Opinion
NO. 03-19-00419-CR
07-24-2020
John Charles Wilsford, Appellant v. The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2016-475 , THE HONORABLE DANIEL H. MILLS, JUDGE PRESIDING MEMORANDUM OPINION
John Charles Wilsford was convicted by a jury for the offense of theft, enhanced to a state-jail felony by two or more prior theft convictions, and further enhanced to a third-degree felony by two prior state-jail felony convictions. See Tex. Penal Code § 31.03(a) (defining offense of theft), (e)(4)(D) (providing that offense is state-jail felony if value of property stolen is less than $2,500 and if defendant has previously been convicted of theft two or more times); see also id. § 12.425(a) ("If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies punishable under Section 12.35(a) [non-aggravated offenses], on conviction the defendant shall be punished for a felony of the third degree."). Consistent with the jury's punishment assessment, the district court sentenced Wilsford to ten years' imprisonment. On appeal, Wilsford contends that the district court erred "by failing to conduct a full and meaningful hearing on [his] pro se speedy trial complaint." We will affirm the judgment of conviction.
BACKGROUND
We limit our discussion of the factual background because Wilsford raises no challenge to the sufficiency of the evidence supporting his theft conviction. See Tex. R. App. P. 47.1.
Wilsford was arrested for misdemeanor theft on September 22, 2015, after stealing multiple items from a Kohl's department store. The theft was captured on security surveillance video and witnessed by a loss prevention officer who testified at trial about his observations of Wilsford in the store and on the video at the time of the offense. Police officers were dispatched while Wilsford was still in the store, and they were waiting outside to detain him. The stolen merchandise was recovered from Wilsford after his arrest. He confessed to committing the theft after receiving Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 444, 478-79 (1966); see also Tex. Code Crim. Proc. art. 38.22. Following his arrest, Wilsford was released on bond. A grand jury indicted Wilsford on July 6, 2016, for felony theft, enhanced by prior convictions to a third-degree felony.
Video of the theft was admitted into evidence.
Video from the officer's patrol car was admitted into evidence.
Wilsford told police that he had "been arrested for theft on multiple occasions and that he was glad that he had gotten caught because he believe[d] that he m[ight] be addicted to theft." Against counsel's advice Wilsford testified at trial, confessing again to the theft from Kohl's.
Multiple district-court judges presided over pretrial proceedings in Wilsford's case. During those pretrial proceedings, four different attorneys were appointed to represent Wilsford and were permitted to withdraw from representation. A fifth court-appointed attorney represented Wilsford at trial, and before jury selection, Wilsford allegedly threatened to file a grievance against him. We address the pretrial chronology of this case in detail because of its bearing on the fact-specific speedy trial issue that Wilsford raises here. See Emery v. State, 881 S.W.2d 702, 707 (Tex. Crim. App. 1994) (setting forth detailed procedural history for purpose of resolving speedy trial issue).
Wilsford Absconds
Wilsford failed to appear for his arraignment September 15, 2016. The court forfeited Wilsford's bond and issued a capias for his arrest. Another capias issued for Wilsford on December 12, 2016, as to his new indictment for failure to appear, i.e., "bail jumping." He was later apprehended in California and was returned to Texas by July 3, 2017, as shown by the sheriff's return on the capias showing that it was executed that day. Wilsford testified that he "arrived in Comal on 7-3-17 after spending nine months fighting [his] case in Bakersfield, California" on a separate offense. Multiple Agreed Resets, Motions to Withdraw, and Wilsford's Competency Evaluation
Before Wilsford's trial the parties agreed to resets of multiple scheduled hearings and the trial date. The case was reset after each of Wilsford's four appointed attorneys' motions to withdraw were granted. Additional time was necessary for a proceeding to determine Wilsford's competency to stand trial.
1. First court-appointed attorney
Wilsford's arraignment on his theft and failure-to-appear offenses was scheduled for August 3, 2017, but by agreement in court it was rest until a pretrial hearing on August 17, 2017. At the August 17 pretrial hearing another agreed reset to August 29, 2017, was signed. On August 29, Wilsford's first attorney, Roberto Vargas, filed a motion to withdraw alleging difficulties communicating with Wilsford, who wanted to instruct Vargas "on what to do and how to do it." Wilsford complained that "inadequate counsel" had been "forced upon [him] by magistration." At the conclusion of the August 29 hearing, the district court granted Vargas's motion to withdraw.
2. Second court-appointed attorney
The next day, the court appointed Paul Finley to represent Wilsford and the next hearing was set for September 25, 2017. On that date, an agreed reset was signed scheduling the next hearing for October 26, 2017. Before that hearing, however, Wilsford sent a pro se letter to the district clerk alleging that he was "currently without an attorney" and requesting that the clerk send his complaint letters to several government officials, including the President, the Governor, among others. The district clerk provided a copy to Finley. Finley filed a motion to withdraw on October 6, 2017, stating that he was leaving the full-time practice of law. The district court granted Finley's motion at the hearing October 26.
3. Third court-appointed attorney
The next week, the district court appointed Rick Vestal to represent Wilsford and set a hearing for November 7, 2017. Before that hearing, Wilsford sent a pro se letter to the district clerk requesting that the clerk forward to Vestal his letters directing Vestal to file nine motions and obtain "an un-bias[ed] private investigator." On November 7, Vestal filed a motion to withdraw and discussed difficulties communicating with Wilsford, who "absolutely refused to talk to [him]" on their last visit. Vestal told the district court that "in speaking with his prior counsel, I think the—it's similar treatment." The district court noted that Wilsford was "just putting stuff off" and asked him about the problem communicating with counsel. Wilsford proceeded to "request a different DA" and complain about his unfiled motions and copies of paperwork that he did not have. The district court asked Wilsford if he wanted to represent himself, and Wilsford responded, "I'm thinking about it." The court told Wilsford that each time he got another attorney, it "put [him] back in the process." The court noted the inconsistency of asking for a speedy trial but not cooperating with defense counsel and cautioned that Wilsford was "not going to continue to obstruct this . . . procedure." Wilsford then replied, "I'll represent myself." The court granted Vestal's motion to withdraw and advised Wilsford that they would have to address his self-representation at another hearing.
4. Fourth court-appointed attorney
Wilsford reversed his self-representation decision the next day, completing an application declaring his indigence and seeking representation by a court-appointed attorney. Five days later, the district court appointed a fourth attorney, Wade Arledge, to represent Wilsford and set a pretrial hearing for December 7, 2017. Arledge subsequently filed a motion requesting production of evidence and information. The record reflects that the December pretrial was reset to January 4, 2018.
The notice of pretrial hearing filed December 8, 2017, shows the January 4 reset date, but it is unclear whether this was agreed to by the parties or reset by the court.
On January 4, an agreed reset was signed scheduling a hearing on Wilsford's "plea of guilty" for February 6, 2018. The February 6 plea hearing was reset by agreement to March 12, 2018, and then again to March 28, 2018. Wilsford's open plea agreements to the theft offense and the related failure-to-appear offense were addressed at the March 28 hearing. In response to the district court's questioning, Arledge opined that Wilsford was competent to stand trial, and Wilsford agreed, confirming that he had a rational and factual understanding of the proceedings and noting that he had undergone competency testing in California. The court asked Wilsford whether he had been able to assist in his defense, and Wilsford stated, "I don't know. I've had four lawyers so far, sir, and I've asked them all to file motions for me and they refused to do it[.] . . . [Arledge] won't file the motions either." The district court replied, "There's probably a reason for that. He can't file frivolous motions or he'll lose his license."
This competency testing occurred before Wilsford's extradition to Texas.
The court asked Arledge again whether he believed Wilsford was competent, noting the difficulty in getting "a straight answer from him" and stating, "I'm beginning to see why he's gone through so many lawyers." Arledge stated that he believed Wilsford was competent, had written a letter to Wilsford about the pretrial motions, and was satisfied the State had complied with the discovery requirements of the Michael Morton Act. See Tex. Code Crim. Proc. art. 39.14. Wilsford disputed that, alleging that Arledge "still doesn't have the discovery yet." Arledge asked him, "Well, what did we do two days ago?" Arledge told the court that he was requesting probation because of Wilsford's need for treatment of his non-debilitating drug and mental-health issues but again confirmed that Wilsford knew "what's going on" and was competent.
The court confirmed that Wilsford had signed and initialed the plea paperwork and then suggested that he "step back and go over it with [Arledge]." Arledge stated that he had done so. Wilsford proceeded to make certain remarks to the court, and Arledge asked a bailiff to take Wilsford "to the back." Displeased with that instruction, Wilsford said, "Am I going to the back? . . . You know what, sir, he's fired, too." As Wilsford left, he called the judge a derogatory name. The next day, March 29, 2018, Wilsford wrote a letter to the district clerk stating that he had fired Arledge and that he wanted an attorney appointed from a list of three that he had chosen to represent him. A copy of this letter was sent to Arledge. Another plea hearing was scheduled for April 26, 2018, reset to May 22, 2018, and then rest by agreement to June 6, 2018.
5. Wilsford's competency evaluation
The day before the June 6 plea hearing, Arledge filed a motion suggesting Wilsford's incompetency to stand trial and requested a competency examination. See Tex. Code Crim. Proc. art. 46B.004 (addressing procedure for raising issue of defendant's incompetency to stand trial). On June 25, 2018, Dr. Matthew Fabian conducted a psychological exam and a competency evaluation, and he filed his report on July 2, 2018, opining that Wilsford was competent to stand trial, that he did not appear to have had any "severe mental defect at the time of the alleged offense," and that there was no evidence that he had "any severe mental disease that would impair his ability to know the wrongfulness of his conduct." See id. arts. 46B.021 (authorizing court appointment of expert to examine defendant and report on his competency or incompetency to stand trial), 46B.025 (providing for expert's report to court stating opinion on defendant's competency to stand trial).
After Wilsford was found competent to stand trial, a pretrial hearing was set for July 18, 2018. That day, the case was reset by agreement for a jury trial on September 17, 2018, with announcements on September 11. During announcements, the district court set the order of the cases to be tried, with defendants who had been in custody longest going first, including some who had been in custody for over 1000, 600, and 500 days. The State and defense announced "ready" on Wilsford's case, and the court stated, "We'll mark that as ready." Wilsford's case was sixth in line on the September 17 docket. His case was not reached that day, and a jury trial was set for November 26, 2018, with announcements on November 20.
The State informed the court that at one point the parties "had this case worked out and plea papers were done and we got in front of Judge Robison and [Wilsford] started acting poorly and they got into it." At a later hearing, Arledge informed the court that Wilsford's plea had been withdrawn and that Judge Robison recused himself from the case.
6. Fourth attorney's motion to withdraw and Wilsford's pro se complaints
On November 6, 2018, Arledge filed a motion to withdraw stating that Wilsford had filed grievances against him and that he was unable to communicate with Wilsford effectively. The district court heard Arledge's motion November 20, 2018. Events at this hearing are the basis for Wilsford's appeal.
At the start of the hearing, Arledge explained he had tried to remain on the case but ultimately concluded that he could not. He noted that Wilsford disliked him and wanted him to take certain actions, including telling him "to file motions with President Trump." The district court then addressed Wilsford, noting that he had "been through four attorneys" and that "we're here on a motion to withdraw counsel." Wilsford acknowledged those facts, and although he had not set any motion for hearing, he stated that he wanted to speak on his own behalf.
The court declined to allow Wilsford to discuss his case, explaining that because Arledge requested to withdraw, Wilsford would be left without counsel. The court asked Wilsford about his refusal to communicate with Arledge. Wilsford complained that Arledge had come to see him "maybe three" times, had not shown him discovery, and had not "done anything for [him] in the entire year that he [had] been [his] attorney." Arledge disputed those assertions and began summarizing the actions he had taken on the case—including appearing at the jail, meeting with Wilsford in the bonding office, and showing him the State's videotape evidence against him—until Wilsford interrupted.
The court noted the number of attorneys who were no longer representing Wilsford in the case and asked him, "You see the pattern here, right?" Wilsford responded, "Well the first two quit. I didn't fire them." Wilsford then complained that his attorneys did not file a motion for speedy trial and eight other motions as he requested and that he had been sitting in jail for seventeen months. He also complained that although he "tried to fire [Arledge] on March 28 [date of the plea hearing] . . . [the court] refused to let you step down as my attorney." Arledge stated, "That's what I'm trying to do right now." Wilsford replied, "Well, you know, I'm trying to get this case dismissed so that's why I would like to speak on my own behalf. I've got plenty of reasons for this case to be dismissed and I brought documentation to prove it."
Wilsford claimed that he had not been formally arraigned, that he had not attended pretrial hearings, and that the indictment is a "bad indictment." As the court began to formally arraign him on the charges in the case, Wilsford interrupted, claiming that the indictment "failed for substance" and that he should not be arraigned because "you guys have already violated my rights." After the court finished reading the indictment and asked Wilsford for his plea, Wilsford refused, insisting, "That's a bad indictment." The court stated that it would enter a plea of "not guilty" on Wilsford's behalf. Next, the court read the indictment on the related charges for failure to appear and asked Wilsford for his plea. When Wilsford did not respond with his plea, the court entered another plea of "not guilty" on Wilsford's behalf. The court informed Wilsford that entry of the "not guilty" plea preserved his rights:
Court: You're talking, not listening. I'm going to enter on your behalf, to save your rights, a not guilty plea so all of your rights are preserved. I'm going to remind you that you have a Fifth Amendment right to remain silent. If you decide—
Wilsford: I don't want to remain silent. I want to speak on my own behalf for the record like I asked you to exercise my right when I first walked in here, Mr.—Mr. Steel.
Court: That's a really bad idea.
Before Wilsford began speaking again, the court asked Arledge to advise Wilsford of his Fifth Amendment rights, specifically, that he would be subject to cross-examination if he began speaking about his case and that if he did so, could not reassert his Fifth Amendment right. Arledge then explained those rights to Wilsford and said, "I advise you very strongly to be quiet, to either let a lawyer represent you or you can ask the judge to represent yourself and have a real trial and not an argument during a hearing on a motion to withdraw. That's all this is." He reiterated, "I'm trying to withdraw as your lawyer and it's a really bad idea for you to keep talking. It really is." Wilsford said, "All right," and Arledge urged him, "Don't do it." Disregarding that advice, Wilsford stated that he wanted to speak on his own behalf. Arledge renewed his motion to withdraw from the case, which the court granted.
The court confirmed that Wilsford wanted to waive his Fifth Amendment rights and stated its belief that Wilsford was "knowingly waiving [his] rights." Wilsford replied, "I am." Wilsford began by "swearing under penalty of perjury" that everything he was about to state was true and correct and referenced his Miranda rights. The court admonished Wilsford that by continuing to speak, he was waiving his Miranda rights. Wilsford replied, "I don't see how that is, sir." The court said that was why Wilsford needed an attorney "before [he] just start[ed] talking." But Wilsford maintained, "I still need to say what I need to say."
Wilsford went on to recount his "arriv[al] in Comal County on 7-3-17 after fighting [his] case in Bakersfield, California for nine months after [he] was set up and wrongfully arrested." Next, he listed his various complaints in the following order:
• having four "inadequate counsel" to represent him;At the conclusion of his recited complaints, Wilsford asked the district court to "dismiss this case." The court stated, "Your motion is denied," and asked Wilsford whether he wanted a new attorney or to try the case on his own. Wilsford replied that he wanted "a new attorney."
• Finley's claim of retirement, "which was a lie";
• his attorneys' failure to file nine motions;
• denial of his [timely] arraignment and his absence from pretrial hearings;
• denial of appointed "legal counsel of [his] choice";
• violation of his "right to postal correspondence and unrestricted access to the courts";
• violation of his "right to treatment for serious medical needs";
• violation of his "Sixth Amendment right to a speedy trial" during "two years now not only in Bakersfield but here";
• failure of the indictment "in form and substance" due to enhancements that were "fabricated," or old and from "four or five states away";
• lack of his own copy of discovery;
• violation of the Eighth Amendment due to wrongful segregation;
• violation of the Fourteenth Amendment due to illegal search and seizure of his jail cell;
• refusal of religious services and pastoral visitation; and
• the State Bar's inability to help him after he "told them all that's happened."
Wilsford stated that he wanted these nine motions filed: "a motion for discovery, a motion to preserve evidence, a motion to suppress evidence, a motion for a bill of particulars, a motion for Brady material, a motion for sanctions, a motion to subpoena the records, a motion for a speedy trial, and a motion for dismissals." Wilsford referenced copies of letters he filed that were admitted into evidence.
Wilsford stated that for seventeen months he had asked for a motion to dismiss.
The hearing on Arledge's motion to withdraw then proceeded to the State's cross-examination of Wilsford. Wilsford disputed the certified copy of a notice of arraignment from the clerk's file showing that he was set for arraignment on September 16, 2016, and the bailiff's certification of his failure to appear for his arraignment that day. According to Wilsford, it was "all fabricated . . . fabricated paperwork." The State pointed out that Wilsford was not in custody—as he claimed—when he failed to appear for arraignment because after that date, Wilsford was arrested in San Marcos for a separate offense. Wilsford responded, "There's so much fabricated paperwork I can't tell . . . what y'all are lying on and what you're not lying on." When the State presented Wilsford with a certified judgment of conviction for one of his prior offenses, Wilsford claimed he "didn't remember ever getting in any trouble in Travis County." Similarly, when asked if he denied committing the subject theft from Kohl's, Wilsford responded, "I didn't say I denied it. I said I don't remember it." Wilsford acknowledged that he "had been to jail quite a few times" in other counties for offenses including theft and possession of methamphetamine and had a criminal history in four other states.
The State also admitted a copy of the docket sheet signed by the judge for that day.
After the State completed Wilsford's cross-examination, the district court restated its ruling and appointed a fifth attorney to represent him:
Court: Okay. Again I will deny your motion to dismiss. You want new counsel. Your request for speedy trial is denied in the sense that you filed a complaint against your attorney. I can't bring you to speedy trial.
Wilsford: Uh-huh.
Court: You've had four attorneys.
Wilsford: Uh-huh.
Court: So your request for speedy trial is denied. We'll reappoint you a new attorney and we'll set it for pretrial as soon as we can. Who is it?
[Staff]: David Rodriguez.
Court: David Rodriguez. We'll give you the name and phone of Mr. Rodriguez. We will notify him probably—it will probably be next week before he'll get the notice. And thank you.
7. Fifth court-appointed attorney
A pretrial hearing was scheduled for January 2, 2019, reset by agreement to January 31, 2019, and again reset by agreement to April 1, 2019. On March 26, 2019, the case was called for trial announcements. The State announced "ready," but Rodriguez announced "not ready" because he did not have discovery. The State noted that Rodriguez was Wilsford's fifth attorney and that it had twice provided full discovery, once to Vargas and then to Arledge. Rodriguez told the court that he had attempted unsuccessfully to get discovery from Arledge. When the State remarked that Wilsford "can't get along with his attorneys," and when the district court asked Rodriguez if he had "a difficult client," Rodriguez replied, "Yes, Your Honor, that would be understating it." The court suggested that Rodriguez request discovery directly from the State and that the case would get a "special setting" in two weeks. The State told the court that Wilsford said he wanted a speedy trial, that the State had been ready for a year, and that it was Wilsford's "behavior leading to him not getting tried." An agreed reset was signed, scheduling Wilsford's case for jury trial on April 15, 2019. At the trial announcement setting on April 9, the case was reset by agreement for trial on May 20, 2019.
Wilsford's Trial and Sentencing
Wilsford's trial began on May 20, 2019. Before jury selection, Rodriguez asked the district court to withdraw from representing Wilsford, who "promised" Rodriguez that morning that he "would file a grievance against [him] on this case." The court confirmed that Rodriguez was prepared for trial and denied his motion to withdraw, noting "you are number five and so it's—it appears that the defendant is just attempting to manipulate the system. I'm not going to let him do that. I'm going to ask you to stay and—and do the best you can." At the conclusion of the trial, the jury convicted Wilsford and assessed his punishment at ten years' imprisonment. The district court entered judgment consistent with the jury's verdict. This appeal followed.
DISCUSSION
Speedy trial analysis under Barker factors and standard of review
The constitutional right to speedy trial protects defendants from oppressive pretrial incarceration, mitigates the defendant's anxiety and concern from public accusations, and ensures that the defendant can mount a defense. See U.S. Const. amends. VI, XIV; Leachman v. Stephens, 581 F. App'x 390, 402 (5th Cir. 2014) (noting that Sixth Amendment right to speedy trial applies to states by incorporation under Due Process Clause of Fourteenth Amendment); Henson v. State, 407 S.W.3d 764, 766 (Tex. Crim. App. 2013); State v. Davis, 549 S.W.3d 688, 697 (Tex. App.—Austin 2017, no pet.); see also Tex. Const. art. I, § 10 (Texas right to speedy trial). The right to a speedy trial attaches when a person "becomes an accused," meaning when he is arrested or when he is formally charged. Henson, 407 S.W.3d at 767.
Speedy trial claims under the federal or state constitution are analyzed on an ad hoc basis using the fact-specific balancing test in Barker v. Wingo, 407 U.S. 514, 530 (1972), which weighs the conduct of the prosecution and the defendant based on four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) any prejudice inflicted by the delay. Id.; Henson, 407 S.W.3d at 767; Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) ("The Texas constitutional speedy trial right exists independently of the federal guarantee, but this Court has traditionally analyzed claims of a denial of the state speedy trial right under the factors established in Barker"). Under the Barker test, the State bears the burden of justifying the length of the delay, but the defendant bears the burden of proving the last two factors: his assertion of the right to speedy trial and showing prejudice. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008); Davis, 549 S.W.3d at 697. We must apply the Barker test "with common sense and sensitivity to ensure that charges are dismissed only when the evidence shows that a defendant's actual and asserted interest in a speedy trial has been infringed." Cantu, 253 S.W.3d at 280. The constitutional right is an entitlement to a speedy trial, not to dismissal of the charges. Id.; see Barker, 407 U.S. at 536 (noting reluctance to rule that defendant was denied right to speedy trial when record strongly indicates that defendant did not want speedy trial but rather, dismissal of charges).
Before a court conducts a full Barker analysis, the defendant must first demonstrate that the time span between his arrest or formal charging and his trial has crossed the threshold from an ordinary delay to one that is considered presumptively prejudicial. See Doggett v. United States, 505 U.S. 647, 652 n.1 (1992); Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014); see also State v. Page, No. 05-18-01391-CR, 2020 Tex. App. LEXIS 3284, at *2 (Tex. App.—Dallas Apr. 17, 2020, no pet. h.) (op., not designated for publication). "Presumptive prejudice" marks the point at which courts deem the delay unreasonable enough to trigger further inquiry. Doggett, 505 U.S. at 652 n.1; Gonzales, 435 S.W.3d at 808; Page, 2020 Tex. App. LEXIS 3284, at *2. The right to speedy trial is imprecise, "necessarily relative," and "consistent with delays." Barker, 407 U.S. at 522, 530-31. No fixed amount of delay is too much. Henson, 407 S.W.3d at 767; see Barker, 407 U.S. at 533, 536 (concluding that delay of "well over five years" presented "close" case but no speedy trial violation). Thus, whether a delay is lengthy enough to be presumptively prejudicial, triggering consideration of the remaining Barker factors, "is necessarily dependent upon the peculiar circumstances of the case." Barker, 407 U.S. at 530-31; Zamorano, 84 S.W.3d at 648-49. Generally, delays "approaching one year" will trigger a speedy trial inquiry. Balderas v. State, 517 S.W.3d 756, 768 (Tex. Crim. App. 2016); Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003) (quoting Doggett, 505 U.S. at 652 n.1 ("[d]epending on the nature of the charges," courts have generally found postaccusation delays approaching one year "presumptively prejudicial")); Davis, 549 S.W.3d at 697.
Review of a speedy trial claim requires us to consider factual components of the trial court's ruling under an abuse-of-discretion standard and the court's legal determinations under a de novo standard. Cantu, 253 S.W.3d at 282; Davis, 549 S.W.3d at 697; see Newman v. State, 331 S.W.3d 447, 450 (Tex. Crim. App. 2011) (citing Zamorano, 84 S.W.3d at 648) ("Because appellant lost in the trial court on his speedy trial claim, we must presume the trial court resolved any disputed fact issues in the State's favor, and we must also defer to the implied findings of fact that the record supports."). We consider only the evidence that was before the trial court when it made its ruling, and that evidence is considered in the light most favorable to its ruling. Balderas, 517 S.W.3d at 768.
Preservation of speedy trial claim
Preservation requirements apply to speedy trial claims. Henson, 407 S.W.3d at 768. The requirement of preservation allows for development of a record in the trial court sufficient for a Barker analysis. Id.; see Grimaldo v. State, 130 S.W.3d 450, 454 (Tex. App.—Corpus Christi 2004, no pet.) ("it is the accused's burden to develop a record that a speedy trial violation occurred"); see also Davis v. State, 345 S.W.3d 71, 78 (Tex. Crim. App. 2011) (noting that appealing party has obligation to present appellate record demonstrating his entitlement to appellate relief). Among the requirements for preservation of a speedy trial claim is the presentation of evidence of the claim to the trial court. Grimaldo, 130 S.W.3d at 454; see Fletcher v. State, No. 05-17-00750-CR, 2019 Tex. App. LEXIS 1684, at *8 (Tex. App.—Dallas Mar. 5, 2019, pet. ref'd) (mem. op., not designated for publication) ("Insofar as [defendant] asserts the delay violated his right to speedy trial, [defendant] did not create a record to support this complaint."); Ortiz v. State, No. 07-17-00317-CR, 2018 Tex. App. LEXIS 9849, at *3 (Tex. App.—Amarillo Nov. 30, 2018, pet. ref'd) (mem. op., not designated for publication) (noting that defendant presented no evidence allowing trial court or appellate court to assess merits of his complaint under Barker analysis); Flores v. State, No. 07-16-00071-CR, 2018 Tex. App. LEXIS 1479, at *20 (Tex. App.—Amarillo Feb. 26, 2018, no pet.) (mem. op., not designated for publication) (noting that without evidence of prejudice, trial court and appellate court would be "entirely unable to assess that important aspect of a speedy trial complaint"); Van Hook v. State, No. 13-13-00198-CR, 2015 Tex. App. LEXIS 8965, at *5-6 (Tex. App.—Corpus Christi Aug. 27, 2015, no pet.) (mem. op., not designated for publication) (noting that although defendant raised his oral motion to dismiss on speedy trial grounds in trial court, he failed "to request a hearing or present any evidence on the matter before the trial court denied his oral motion"); Haley v. State, No. 05-11-01297-CR, 2013 Tex. App. LEXIS 271, at *11 (Tex. App.—Dallas Jan. 14, 2013, pet. ref'd) (mem. op., not designated for publication) (noting that defendant "did not present evidence on a number of the factors applicable to a speedy trial claim"). As we have noted, the last two factors of the Barker test—assertion of the right to speedy trial and a showing of prejudice—are the defendant's burden to prove. See Cantu, 253 S.W.3d at 280. A defendant's demand for speedy trial should be unambiguous. Henson, 407 S.W.3d at 769.
Here, Wilsford contends that he asserted his right to speedy trial as part of his unscheduled pro se complaints at the hearing on Arledge's motion to withdraw, but Wilsford failed to present evidence on the Barker factors necessary for a speedy trial claim. Importantly, Wilsford did not assert interest in an expedited trial, only the dismissal of his pending charges. At the start of the hearing, Wilsford candidly stated, "I'm trying to get this case dismissed so that's why I would like to speak on my own behalf." During the hearing, he complained to the court about delay that included events in Bakersfield unrelated to his Comal County prosecution. Additionally, the court heard about Wilsford's sustained creation of conflict with his appointed counsel—filing or threatening grievances against them, demanding that they file motions with the President, and refusing to communicate with them—necessarily slowing his progress toward trial. At the end of the hearing, Wilsford asked only that the court "dismiss this case." Moreover, Wilsford failed to develop a record that made some showing of prejudice from the delay.
As we have noted, part of our standard of review requires us to consider factual components of the trial court's ruling, Cantu, 253 S.W.3d at 282; Davis, 549 S.W.3d at 697, and we may consider only the evidence before the trial court when it ruled, Balderas, 517 S.W.3d at 768; see Grimaldo, 130 S.W.3d at 454 (noting that "although [defendant] raised the speedy trial issue below, there is no meaningful evidentiary record from which we can apply, analyze, or balance the Barker factors"); see also Fletcher, 2019 Tex. App. LEXIS 1684, at *9 (concluding that defendant's speedy trial claim was not preserved due in part to his failure to present evidence to trial court of Barker factors in support of his speedy trial claim or to otherwise develop record showing that delay was prejudicial to him). We conclude that Wilsford failed to preserve the speedy trial issue by neglecting to develop an evidentiary record sufficient for a Barker analysis.
No speedy trial violation where majority of delay was attributable to Wilsford
Even if Wilsford had preserved his speedy trial claim, he would not prevail on it.
1. Length of delay
The length of the delay in this case runs from when Wilsford was arrested on September 22, 2015, to when his trial began 1,336 days later on May 20, 2019. See Henson, 407 S.W.3d at 767; Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); Page, 2020 Tex. App. LEXIS 3284, at *8 (noting that because defendant was arrested, his right to speedy trial began running from that date, rather than date charging instrument was formally filed). Based on our review of the record, more than half that time—735 days—is excludable from that calculation as delay attributable to him. The remaining 601-day delay weighs in favor of Wilsford's speedy trial claim and is sufficient to trigger consideration of the other Barker factors but does not automatically constitute a violation of the speedy trial right. See Love v. State, 909 S.W.2d 930, 947 (Tex. App.—El Paso 1995, pet. ref'd) (noting that five-year delay was sufficient to undertake speedy trial consideration but did not automatically constitute violation of that right).
This calculation is based on time intervals including Wilsford's absconding from Texas, his extradition after his bond forfeiture, agreed resets—often due to counsels' withdrawals, and Wilsford's competency evaluation.
2. Reasons for delay
Under the second Barker factor, different weights are assigned to different reasons for the delay. Barker, 407 U.S. at 531; State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999). Some reasons are valid and justify an appropriate delay. Balderas, 517 S.W.3d at 768; see Dickey v. Florida, 398 U.S. 30, 38 (1970) ("Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable."). We consider whether the prosecution or the defendant bears more blame for the delay. Balderas, 517 S.W.3d at 768. Thus, a speedy trial violation may exist when the delay was exclusively for the convenience of the prosecution, but a defendant may be disentitled to the speedy-trial safeguard when there is a delay for which he has, or shares, responsibility. Dickey, 398 U.S. at 38, 48 (Brennan, J., concurring); Love, 909 S.W.2d at 947; Barnes v. State, No. 03-13-00434-CR, 2016 Tex. App. LEXIS 7403, at *19 (Tex. App.—Austin July 13, 2016, pet. ref'd) (mem. op., not designated for publication); see Balderas, 517 S.W.3d at 768 ("Delay caused by either the defendant or his counsel weighs against the defendant.").
Thus, a defendant cannot sustain a speedy trial claim when delay results from his being a fugitive from justice, making dilatory motions, failing to object when the prosecution is granted a continuance, or from delay due to his incompetence to stand trial. Dickey, 398 U.S. at 48 (Brennan, J., concurring); Love, 909 S.W.2d at 947; see Harper v. State, 567 S.W.3d 450, 461 (Tex. App.—Fort Worth 2019, no pet.) (noting that although defendant asserted his right to speedy trial, delays were attributable to questions regarding his competency to stand trial and his sanity when committing offense, along with twice changing his counsel; such postponements were designed to benefit or accommodate him, not State); see also Conlan v. United States, No. A-15-CV-603 LY, 2015 U.S. Dist. LEXIS 163935, at *12-13 (W.D. Tex. Dec. 7, 2015) (rejecting defendant's speedy trial claim and concluding that delay was attributable to "excusable delays" such as determination of defendant's competency and his numerous motions); Barnes, 2016 Tex. App. LEXIS 7403, at *20 (rejecting speedy trial claim because of delays attributable to defendant, including "determination of her competency to stand trial" and "multiple changes of defense counsel").
Here, the record reflects that Wilsford had or shared responsibility for multiple trial delays. The first consisted of the 291 days between his September 15, 2016 failure to appear at his scheduled arraignment, resulting in the forfeiture of his bond, and his July 3, 2017 arrest and extradition to Texas from California. Texas courts, including ours, have held that the time between a defendant's bond forfeiture and his re-arrest cannot be fairly charged to the State in a speedy trial analysis. See Davison v. State, 510 S.W.2d 316, 319 (Tex. Crim. App. 1974); Smith v. State, No. 03-02-00478-CR, 2003 Tex. App. LEXIS 3985 at *3 (Tex. App.—Austin 2003, no pet.) (mem. op., not designated for publication).
Other delays in the progress toward trial included numerous agreed resets. Delays attributable to agreed resets are excludable from the computation of time elapsed for the purposes of a speedy trial analysis and do not weigh against the State. See, e.g., Page, 2020 Tex. App. LEXIS 3284, at *16; Smith v. State, 436 S.W.3d 353, 365 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) ("We exclude the time covered by agreed resets from the speedy trial calculation because agreed resets are inconsistent with the assertion of a speedy trial right.") (internal quotations omitted).
Another delay not attributable to the State concerned the competency evaluation requested by defense counsel. See Grayless v. State, 567 S.W.2d 216, 220 (Tex. Crim. App. 1978) (noting that delays in bringing defendant to trial when there are claims of his incompetency do not ordinarily infringe on right to speedy trial); Staten v. State, 919 S.W.2d 493, 501 (Tex. App.—Fort Worth 1996, pet. ref'd) (noting that defendant was responsible for majority of delay, including his competency evaluations, which weighed against contention that he was denied speedy trial); Evans v. State, No. B14-87-620-CR, 1988 Tex. App. LEXIS 617, at *7 (Tex. App.—Houston [14th Dist.] Mar. 24, 1988, no pet.) (op., not designated for publication) ("[D]elays attributable to appellant's requested mental examinations are not considered in assessing a speedy trial violation").
Wilsford's repeated replacements of appointed counsel caused delays after Wilsford failed to communicate with them or filed grievances against them. See Valles v. State, 2020 Tex. App. LEXIS 503, at *17 (Tex. App.—El Paso Jan. 17, 2020, no pet.) (op., not designated for publication) (noting that record reflected defendant's "near-constant dissatisfaction with his appointed lawyers," and "trial court's observation that the 'pattern' of [defendant]'s behavior indicated that he was trying to avoid trial"); Atilano v. State, 2018 Tex. App. LEXIS 3201, at *11-12 (Tex. App.—Houston [1st Dist.] May 8, 2018, no pet.) (mem. op., not designated for publication) (concluding that defendant caused much of delay by repeatedly replacing his court-appointed counsel when he was dissatisfied with them); Harper, 567 S.W.3d at 461 (noting that trial delays were attributable in part to defendant's twice changing his counsel, which was designed to benefit or accommodate him, not State); Barnes, 2016 Tex. App. LEXIS 7403, at *20 (rejecting speedy trial claim due to delays caused in part by "multiple changes of defense counsel").
Finally, the reset between the September 17, 2018 trial setting and the November 26, 2018 trial settings was due to Wilsford's case not being reached. Nothing suggests that this reset was exclusively for the State's convenience; rather, Wilsford's case was sixth on the docket, and he had been incarcerated for less time than defendants in the cases listed ahead of his. See Dickey, 398 U.S. at 38 (noting that crowded dockets make some delays inevitable). This factor weighs against Wilsford's speedy trial claim.
3. Assertion of the right
Under the third Barker factor, we consider the defendant's assertion of his right to speedy trial. Wilsford presented his pro se speedy trial complaint, which was never set for hearing before the district court, at Arledge's hearing on his motion to withdraw held November 20, 2018. Wilsford's oral motion was presented more than three years after his September 22, 2015 arrest. See Zamorano, 84 S.W.3d at 651 (noting that defendant's initial motion for speedy trial filed two and a half years after his arrest "was tardy"). "[A] defendant's lack of a timely demand for a speedy trial indicates strongly that he did not really want a speedy trial and that he was not prejudiced by the lack of one." Dragoo, 96 S.W.3d at 314 (internal quotation omitted); Valles, 2020 Tex. App. LEXIS 503, at *18.
Letters that Wilsford filed while represented by counsel were not properly before the district court, which had not authorized hybrid representation. See Robinson v. State, 240 S.W.3d 919, 921-22 (Tex. Crim. App. 2007) (stating that "a trial court is free to disregard any pro se motions presented by a defendant who is represented by counsel"); Valles v. State, No. 08-18-00061-CR, 2020 Tex. App. LEXIS 503, at *7 (Tex. App.—El Paso Jan. 17, 2020, no pet.) (mem. op., not designated for publication) (noting that "criminal defendants generally are not entitled to 'hybrid representation'" and that "trial court was free to disregard [defendant]'s pro se submissions while represented by counsel").
Further, the speedy trial complaint that Wilsford combined with his other complaints sought only dismissal, not an expedited trial to determine his guilt or innocence for the charged theft offense. Wilsford plainly acknowledged that his objective was "trying to get this case dismissed." See Barker, 407 U.S. at 536 (noting reluctance to rule that defendant was denied right to speedy trial when record strongly indicated that defendant did not want speedy trial but rather dismissal of charges). The record supports the district court's determinations that Wilsford was engaged in a "pattern" of replacing appointed counsel, "obstruct[ing] this . . . procedure," and "putting stuff off" rather than pursuing his trial for the offense. See Valles, 2020 Tex. App. LEXIS 503, at *19 (noting that record supported trial court's observation that defendant's "pattern of filing complaints against his appointed counsel and continuously objecting to them indicated that he did not genuinely want a speedy trial," especially considering that defendant had failed to appear for trial setting while on bail). This factor weighs against Wilsford's speedy trial claim.
4. Prejudice
Under the fourth Barker factor, we consider prejudice to the defendant because of the length of delay. Prejudice is assessed in light of the three interests that a speedy trial is designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532; Balderas, 517 S.W.3d at 772. A defendant has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. Balderas, 517 S.W.3d at 772; Munoz, 991 S.W.2d at 826.
Nothing in Wilsford's oral speedy trial complaint to the district court addressed the prejudice factor. And although there is some presumption of prejudice due to the length of the delay in this case, that presumption is minimized by Wilsford's acquiescence to or involvement in most of the delay through agreed resets, his pattern of replacing his appointed counsel, and his failure to appear for arraignment requiring extradition from California, effectively rebutting that presumption. See Balderas, 517 S.W.3d at 773 (concluding that "any prejudice to [defendant] was extenuated by his role in requesting the delay"); Shaw v. State, 117 S.W.3d at 890 (stating that "presumption of prejudice to the defendant's ability to defend himself is 'extenuated . . . by the defendant's acquiescence' in the delay") (quoting Doggett, 505 U.S. at 658); Valles, 2020 Tex. App. LEXIS 503, at *21-22 (concluding that "to the extent any unspecified prejudice could be presumed in this case, [defendant]'s pattern of objecting to and failing to fully cooperate with appointed counsel—not to mention his failure to appear for a trial setting while free on bail—effectively constitute acquiescence to the trial delays that preclude [him] from prevailing on his speedy trial claim"); Atilano, 2018 Tex. App. LEXIS 3201, at *15 (stating that "[a] defendant cannot delay his own trial and then leverage that delay into a dismissal of the charges against him"). Wilsford failed to provide evidence that the delay caused him any greater anxiety or concern than that ordinarily associated with pending criminal charges. See Cantu, 253 S.W.3d at 286 (requiring evidence of "greater anxiety or concern beyond the level normally associated with a criminal charge or investigation" to suffice as proof of prejudice factor under Barker). Moreover, there was no discernible prejudice to Wilsford's defense where the theft was captured on security surveillance video, the theft was witnessed by a loss prevention officer who testified at trial, the stolen merchandise was recovered from Wilsford after his arrest, and he confessed to committing the theft after receipt of Miranda warnings. See Salazar v. State, No. 02-10-00105-CR, 2011 Tex. App. LEXIS 2403, at *23-24 (Tex. App.—Fort Worth Mar. 31, 2011, pet. ref'd) (mem. op., not designated for publication) (noting that defendant did not allege prejudice to his defense and that it would have been difficult for him to do so given his judicial confession to acts charged in his indictment).
Balancing these four factors—only one of which weighs in favor of Wilsford's claim—we conclude that the evidence before the district court when it ruled was sufficient to support its implicit finding that there was no speedy trial violation under Barker. See Balderas, 517 S.W.3d at 768 (considering only evidence before trial court when it made its ruling and then in light most favorable to its ruling); Zamorano, 84 S.W.3d at 648 (noting that when defendant loses speedy trial motion, appellate court presumes that trial court resolved any disputed fact issues in State's favor and defers to court's implicit fact findings that record supports). Accordingly, we conclude that the district court did not err "by failing to conduct a full and meaningful hearing on [Wilsford]'s pro se speedy trial complaint." We overrule Wilsford's appellate issue.
CONCLUSION
We affirm the district court's judgment of conviction.
/s/_________
Gisela D. Triana, Justice Before Chief Justice Rose, Justices Baker and Triana Affirmed Filed: July 24, 2020 Do Not Publish