for possession of a controlled substance at the time of these arrests. Before he was released from the Tarrant County Jail, a hold was placed on appellant in December 2003 based on a pre-revocation warrant. The hearing report from the Board of Pardons and Paroles, which is included in the record, includes the following grounds for revocation of appellant's parole:

* Intoxication assault with a motor vehicle

* Delivery of a controlled substance

* Possession of drug paraphernalia

* Possession of a controlled substance, methamphetamine

The parole revocation hearing was held on February 11, 2004, after which appellant's parole was revoked and he was sent to the penitentiary. On May 26, 2004, a Grayson County grand jury indicted appellant, in cause number 51557, for intoxication assault. The indictment reads in part:

[O]n or about the 6th day of September, 2003 . . . ROBERT LENOX . . . did then and there operate a motor vehicle in a public place while intoxicated, by not having the normal use of mental or physical faculties by reason of the introduction of a controlled substance, a drug, or a dangerous drug into the body, and did by reason of such intoxication cause serious bodily injury to another, namely, Mark Pels, by accident and mistake, to-wit: by driving an automobile into an oncoming lane of traffic and causing his vehicle to collide with a vehicle occupied by Mark Pels.

On the same day that the intoxication assault indictment was filed, appellant was indicted in cause number 51556, appeal number 05-10-00618-CR, for possessing less than one gram of methamphetamine. The indictment alleges that

. . . on or about the 6th day of September, 2003, . . . in the County of Grayson and State of Texas, ROBERT LENOX, . . . did then and there intentionally and knowingly possess a controlled substance, namely, methamphetamine, in an amount of less than one gram. . . .

Appellant was bench-warranted from TDCJ-ID (Texas Department of Criminal Justice — Institutional Division) to Grayson County on December 1, 2004. On December 9, 2004, Joey Fritts was appointed to represent appellant. At some point thereafter, appellant was returned to prison. On February 21, 2006, Fritts wrote to appellant in the Wynne Unit of the prison at Huntsville. Fritts's letter began by noting it was written in response to a previous letter from appellant. After advising appellant that the case had been twice set for trial but not called, Fritts pointed out that, during the time the case was pending, he "had been forced to deal with three different prosecutors" and that the prosecutor then assigned to the case, like her predecessor, had rejected appellant's offer to plead guilty in exchange for a three year sentence. Fritts explained that the prosecutor had decided to "stay with the original offer, an offer you have already refused." The letter then reads in part as follows:

As to my removal from the case, if you have found the money to hire an attorney to represent you, then you may have any lawyer you wish. If you remain indigent, the Judge, Judge Nall in this case, will have to approve any withdrawal. While I think it is highly unlikely Judge Nall will grant such a request, I will file the motion as you have requested. In the meantime, I must expect that I will remain on your case unless you have a private attorney. If you have such a private attorney, I request that you contact me so that I might inform the court. Your private attorney must file a notice of appearance as well.

Since plea negotiations with the State have completely broken down, I expect that we will proceed to trial. Further, I am filing, on your behalf, a motion for speedy trial. While the speedy trial act in Texas has been ruled unconstitutional, the speedy trial guarantee of the United States Constitution remains available. Of course, one of the remedies for a defendant who complains of the lack of a speedy trial is, in fact, a trial. Hence, I hope that we will be pushed forward on the docket. I cannot guarantee you will be granted any kind of a trial on these cases despite the filing of a motion. The State with the Court's approval may dismiss the charges. The Judge may dismiss the case although I do not expect such a ruling. The action of the State cannot be predicted with any certainty; however, it is my belief that the State will try you especially since there is a victim in this case.

(emphasis in original). No speedy trial motion was filed. Fritts moved to withdraw as counsel on March 8, 2006. The court granted this motion on March 20, 2006. Attorney Pamela McGraw was appointed to represent appellant on December 12, 2007. On June 26, 2008, appellant was indicted by a Grayson County grand jury in cause 57382, appeal number 05-10-00619-CR, for aggravated assault with a deadly weapon. The indictment reads in part:

[O]n or about the 6th day of September, 2003 . . . Robert Lenox . . . did then and there intentionally, knowingly, or recklessly cause bodily injury to Mark Pels by striking Mark Pels' motor vehicle with the defendant's motor vehicle, and the defendant did then and there use or exhibit a deadly weapon, to-wit: motor vehicle, that in the manner of its use or intended use is capable of causing death or serious bodily injury, during the commission of said assault.

The indictment also contains the following tolling paragraph:

And it is further presented in and to said Court that the Defendant was indicted on the 24th day of May, 2004, in cause number 51557 before the 59th Judicial District Court of Grayson County, Texas, for the offense of Intoxicated Assault occurring on or about the 6th day of September, 2003, A.D. and pursuant to Tex. Code Crim. Proc. Sec. 12.05, arises out of the same act, same transaction, and involves the same conduct as the aforementioned allegations for Aggravated Assault with a Deadly Weapon.

The indictment in cause 51557 for intoxication assault was later dismissed. On December 12, 2008, appellant wrote to McGraw asking her to send him a copy of the indictment in cause 57382, and to tell him what month the indictment had been issued. He also indicated that the statute of limitations "seems to have been exceeded by a couple of years." McGraw did not move to quash the indictment or challenge the tolling paragraph. The two remaining cases, 51556 and 57382, were consolidated for trial. Trial commenced on March 1, 2010. The jury returned guilty verdicts on both indictments. At the March 4, 2010 punishment hearing, held before the court, the State introduced evidence of appellant's previous felony convictions, which were used for enhancement purposes. The defense did not object to the enhancement allegations and did not present evidence. The court sentenced appellant to ten years in cause 51556 and twenty-five years in cause 57382, with both sentences to run concurrently. The judgments credit appellant for 208 days of pretrial confinement. A "Credit for Time Served" document prepared by the Grayson County Sheriff's Office provides the following calculation of appellant's pretrial jail credit: Date of Arrest Date of Bond/Release From Custody Days in Custody Total208 9/6/03 9/7/03-Bonded 2 11/10/BW 11/30/04-Transfer from TDC 21 12/1/04 6/2/05-Rel to TDC 184 3/3/10 3/3/10-Still in custody 1 3/4/10 Pled On March 10, 2010, McGraw filed a motion for new trial and moved to withdraw as counsel. Appellant's present counsel was appointed on March 31, 2010. A supplemental motion for new trial alleging ineffective assistance of counsel was filed on April 1, 2010. The supplemental motion for new trial alleged ineffective assistance based on counsel's failure to challenge the indictment in the aggravated assault case, and that counsel was ineffective for not filing a motion for speedy trial. At the hearing on the motion for new trial, McGraw testified that she knew there was a potential limitations issue in the case because of the State's use of the article 12.05 tolling provision, and because she received a letter from appellant expressing concern about the limitations issue. She researched the limitations issue by reviewing the tolling statute and accompanying annotations in an O'Connor's annotated treatise. McGraw explained that she did not move to quash the indictment or request an instructed verdict based on a possible limitations bar because she believed the allegations in the intoxication assault and aggravated assault with a deadly weapon indictments were "exactly the same," and the new indictment did not broaden the previous indictment in any way. Asked why she did not request a speedy trial or move to dismiss on speedy trial grounds, McGraw said "part of the problem with asking for a speedy trial is that you may get it." She also testified appellant never asked her to file a speedy trial motion. McGraw further testified she had received discovery and was always prepared to go to trial, appellant knew plea negotiations were ongoing prior to trial, and the State had made a plea offer to appellant in the intoxication assault case prior to its dismissal, but appellant "was never interested in settling this case." McGraw noted the State's plea offer was for either eight or ten years in prison, and the plea offer would have "included credit for all of the time that [appellant] had served in the penitentiary after his parole" for another offense, "because [appellant's] parole was revoked on this issue prior to trial, which is fairly odd." Fritts, appellant's first attorney, testified appellant asked him to file a motion for speedy trial. In response to appellant's request, Fritts wrote a letter to appellant and told him he would file such a motion, but no speedy trial motion was filed. Fritts also testified that shortly before he withdrew from representing appellant, appellant wrote him another letter and "asked me to withdraw and told me he reported me to the State Bar." Fritts stated that he intended to file a speedy trial motion and understood that appellant "wanted a motion for speedy trial." But Fritts pointed out that, "like Ms. McGraw brought out, the remedy for" a speedy trial complaint "would be a trial." He also pointed out that there had been "a lot of different plea negotiations with the prosecutors, and they had changed prosecutors." Fritts then testified:

I believe that I thought, after I wrote that letter, and I should have written him another letter and explained this to him, that if I filed a motion for speedy trial, and I think that would have potentially bound the other lawyer, that he might would have gotten — but I can't say that is absolutely why I did it. I just — as I thought about this case, since [appellant's counsel] contacted me, I think that would have been a reasonable thought on my behalf. I don't tell clients that I'll do something and don't do it, as a matter of vengeance or anything of that nature. If I didn't file it, it was an oversight. Frankly, I think I would have thought I would have filed it if, you know, I hadn't had some reason to think differently.

Fritts added that appellant had made it clear he "did not want me to represent him." Toward the end of his testimony, Fritts returned to his earlier suggestion that, in electing not to file a speedy trial motion, he was trying to avoid binding the hands of the successor attorney:

What I can't understand myself, after reviewing the file, is why [a speedy trial motion] wasn't filed. Because I don't tell my clients I won't do something or will do something and not do it. And I was pretty surprised when I reviewed the file and did not find a copy of it, particularly because I had gone into the reasons for it. That's why I say, as far as why I didn't do it after I had indicated to him that I would, I possibly could have had second thoughts based on the fact, if another attorney was appointed based on his request for me to withdraw, that attorney might not want that motion filed or might want to talk to him before they did. But, again, that's in hindsight after having reviewed the file.

Appellant testified that he was concerned about the issue of limitations as early as 2008, when he wrote the letter to McGraw noting that the statute of limitations "seems to have been "exceeded by a couple of years." Appellant acknowledged receipt of Fritts's February 2006 letter informing him that he would be filing a motion for speedy trial. Appellant recalled that he had asked Fritts to file a motion for speedy trial and he "assumed" such a motion "would be filed when [Fritts] wrote" the 2006 letter. The record also includes the following exchange:

Q. [PROSECUTOR]. You heard Ms. McGraw testify earlier that she never heard you mention speedy trial; is that correct?

A. [APPELLANT]. Possibly, yes.

Q. So, you're saying she lied about that?

A. I didn't say that at all. I'm just saying that I asked her to file many motions on different things and she never would do it.

Q. I'm not asking you about many motions, sir. Did you ask her to file a motion for speedy trial?

A. I can't remember speedy trial, or different motions to suppress, or what, but she never would file any motions.

Q. So, then, if she says you never asked her to file a motion for speedy trial, you wouldn't disagree with that?

A. Disagree with it? I can't pinpoint that I actually asked her, no, I can't.

Q. You don't have any documents or anything showing that you asked her anything.

A. Just verbally.

Q. But even now you say you don't remember if you actually asked her specifically to file a motion for speedy trial.

A. I just asked her many times how long can they keep continuing this, continuing this, when are we going to trial, why can't I go to trial. I came back on bench warrant trying to go to trial. Mr. Fritts was going to file a motion, he never did. I asked Pam how long can they keep continuances.

Q. You never asked her to file a motion for speedy trial.

A. Like I said, I asked her to file a bunch of motions, whether or not specifically a speedy trial, I don't know. Motions to suppress — I'm sure along in there somewhere I asked her about speedy trials.

Q. But you just testified just now you didn't remember. So, did you not remember, or now you are saying you are sure? Which is it?

A. That I specifically asked her for a speedy trial?

Q. That's correct.

A. I'll say no.

Q. By the time that Ms. McGraw became your attorney, you were very familiar with speedy trial — with the term speedy trial; isn't that correct?

A. Was I familiar?

Q. You were familiar with your rights as far as speedy trial is concerned.

A. Yes, ma'am.

Q. You had had a lengthy discussion with Mr. Fritts about what speedy trial rights you had.

A. Yes, ma'am.

Q. Okay. But you never brought that issue up.

A. With who? Ms. McGraw?

Q. That's correct.

A. Yes, I did. I kept asking her how long can they keep postponing me, setting me, setting me off, setting me off.

Q. And so —

A. I asked her to file me a motion. She said it wouldn't do any good. The Judge will deny it. That's the way they do things in Grayson County — six years, six months.

Regarding the plea negotiations with the State, appellant testified:

Now, [the prosecutor] said she was going to dismiss the intoxicated assault charge, but I would have to plead out to another charge of ten years. And I said, ["]What's the charge,["] and she said, ["]I don't know yet.["] She said, ["]If you don't, I'm going to reindict you for aggravated assault with a deadly weapon and offer you 20 years one time and one time only.["] That was my only plea bargain offer from her.

Appellant said he rejected this plea offer because he thought the prosecutor "was bluffing," and limitations would bar an indictment for aggravated assault. The prosecutor who brought the aggravated assault with a deadly weapon indictment, Bobbie Peterson Cate, also testified at the motion for new trial hearing. When asked about her decision to dismiss the intoxication assault case, she stated: I previously had plea negotiations with Mr. Lenox and his attorney. I had offered them what I believed was, based upon his history, a sweetheart deal. Basically, he'd have credit for time served. I told them that I didn't indict the case, I thought it was indicted incorrectly. I don't know if incorrectly is the right word. It was much more difficult to prove the way it was indicted as intoxication assault. I would have indicted it as an aggravated assault.

I met with them before it was set for trial and informed him that that was what I would do, is if they wanted to accept this, I was willing to go forward as it was, give them that plea. They refused. I told him if he refused that I was going to dismiss, reindict it as an aggravated assault, because I believed it was a much easier case to prove and take to trial, and that's what I did.

In addition, Cate testified that, when she prepared the aggravated assault with a deadly weapon indictment, she did not believe there was a limitations problem because "the statute of limitations had been tolled." She agreed aggravated assault with a deadly weapon "may have the opportunity to be a broader charge" than intoxication assault, but "if they have the same elements and I'm not going beyond those elements, then the statute [of limitations] is tolled." Appellant's motion for new trial was overruled by operation of law, and he timely filed these appeals.

**Discussion*Limitations***

In his first three issues, appellant argues his trial attorneys were ineffective because they failed to (1) challenge the indictment as beyond the limitations period and a violation of the constitutional prohibition against ex post facto laws; (2) file a motion for speedy trial; and (3) preserve a challenge to the factual sufficiency of the evidence by moving for a directed verdict. We begin with appellant's limitations argument. The underlying incident occurred on September 6, 2003. On May 26, 2004, while appellant was in prison for another offense, he was indicted for third-degree felony intoxication assault. On June 26, 2008, while appellant was still in prison, he was indicted for aggravated assault with a deadly weapon based on the same September 6 incident. He was tried for the aggravated assault offense in 2010. The intoxication assault case was dismissed. The limitations period for aggravated assault with a deadly weapon is three years. Tex. Code. Crim. Proc. Ann. art. 12.01(4)(A) (Vernon Supp. 2011). This limitations period is tolled for the time that an indictment is pending. See Tex. Code Crim. Proc. Ann. art. 12.05(b) (Vernon 2005). Article 12.05(b) provides that "[t]he time during the pendency of an indictment, information or complaint shall not be computed in the period of limitation. . Id. The court of criminal appeals has noted that, taken at face value, such language would allow any indictment to toll any other indictment, even if there was no relationship between the alleged offenses. See Hernandez v. State, 127 S.W.3d 768, 771.72 (Tex. Crim. App. 2004). In Hernandez, the court concluded the legislature could not have intended for any indictment to toll the statute for any other indictment. Thus, the court determined the statute was ambiguous and concluded a prior indictment tolled the statute of limitations pursuant to article 12.05(b) when the subsequent indictment alleged the same conduct, act, or transaction as was alleged in the prior indictment. Id. at 774. In reaching this conclusion, the court specifically considered and rejected a construction of the statute that would have allowed tolling only when the two indictments alleged the same offense. Id. at 772. In the present case, the tolling paragraph in the aggravated assault with a deadly weapon indictment was based on the court of criminal appeals' interpretation of article 12.05 in Hernandez. Appellant contends his trial counsel was ineffective for failing to raise the issue of limitations by moving to quash the aggravated assault with a deadly weapon indictment, challenging it at trial, or seeking a directed verdict at the conclusion of the State's case. This limitations argument is based on two assertions. First, appellant argues that the application of the Hernandez decision — handed down on February 4, 2004 — to this case "amounts to a violation of the ex post facto provision of the Texas and United States Constitution." He also argues that "the State's understanding of Hernandez and their application of it to the current case is just plain wrong." A claim of ineffectiveness is reviewed under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must establish that (1) counsel's performance was deficient (i.e., fell below an objective standard of reasonableness), and (2) there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different, a reasonable probability being a probability sufficient to undermine confidence in the outcome. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). In other words, a defendant must demonstrate by a preponderance of the evidence that the deficient performance prejudiced his defense. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 814. Review of counsel's conduct is highly deferential, and there is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. Id. To defeat the presumption, ineffective assistance must be firmly founded in the record. Id. The appellant must prove both prongs of the Strickland test by a preponderance of the evidence. Tong v. State, 25 S.W.3d 707, 721 (Tex. Crim. App. 2000). Beginning with appellant's argument regarding the constitutional prohibition against ex post facto laws, we note that "[t]he prohibition against ex post facto laws is a prohibition against legislative and not judicial action." Ex parte Bonham, 707 S.W.2d 107, 108 n. 1 (Tex. Crim. App. 1986). However, "a judicial decision having an unjust retroactive application is barred by the due process provisions of the Fifth and Fourteenth Amendments to the United States Constitution rather than Article I, Section 10's ex post facto provision." Id. An unforeseeable judicial construction of a criminal statute, applied retroactively, can function like an ex post facto law and violate the Due Process Clause. See Bouie v. City of Columbia, 378 U.S. 347, 353 (1964). "If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect." Id. at 354 (quotation omitted). Courts may limit the retroactive effect of a decision if they choose to do so, but judicial decisions normally are retroactive. See Proctor v. State, 967 S.W.2d 840, 845 n. 5 (Tex. Crim. App. 1998); Callison v. State, 218 S.W.3d 822, 825 (Tex. App.-Beaumont 2007, no pet.). "A state judicial decision may not operate retroactively if it has the effect of depriving persons of fair warning of what conduct will give rise to which criminal penalties." Proctor, 967 S.W.2d at 845. But a decision may apply retroactively if it does not alter an offense's definition, range of punishment, or substantive defenses. Id. The court in Hernandez did not choose to limit its retroactive application, and we likewise decline to do so here. Furthermore, the tolling paragraph in the aggravated assault with a deadly weapon indictment did not deprive appellant of fair warning of what conduct would give rise to criminal penalties. It did not retroactively alter the definition of aggravated assault with a deadly weapon as it existed in 2003, the range of punishment for that offense, or the substantive defenses that were available. See id. Appellant has not shown that trial counsel was ineffective for failing to challenge the tolling paragraph on the basis of an alleged ex post facto violation. Turning to appellant's second argument, he relies on a statement in the Hernandez opinion where the court noted that "[a] subsequent indictment is barred by the statute of limitations if it broadens or substantially amends the charges in the original indictment. . Hernandez, 127 S.W.3d at 773. Citing this statement, appellant alleges the State dismissed a third degree felony in order to bring a second degree felony and a deadly weapon allegation. Appellant also argues that the second indictment is broader than the first because he would be subject to greater liability under the second indictment. We believe appellant is misinterpreting Hernandez. As another appellate court has observed, the statement in question is located at the beginning of several paragraphs in Hernandez where the court cited a number of federal decisions in an effort to construe article 12.05. See Ex parte Brooks, No. 12.06.00378.CR, 2011 WL 165446, at *5 (Tex. App.-Tyler Jan. 19, 2011, pet. ref'd) (mem. op., not designated for publication). It is not clear whether the court of criminal appeals was adopting the statement cited by appellant or merely citing analogous federal authority in support of its interpretation of article 12.05. See id. The language is not found in the federal equivalent of article 12.05, 18 United States Code Section 3288, which is cited in Hernandez, but it does appear in several of the federal decisions that were cited by the court of criminal appeals. See Brooks, 2011 WL 165446, at *5 (citing United States v. Davis, 953 F.2d 1482, 1491 (10th Cir. 1992); United States v. Gengo, 808 F.2d 1, 3 (2d Cir. 1986); United States v. Grady, 544 F.2d 598, 602 (2d Cir. 1976)). The Hernandez court's specific holding is that article 12.05 authorizes an indictment to toll the statute of limitations for a subsequent indictment where both indictments alleged the same conduct, act, or transaction. Hernandez, 127 S.W.3d at 774; see also Ex parte Smith, 178 S.W.3d 797, 805 (Tex. Crim. App. 2005). This effectuates the purpose of a statute of limitations, which is .to protect the accused from having to defend against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. . Hernandez, 127 S.W.3d at 772 (citing Toussie v. United States, 397 U.S. 112, 114.15 (1970)). As the court observed, .[i]f the defendant has adequate notice of a charge, he can preserve those facts that are essential to his defense. . Id. A federal appellate court likewise emphasized that notice is the "touchstone" of its analysis, that is, "whether the original indictment fairly alerted the defendant to the subsequent charges against him and the time period at issue. . United States v. Salmonese, 352 F.3d 608, 622 (2d Cir. 2003). In this case, the two indictments shared the same factual basis. Both indictments alleged an injury to the complainant, Mark Pels, by striking him with a vehicle. The State did not charge appellant under the same penal statute in the indictments, but both indictments alleged the same conduct, act, or transaction, and involved the same complainant. The indictments did not allege two separate incidents, acts, transactions, or complainants. Appellant thus had adequate notice to defend himself against the charges and preserve the facts that were essential to his defense. See Hernandez, 127 S.W.3d at 772. As a result, appellant has not shown that counsel was ineffective for failing to challenge the tolling paragraph. We overrule appellant's first issue.

Speedy Trial

In his second issue, appellant argues his trial attorneys were ineffective because they failed to file a motion asserting appellant's constitutional right to a speedy trial. The mere failure of counsel to file appropriate pretrial motions is not categorically deemed ineffective assistance. See Jaile v. State, 836 S.W.2d 680, 687 (Tex. App.-El Paso 1992, no pet.); Martinez v. State, 824 S.W.2d 688, 690 (Tex. App.-El Paso 1991, pet. ref'd); Pady v. State, No. 13-07-00075-CR, 2008 WL 5662120, at *2 (Tex. App.-Corpus Christi Nov. 13, 2008, pet. ref'd) (mem op., not designated for publication); Whitfield v. State, No. 07-06-0308-CR, 2007 WL 1839669, at *3 (Tex. App.-Amarillo June 27, 2007, no pet.) (mem. op., not designated for publication). This rule applies to motions to dismiss based on allegations of a lack of a speedy trial. See Jaile, 836 S.W.2d at 687; Martinez, 824 S.W.2d at 690-91; Pady, 2008 WL 5662120, at *2; Whitfield, 2007 WL 1839669, at *3. Unless an appellant shows a pretrial motion had merit .and that a ruling on the motion would have changed the outcome of the case, counsel will not be ineffective for failing to assert the motion. . Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (citing Roberson v. State, 852 S.W.2d 508, 510-12 (Tex. Crim. App. 1993)). In determining whether a criminal defendant has been denied his constitutional right to a speedy trial, courts use a balancing test. We consider four factors: (1) the length of the delay; (2) the State's reasons for the delay; (3) the defendant's effort to obtain a speedy trial; and (4) the prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530 (1972). No single factor is necessary or sufficient to establish a violation of the defendant's right to a speedy trial. Id. at 533; Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). The length of the delay is a .triggering mechanism. for a speedy trial analysis; absent a .presumptively prejudicial. delay, we need not consider the other Barker factors. State v. Munoz, 991 S.W.2d 818, 820 (Tex. Crim. App. 1999). Delays approaching one year are generally considered presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992); Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). Assuming without deciding that counsel erred by failing to file a motion for speedy trial, appellant's ineffective assistance claim nonetheless fails because he has not shown there is a reasonable probability the result of the proceeding would have been different. See Rylander, 101 S.W.3d at 110. Appellant argues that the delay in bringing causes 51556 and 57382 to trial harmed him in two ways. "First, he did not receive credit for his confinement time because his attorneys did not notify his bondsman to go off his bond, thus, he served five years for which he did not receive credit." "Second, because of the delay, he was indicted outside of the limitations on a more serious charge of aggravated assault with a deadly weapon." We have already addressed this second contention, noting that appellant has not shown counsel erred by failing to challenge the tolling language in the aggravated assault indictment based on either a lack of notice or a violation of the constitutional prohibition against ex post facto laws. As for appellant's other argument, he confuses prejudice under Barker with the harm that must be shown under Strickland. Even if appellant could show he was harmed by the pretrial incarceration, he does not prove that a ruling on a motion for speedy trial would have changed the outcome of the cases. He does not, for example, allege that his defense at trial was impaired or that witnesses and evidence were lost because of the delay in bringing the above cases to trial. Instead, appellant argues he was denied five years of pretrial credit because his attorneys did not "notify his bondsman to go off his bond." This statement, however, is not supported by any citations to the record or relevant legal authority, and appellant fails to explain how or why he was entitled to five years of pretrial credit. See Wade v. Comm'n for Lawyer Discipline, 961 S.W.2d 366, 373 (Tex. App.-Houston [1st Dist.] 1997, no writ) (appellant must refer court to those portions of record that support his argument); see also Tex. R. App. P. 38.1(i). Our review of the record does reflect that appellant was "reparoled" after he returned to the penitentiary following the parole revocation. But the record does not establish when appellant was "reparoled" from TDCJ-ID or the length of time he was incarcerated after the parole revocation. A trial court must award credit for time served for the same offense but not time incarcerated pretrial for independent offenses. See Ex parte Crossley, 586 S.W.2d 545, 546 (Tex. Crim. App. 1979); Martinez v. State, No. 13-04-00085, 2005 WL 1805500, at *3 (Tex. App.-Corpus Christi 2005, July 28, 2005, no pet.); see also Tex. Code Crim. Proc. Ann. art. 42.03, § 2(a)(1) (West Supp. 2011). Appellant was required to prove both prongs of Strickland by a preponderance of the evidence. See Tong, 25 S.W.3d at 721. He did not do so. We therefore overrule appellant's second issue.

Factual Sufficiency

In his third issue, appellant argues his second trial counsel was ineffective because she failed to preserve a challenge to the factual sufficiency of the evidence by moving for a directed verdict at the close of the State's evidence and at the end of trial. The court of criminal appeals' decision in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.), overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) and concluded the Jackson v. Virginia legal sufficiency standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95. Furthermore, even prior to Brooks, it is a well-settled proposition of law that sufficiency of the evidence can be raised for the first time on appeal. See Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001) ("A claim regarding sufficiency of the evidence need not be preserved for review at the trial level and is not waived by the failure to do so."). Counsel is not deficient for failing take actions that have no legal basis. See Saldana v. State, 287 S.W.3d 43, 63-64 (Tex. App.-Corpus Christi 2008, pet. ref'd); see also Jagaroo v. State, 180 S.W.3d 793, 800 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) ("It is not ineffective assistance for counsel to forego making frivolous arguments and objections."). We overrule appellant's third issue.

Interest of Justice

In his fourth issue, appellant argues the trial court erred by not granting a new trial "in the interest of justice." Appellant alleges he "demonstrated that the indictment on the aggravated assault was brought beyond limitations and [appellant's] attorney failed to file a motion for speedy trial after telling him they would." As noted earlier, however, appellant has not shown that the aggravated assault with a deadly weapon indictment was barred by limitations or that there is a reasonable probability the result of the proceeding would have been different had defense counsel filed a motion for speedy trial. We conclude the trial court did not abuse its discretion by failing to grant appellant a new trial "in the interest of justice." See State v. Herndon, 215 S.W.3d 901, 906-07 (Tex. Crim. App. 2007). We overrule appellant's fourth issue. We affirm the trial court's judgments.

Lenox v. State

Summary

Opinion

OPINION

Background and Procedural History

**Discussion*Limitations***

Speedy Trial

Factual Sufficiency

Interest of Justice

Lenox v. State

Lenox v. State

Case Details

Citations

Citing Cases

Lenox v. State

Summary

Opinion

OPINION

Background and Procedural History

DiscussionLimitations

Speedy Trial

Factual Sufficiency

Interest of Justice

Lenox v. State

Lenox v. State

Case Details

CitationsCopy Citation

Citing Cases

**Discussion*Limitations***

Citations