No. 05-09-01527-CR
Opinion Filed November 2, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-71955-U.
Before Justices BRIDGES, RICHTER, and MURPHY.
Opinion By Justice RICHTER.
A jury found appellant guilty of aggravated robbery and the trial court sentenced him to thirty years' imprisonment. In a single issue on appeal, appellant complains he was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. We affirm the trial court's judgment.
Background
Appellant was indicted on April 6, 2007. On November 12, 2007, appellant was evaluated and found incompetent to stand trial. A second evaluation was done on December 20, 2007, and again, appellant was found not competent. Appellant was further evaluated on February 3, 2008 and found incompetent. On April 24, 2008, the trial court signed a judgment. The judgment stated that appellant was incompetent to stand trial and committed appellant to the state hospital for a period not to exceed 120 days. In January 2009, the court ordered that appellant be examined for competency again. In February 2009, the trial judge signed an order finding that appellant was mentally ill and incompetent to stand trial and ordered that appellant be committed to the state hospital for extended mental health services for a period not to exceed twelve months. On June 4, 2009, the state hospital reported that appellant was competent to stand trial. Trial commenced on December 10, 2009. Discussion
In a single issue, appellant contends he was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. The State responds that appellant has not preserved the alleged error for our review, or alternatively, that appellant was not denied his right to a speedy trial. An accused is guaranteed the right to a speedy trial by the Sixth Amendment to the United States Constitution. See U. S. Const. amend. VI; Barker v. Wingo, 407 U.S. 514, 530-32 (1972); Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002). Although the Texas constitution also guarantees an accused's right to a speedy trial, only the federal right is at issue here. See Tex. Const. art 1, § 10. Appellant maintains he "arguably asserted his right to a speedy trial" when he filed a pro se motion for an examining trial. We disagree. Appellant was represented by counsel at the time the motion was filed, and there is no indication the motion was presented to the trial court. See Lamar v. State, No. 05-04-00741-CR, 2005 WL 1871024 (Tex. App.-Dallas August 9, 2005, pet. dism'd) (not designated for publication) (concluding defendant can not be said to have raised right to speedy trial unless he brings the matter to the court's attention). In addition, the motion sought an examining trial for the purpose of determining whether there was probable cause to imprison appellant and whether bail was excessive; there was no mention of a speedy trial. Thus, appellant failed to raise his speedy trial argument in the court below. According to the Court of Criminal Appeals in Mulder v. State, such a default results in a waiver of the complaint on appeal. See Mulder v. State, 707 S.W.2d 908, 914-15 (Tex. Crim. App. 1986); Fraire v. State, 588 S.W.2d 789, 791 (Tex. Crim. App. 1979); Wade v. State, 83 S.W.3d 835, 838-39 (Tex. App.-Texarkana 2002, no pet.). Additionally, other courts have refused to consider a speedy trial claim that was not asserted in the trial court. See Iyebutemeh v. State, No. 05-01-00873-CR, 2002 WL 1752203 (Tex. App.-Dallas July 30, 2002, no pet.) (not designated for publication); Oldham v. State, 5 S.W.3d 840, 846 (Tex. App-Houston [14th Dist.] 1999, pet. ref'd) (holding that unless a defendant brings the matter to the attention of the trial court, he or she cannot be said to have asserted his or her right to a speedy trial; and, without a hearing, the prosecution has no opportunity to establish the reasons for the delay, and neither party can adequately establish or refute the existence of prejudice); Guevara v. State, 985 S.W.2d 590, 592-93 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (noting that under Barker, the United States Supreme Court has also said the defendant bears some responsibility to assert the right); Ramirez v. State, 897 S.W.2d 428, 431 (Tex. App.-El Paso 1995, no pet.) (holding that before a court can conduct a speedy trial analysis, the record must reflect that appellant raised his speedy trial claim in the trial court); Serna v. State, 882 S.W.2d 885, 889-90 (Tex. App.-Corpus Christi 1994, no pet.); Jones v. State, 740 S.W.2d 497, 498 (Tex. App.-Dallas 1987, pet. ref'd). Therefore, we conclude appellant has forfeited his right to assert a speedy trial complaint on appeal. Appellant's sole issue is overruled. The judgment of the trial court is affirmed.