Id. The Henson court cited Grimaldo v. State, 130 S.W.3d 450 (Tex. App.—Corpus Christi 2004, no pet.) as further support for its holding that speedy-trial claims must first be properly presented to the trial court for decision. Id. at 769 n.22 (citing Grimaldo)
The State asserts that appellant waived this argument on appeal by not raising the claim before trial began, not presenting evidence of the claim to the trial court, or by not obtaining a ruling after presentation of evidence of the claim. See Grimaldo v. State, 130 S.W.3d 450, 454 (Tex. App.-Corpus Christi- Edinburg 2004, no pet.). We therefore must address whether appellant preserved this issue for appeal. If preserved, we then analyze appellant's speedy trial claim using the fact-specific balancing test set forth in Barker v. Wingo, 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.
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.
The intermediate courts of appeals that have addressed the issue of whether a defendant may raise a speedy trial claim for the first time on appeal have held that to preserve the issue for appellate review the defendant must raise his speedy trial claim at or prior to trial. See, e.g., Fuller v. State, 224 S.W.3d 823, 826–27 (Tex.App.-Texarkana 2007, no pet.); Wade v. State, 83 S.W.3d 835, 838 (Tex.App.-Texarkana 2002, no pet.); Oldham v. State, 5 S.W.3d 840, 847 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Dean v. State, 995 S.W.2d 846, 850 (Tex.App.-Waco 1999, pet. ref'd); Guevara v. State, 985 S.W.2d 590, 592–93 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd); Ramirez v. State, 897 S.W.2d 428, 431 (Tex.App.-El Paso 1995, no pet.); see also Grimaldo v. State, 130 S.W.3d 450, 454 (Tex.App.-Corpus Christi 2004, no pet.) (holding, although defendant raised speedy trial issue in trial court, that claim not preserved because defendant failed to obtain evidentiary record from which appellate court could apply, analyze, and balance Barker factors). In Guevara, the Fourteenth Court of Appeals reasoned that the opposing view, that an appellant may raise a speedy trial claim for the first time on appeal, is based on a faulty reading of Barker.
The intermediate courts of appeals that have addressed the issue of whether a defendant may raise a speedy trial claim for the first time on appeal have held that to preserve the issue for appellate review the defendant must raise his speedy trial claim at or prior to trial. See, e.g., Fuller v. State, 224 S.W.3d 823, 826-27 (Tex. App.—Texarkana 2007, no pet.); Wade v. State, 83 S.W.3d 835, 838 (Tex. App.—Texarkana 2002, no pet.); Oldham v. State, 5 S.W.3d 840, 847 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd); Dean v. State, 995 S.W.2d 846, 850 (Tex. App.—Waco 1999, pet. ref'd); Guevara v. State, 985 S.W.2d 590, 592-93 (Tex. App.—Houston [14th Dist.] 1999, pet. ref'd); Ramirez v. State, 897 S.W.2d 428, 431 (Tex. App.—El Paso 1995, no pet.); see also Grimaldo v. State, 130 S.W.3d 450, 454 (Tex. App.—Corpus Christi 2004, no pet.) (holding, although defendant raised speedy trial issue in trial court, that claim not preserved because defendant failed to obtain evidentiary record from which appellate court could apply, analyze, and balance Barker factors). In Guevara, the Fourteenth Court of Appeals reasoned that the opposing view, that an appellant may raise a speedy trial claim for the first time on appeal, is based on a faulty reading of Barker. 985 S.W.2d at 592.
Id. The appellate court relied on State v. DeLeon , 975 S.W.2d 722 (Tex. App. – Corpus Christi-Edinburg 1998, no pet.) ; State v. Reyes , 162 S.W.3d 267 (Tex. App. – San Antonio 2005, no pet.) ; Newcomb v. State , 547 S.W.2d 37 (Tex. Crim. App. 1977) ; and Grimaldo v. State , 130 S.W.3d 450 (Tex. App. – Corpus Christi-Edinburg 2004, no pet.). Appellant has filed a petition for discretionary review arguing, inter alia , that the Court of Appeals erred in failing to conduct a de novo review.
op., not designated for publication); Haley v. State, No. 05–11–01297–CR, 2013 WL 222275, at *3–4, 2013 LEXIS 271, at *8–11 (Tex.App.-Dallas January 14, 2013, no pet. hist.)(mem. op., not designated for publication); Fuller v. State, 224 S.W.3d 823, 826–27 (Tex.App.-Texarkana 2007, no pet.); Hucks v. State, 348 S.W.3d 359, 363 (Tex.App.-Amarillo 2011, no pet.); Ramirez v. State, 897 S.W.2d 428, 431 (Tex.App.-El Paso 1995, no pet.); Dean v. State, 995 S.W.2d 846, 850 (Tex.App.-Waco 1999, pet. ref'd); Grimaldo v. State, 130 S.W.3d 450, 454 (Tex.App.-Corpus Christi 2004, no pet.); Guevara v. State, 985 S.W.2d 590, 592–93 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd).V
Wyatt, 2015 WL 3522967, at *4 (citing Grimaldo v. State, 130 S.W.3d 450, 453 (Tex. App.-Corpus Christi-Edinburg 2004, no pet.)). Allegations in an appellate brief are not enough.
In other words, although Taylor "raised the speedy trial issue below, there is no meaningful evidentiary record from which we can apply, analyze, or balance the Barker factors." Grimaldo v. State , 130 S.W.3d 450, 454 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.). In Grimaldo v. State , we declined to apply the Barker factors because the record contained no speedy trial hearing.
But the record does not establish what these men would have testified to or whether their testimony could have been obtained even if trial took place earlier.See Grimaldo v. State, 130 S.W.3d 450, 453 (Tex. App.—Corpus Christi-Edinburg 2004, no pet.) (noting that "it is the accused's burden to develop a record that a speedy trial violation occurred and that it was asserted in the trial court"). Under these circumstances, we would not conclude that appellant's speedy-trial rights were violated.