In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-12-00137-CR

BILLY WAYNE SPEIGHTS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 102nd District Court

Bowie County, Texas

Trial Court No. 09F0006-102

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice Morriss

Concurring Opinion by Justice Carter
2

MEMORANDUM OPINION

For a variety of reasons, Billy Wayne Speights’ trial—on three charges, aggravated 

sexual assault, indecency with a child by sexual contact, and indecency with a child by 

exposure—was delayed, until more than three and one-half years after his arrest. Speights 

appeals his convictions and sentences1 asserting that he was denied a speedy trial on all three 

charges and that the third charge, indecency by exposure, subjected him to double jeopardy. 

Because (1) Speights’ right to a speedy trial was not violated and (2) the exposure charge 

subjected Speights to double jeopardy, we reverse and render an acquittal on the charge of 

indecency with a child by exposure, but affirm the remainder of the convictions and sentences.

(1) Speights’ Right to a Speedy Trial Was Not Violated

The Sixth Amendment to the United States Constitution guarantees the right to a speedy 

trial. This right protects the accused from anxiety and concern that accompanies a public 

accusation, seeks to avoid impairment to a defense, and assures freedom from oppressive pretrial 

incarceration. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008) (citing Barker v. 

Wingo, 407 U.S. 514, 532 (1972)).

The right to a speedy trial cannot be quantified in days or months. Barker v. Wingo, 407 

U.S. 514, 523 (1972). Thus, Texas courts “analyze federal constitutional speedy-trial claims ‘on 

an ad hoc basis’ by weighing and then balancing the Barker v. Wingo factors.” Cantu, 253 

S.W.3d at 280. These factors include the (a) length of the delay, (b) reason for the delay,

 1

A jury convicted Speights of all three offenses. He was sentenced to sixty years’ imprisonment for the aggravated 

sexual assault, twenty for indecency by contact, and ten for indecency by exposure.
3

(c) assertion of the right, and (d) prejudice to the accused. Barker, 407 U.S. at 530; Cantu, 253 

S.W.3d at 280. “[T]he greater the State’s bad faith or official negligence and the longer its 

actions delay a trial, the less a defendant must show actual prejudice or prove diligence in 

asserting his right to a speedy trial.” Cantu, 253 S.W.3d at 280–81. No one factor is 

determinative, and all factors must be considered together along with relevant circumstances on a 

case-by-case basis. Id. at 281.

“In reviewing the trial court’s ruling on [an accused’s] federal constitutional speedy trial 

claim, we apply a bifurcated standard of review: an abuse of discretion standard for the factual 

components, and a de novo standard for the legal components.” Id. at 282 (quoting Zamorano v.

State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002)). Review of the Barker factors involves both 

legal and factual determinations, but “[t]he balancing test as a whole . . . is a purely legal 

question.” Id. (quoting Zamorano, 84 S.W.3d at 648 n.19). Under an abuse-of-discretion 

standard, we defer to the trial judge’s resolution of facts and reasonable inferences drawn 

therefrom, and we review the evidence in a light most favorable to the ruling. Id.

(a) Length of the Delay

The Barker test is triggered by a delay that is unreasonable enough to be considered 

presumptively prejudicial. Id. at 281. In this case, Speights was arrested November 7, 2008, the

indictment was filed February 3, 2009, and the trial was conducted starting July 17, 2012. As 

conceded by the State, this delay is presumptively prejudicial. See id. (citing Phillips v. State, 

650 S.W.2d 396, 399 (Tex. Crim. App. 1983); Doggett v. United States, 505 U.S. 647, 651–52 

n.1 (1992) (delays approaching one year presumptively prejudicial)).
4

This factor weighs toward a finding that Speights was denied a speedy trial.

(b) Reason for the Delay

On February 5, 2009, the public defender’s office was appointed to represent Speights, 

and his case was originally set for trial in September 2009, less than one year after his arrest.2 

For reasons not included in the record, the trial did not occur. At the hearing on the motion for 

speedy trial, the State argued that the public defender handling Speights’ case left the public 

defender’s office, causing another attorney to be assigned to the case. The State represented that 

the new defense counsel did not pursue a prompt trial because the parties thought a polygraph 

examination might dispose of the case, or at least help determine what should be done with the 

case. During the polygraph examination, however, it was discovered that Speights was “under 

medication particularly for blood pressure or a heart condition that made a true test impossible.” 

The State decided to “wait and see if Mr. Speights’ medical condition would improve to the 

point where a test could be done.” The State told the court that the inconclusive test was “very 

recent[ly]” conducted, although the date of the test could not be produced. The State argued that 

the delay was “not the State’s fault, but rather the process of an election and the process of a 

polygraph,” and pointed out that the defense had “not moved for a trial setting.” 

Then another complication arose. The district attorney overseeing the prosecution of 

Speights’ case became the elected district judge. The trial court noted that “this case was 

arraigned on March 5, 2009,” and took “judicial notice of the fact that Bobby Lockhart was the 

 2

After the March 5, 2009, arraignment, the court’s docket sheet indicates that pretrial hearings were reset May 14, 

July 1, and August 20, 2009. There is no motion or letter objecting to the matter being reset by either the State or 

Speights.
5

sitting criminal district attorney here in Bowie County at that time.” The court also took 

“judicial notice of the fact that Mr. Lockhart was elected to serve as judge of the 102nd, took 

office on January 1, 2011, and is still seated in that position.” Prosecutor James Elliot advised

the court,

That caused this case to be shifted into—I think first we had a visiting judge, and 

then we ran out of money, so the case had to once again be shifted from Judge 

John Miller to its present location in this court, which is in the 202nd District 

Court. That administratively has accounted for much delay because we have had 

to, in essence, share the docket with the current cases pending in the 202.

The trial court recalled,

At that point in time, the courts requested that a visiting judge be appointed. The 

administrative judge, Judge John Ovard of the First Administrative District, 

appointed Judge Miller, after much discussion, to continue with the docket with 

the understanding that the administrative district had very limited funds available. 

At that point in time, we also had a change of county judges. The new county 

judge that took office at the same time that Judge Lockhart did was unable to 

make a determination whether or not Judge Miller would be able to continue to sit 

as a visiting judge and whether Bowie County would be able to pick up those 

funds. At that point in time, in April, or actually in March, it became apparent to 

the county and the county judge at that time that Bowie County did not have the 

funds. We had a couple of capital murder cases that were going to be tried; the 

Delma Banks case, as well as shortly thereafter a deputy was killed State and 

Tucker Strickland was arrested on that with the potential for capital murder. 

Based on those circumstances the county decided to approach the district judges 

and myself, as the administrative judge of this county, about one of the sitting 

district judges picking up . . . the docket because the county did not have the 

funds. At that point in time, I worked out an agreement with Judge Lockhart 

about picking up some civil cases, but I took over the 102nd criminal docket that 

was pending that Judge Lockhart was disqualified from. As Mr. Elliott has 

indicated in his comments, and as the record will reflect, I have a large 202nd 

criminal docket as well as a civil docket, and we have been setting cases and 

trying to resolve those cases. We have resolved a number of those cases. 

However, there are still some pending, including this case. This Court has 

worked with the district attorney’s office about finding dates for cases. We have 

tried a number of individuals that have been in jail charged with serious offenses, 

and we are proceeding with that and we are here. Part of the delay is due to the 
6

fact that this Court is now responsible for the jurisdiction of the 102nd criminal

cases as well as the entire 202nd cases, which takes up half of the cases filed in 

Bowie County. So that is part of the delay indicated for it and accounts for some 

of the delay that has occurred since 2011.

While the “burden of excusing the delay rests with the State, . . . different weights should 

be assigned to different reasons” when analyzing this prong of the Barker test. Phillips, 650 

S.W.2d at 400; see Barker, 407 U.S. at 531. Deliberate attempts to delay trial in order to hamper 

a defense are weighed heavily against the State.3

 Barker, 407 U.S. at 531. More neutral reasons, 

such as negligence or overcrowded courts are weighed less heavily against the State. Id.; 

Zamorano, 84 S.W.3d at 649–50; State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999). 

A valid reason for delay “should serve to justify appropriate delay.” Id. Delay which is 

attributable in whole or in part to the defendant is heavily weighed against the defendant and can 

constitute waiver of a speedy-trial claim.4 Munoz, 991 S.W.2d at 822 (citing Dickey v. Florida, 

398 U.S. 30 (1970)).

Although this case was set for trial in September 2009 that never occurred, the record 

fails to demonstrate any deliberate attempts by the State to delay or hamper the defense. There 

were neutral reasons which attributed to this delay. After the district attorney became the district 

judge, a host of reasons involving lack of funds and the trial court’s docket contributed to the 

delay. These neutral reasons are “‘weighed [against the government] less heavily.’” Bosworth v. 

State, No. 06-12-00058-CR, 2013 WL 563321, at *2 (Tex. App.—Texarkana Feb. 15, 2013, pet. 

ref’d) (quoting Barker, 407 U.S. at 531).

 3

Defense counsel clarified, “[W]e’re not alleging bad faith here.” 

4

The complexity of the charged offense should also be considered; “[T]he delay that can be tolerated for an ordinary 

street crime is considerably less than for a serious, complex conspiracy charge.” Barker, 407 U.S. at 531. 
7

On the other hand, delay attributed to Speights is weighed heavily against him. Munoz, 

991 S.W.2d at 822. A February 17, 2011, pretrial hearing was reset without explanation in the 

record, but during a December 5, 2011, setting, Speights’ counsel asked if the court could 

“tentatively set” the matter for trial eight months later on July 17, 2012. The trial court also 

heard that part of the delay was due to another public defender being assigned to the case who 

wanted to conduct polygraph examinations with the hope that a positive result could benefit 

Speights. Thus, the parties decided to wait until Speights’ medical condition improved before 

the second polygraph examination. Speight’s brief asserts that the July 17, 2012, trial setting 

was to provide time to see if a good polygraph examination could resolve the case. 

While there is every indication that neutral reasons played a role in the delay of trial, we 

find that Speights’ desire to take a polygraph examination in the hopes that it would exonerate 

him and his request to delay the trial for over seven months also played a role in the delay. 

Overall, we weigh this factor slightly against Speights.

(c) Assertion of the Right 

Next, Speights had the responsibility to timely assert his right to a speedy trial. Cantu, 

253 S.W.3d at 282 (citing Barker, 407 U.S. at 527–28). “The constitutional right is that of a 

speedy trial, not dismissal of the charges.” Id. at 281.

Speights’ first motion asserting a speedy-trial right was filed August 11, 2010. The 

motion alleged that Speights had always announced that he was ready for trial and had never 

requested a continuance (although the record shows that pretrial was reset four times without 

objection). This motion asked for a speedy-trial hearing and did not request a dismissal. 
8

However, no hearing was held on this motion, and there is nothing demonstrating that it was 

brought to the trial court’s attention.

Speedy-trial claims must be preserved. Henson v. State, No. PD-1249-12, 2013 WL 

4820220 (Tex. Crim. App. Sept. 11, 2013); see Robinson v. State, 470 S.W.2d 697, 699 (Tex. 

Crim. App. 1971). The court explained,

One notable difference between [other Constitutional rights] and the right to a 

speedy trial is that the other rights do not have so great an incentive for the 

defendant to sleep on his rights. As has been discussed, the deprivation of a 

speedy trial often can benefit the appellant. Without a requirement of 

preservation, a defendant would have great incentive not to insist on a speedy trial 

and then to argue for the first time on appeal that the prosecution should be 

dismissed because of delay. The requirement of preservation forces the defendant 

to pick one strategy. He can either fail to insist on a speedy trial and possibly reap 

benefits caused by delay, or he can insist on a prompt trial, and if it is not granted, 

argue for a dismissal. He may not do both.

Id. at *3.

Texas Rule of Appellate Procedure 33.1 states,

As a prerequisite to presenting a complaint for appellate review, the record must 

show that: 

. . . .

 (2) the trial court: 

 (A) ruled on the request, objection, or motion, either expressly or 

implicitly; or 

 (B) refused to rule on the request, objection, or motion, and the 

complaining party objected to the refusal.

TEX. R. APP. P. 33.1(a)(2).
9

In issuing its ruling in Henson, the Texas Court of Criminal Appeals wrote, “Our 

conclusion is strengthened by the fact that every court of appeals to consider the issue has upheld 

a preservation requirement,” and then cited to one opinion from each of our sister courts to 

support the statement. Tellingly, Henson used Guevara, issued from the Fourteenth Court of 

Appeals, as its example. That case held that “[a] motion [for speedy trial] must be ‘presented’ to 

the trial court to preserve a complaint for appellate review and presentment means more than a 

mere filing.” Guevara v. State, 985 S.W.2d 590, (Tex. App.—Houston [14th Dist.] 1999, pet. 

ref’d); see Crocker v. State, No. 01-11-00095-CR, 2013 WL 269122, at *2 (Tex. App.—Houston 

[1st Dist.] Jan. 24, 2013, pet. ref’d). Guevara further explained that “[t]he movant must make 

the trial judge aware of the motion by calling the judge’s attention to it in open court and 

requesting a ruling thereon.” Id.; see also Wright v. State, No. 05-09-01527-CR, 2011 WL 

5178298, at *1 (Tex. App.—Dallas Nov. 2, 2011, no pet.) (not designated for publication) (citing 

Lamar v. State, No. 05-04-00741-CR, 2005 WL 1871024 (Tex. App.—Dallas Aug. 9, 2005, pet. 

dism’d) (not designated for publication) (right to speedy trial not raised unless brought to court’s 

attention)); Wrighter v. State, No. 08-99-00109-CR, 2003 WL 318527, at *2 (Tex. App.—El 

Paso Feb. 13, 2003, pet. ref’d) (not designated for publication);5 Leal v. State, 626 S.W.2d 866, 

867 (Tex. App.—Corpus Christi 1981, no pet.); see also Robinson, 470 S.W.2d at 699.

Of course, unlike Henson and Guevara, Speights reasserted his right and secured a ruling 

just before trial. The matter is preserved for our review, but, in our view, the delay in 

 5

Although these unpublished cases have no precedential value, we may take guidance from them “as an aid in 

developing reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, 

pet. ref'd).
10

presentment is relevant in determining this Barker factor. In weighing the degree to which 

Speights asserted the right, we may consider the “frequency and force of [the defendant’s] 

objections” to the delay. Barker, 407 U.S. at 529; see Wrighter, 2003 WL 318527, at *2 

(defendant’s inaction between filing motion and trial); see also Turner v. Estelle, 515 F.2d 853, 

857–58 (5th Cir. [Tex.] 1975) (consider timing of defendant’s assertion of right to immediate 

trial); Dragoo v. State, 96 S.W.3d 308, 314–15 (Tex. Crim. App. 2003) (defendant’s “quiet 

acquiescence” in delay counts against speedy-trial claim); Harris v. State, 827 S.W.2d 949, 957 

(Tex. Crim. App. 1992), cert. denied, 506 U.S. 942 (1992) (deferred or absence of request for 

prompt trial counts against claim, even if motion to dismiss filed); Orosco v. State, 827 S.W.2d 

575, 577 (Tex. App.—Fort Worth 1992, pet. ref”d), cert. denied, 506 U.S. 960 (1992) (failure to 

request hearing until eve of trial weakens speedy-trial claim). It was not until July 17, 2012, the 

day of trial, that Speights filed a “Motion to Quash and Dismiss Indictment for Violation of 

Defendant’s Right to a Speedy Trial.” This second motion sought a dismissal of the indictment, 

“or in the alternative,” a hearing on the speedy-trial issue. “Filing for a dismissal instead of a 

speedy trial will generally weaken a speedy-trial claim because it shows a desire to have no trial 

instead of a speedy one.” Cantu, 253 S.W.3d at 283. Further, the record establishes that 

Speights was released on making a personal recognizance bond a few days after his first motion 

for speedy trial. His failure to bring the first motion to the court’s attention suggests that his 

intent in filing it was to be released from jail. For the first time, on the day of trial, the speedytrial issue was called to the court’s attention, and a hearing was held.
11

“[T]he defendant’s assertion of his speedy-trial right (or his failure to assert it) is entitled 

to strong evidentiary weight in determining whether the defendant is being deprived of the 

right.” Id. Though Speights’ first speedy-trial motion was filed August 11, 2010, the record is 

very thin on any indication that Speights took any action to pursue the first motion until the day 

of trial, almost two years after the first motion was filed. Only then was the speedy-trial issue 

brought to the court’s attention by way of a motion to dismiss. Failure to make a request for a 

speedy trial “supports an inference that the defendant does not really want a trial, he wants only a 

dismissal.” Id. at 283 (quoting Barker, 407 U.S. at 534–36). Given the current precedent, we 

must find that the delay in pursuing his first speedy-trial motion weighs against Speights. See

Dragoo, 96 S.W.3d at 314–15.

(d) Prejudice to the Accused

Prejudice occasioned by the delay in proceeding to trial is assessed in the light of the 

three interests the right to a speedy trial was designed to protect: (1) freedom from oppressive 

pretrial incarceration, (2) mitigation of the anxiety and concern on the part of the accused that 

accompanies a public accusation, and (3) avoidance of impairment to the defense of the charges. 

Barker, 407 U.S. at 532. “[T]he burden is on the accused to make some showing of prejudice 

which was caused by the delay of his trial.” Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. 

App. 1973).
12

Speights was incarcerated for a total period of 652 days.6 After his release, he was 

placed into an alternative incarceration program. In Munoz, the Texas Court of Criminal 

Appeals found “dispositive” of the oppressive pretrial incarceration subfactor the fact that 

Munoz “was incarcerated during the entire seventeen-month delay.” Murray, 991 S.W.2d at 

828. Likewise, this record establishes that Speights was subjected to oppressive pretrial 

incarceration.

Speights filed an affidavit stating that he had “been living under a cloud of suspicion of 

being a pedophile or a child molester for almost four years,” causing him “great anxiety,” and 

impeding his ability “to find work.” The trial court failed to make findings relating to Speights’

anxiety and concern. Given the duration of the pretrial incarceration and house arrest, and “in 

the absence of evidence to the contrary, we find that the appellant’s anxiety and concern were 

not minimized.” Webb v. State, 36 S.W.3d 164, 174 (Tex. App.—Houston [14th Dist.] 2000, 

pet. ref’d) (uncontradicted letters to court claiming anxiety and duress, sufficient to show 

prejudice).

Limiting the impairment of a defense is the most serious interest protected by the right to 

a speedy trial. Barker, 407 U.S. at 531. If witnesses become unavailable during a delay or are 

unable to recall events, prejudice is obvious. Id. at 532. In an affidavit filed with the second 

motion and at the hearing, Speights claimed that “three witnesses are now unavailable either due 

to the witness leaving the jurisdiction or residing in places unknown.” These witnesses included: 

 6

An application for writ of habeas corpus and motion for reasonable bond was filed August 19, 2010. The motion 

was granted on the following day, a personal recognizance bond was set at $10,000.00 and made, and Speights was 

released. 
13

the victim’s biological mother (Mother),7 who allegedly was asleep in the bed with the victim at 

a time when Speights removed the victim from the bed; the “maternal grandmother of the 

complaining witness” who lived with the victim during the alleged abuse; and the Mother’s 

former girlfriend who was expected to testify that Mother “filed false charges against her for 

sexually assaulting the alleged victim’s sister” after the termination of their relationship. 

“[C]onsideration of prejudice is not limited to the specifically demonstrable, and . . . 

affirmative proof of particularized prejudice is not essential to every speedy trial claim.” 

Doggett, 505 U.S. at 655. Speights had the burden, however, to make a prima facie showing of 

prejudice. Dokter v. State, 281 S.W.3d 152, 159 (Tex. App.––Texarkana 2009, no pet.). A 

defendant must offer more than mere speculation of faded memories to show prejudice. Munoz, 

991 S.W.2d at 829. The trial court explained that it had “no testimony before it other than just 

the affidavit filed by Mr. Speights as it relates to what [these witnesses] could possibly have 

testified to. . . . It’s all speculation on his part about what they could possibly testify to other than 

being in the house.”8

 “In assessing the evidence at a speedy-trial hearing [or in this case, 

evidence presented in an affidavit], the trial judge may completely disregard a witness’s 

 7

Speights also suggested that the mother was the original outcry witness. However, the record establishes that 

although the child “tried to tell his mother . . . she told him to go on.” The record fails to indicate what the child 

actually said to his mother. The Texas Court of Criminal Appeals has interpreted Article 38.072 of the Texas Code 

of Criminal Procedure to require that the previous statement be one which “in some discernible manner describes the 

alleged offense.” Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). It must be “more than words which 

give a general allusion that something in the area of child abuse was going . . . .The statute demands more than a 

general allusion of sexual abuse.” Id.; see also Thomas v. State, 1 S.W.3d 138, 140–41 (Tex. App.—Texarkana 

1999, pet. ref’d).

8

The child’s therapist, Karrah Dickeson, testified that, if the case had gone to trial in 2010, before her sessions with 

him, it would have been difficult for him to testify. Speights argues that this testimony suggested that the child 

“would have (or would likely have) been unable to testify because he required post-traumatic cognitive behavioral 

therapy.” We characterize this argument as speculation. 
14

testimony . . . , even if that testimony is uncontroverted.” Cantu, 253 S.W.3d at 282. Giving 

deference to the trial court’s factual findings,9 we conclude that impairment of the defense, the 

most important consideration under this factor, was not shown. Barker, 407 U.S. at 532.

Though “actual prejudice” need not be proven, a defendant has a burden to show some 

prejudice due to the delay of his or her trial. Harris, 489 S.W.2d at 308; Courtney v. State, 472 

S.W.2d 151, 154 (Tex. Crim. App. 1971); Marquez v. State, 165 S.W.3d 741, 749 (Tex. App.—

San Antonio 2005, pet. ref’d). Where a defendant claims that witnesses became unavailable 

because of the delay, he or she must make a showing that “the witnesses are unavailable, that 

their testimony might be material and relevant to his case, and that he [or she] has exercised due 

diligence in his attempt to find them and produce them for trial.” Harris, 489 S.W.2d at 308; see 

Phipps v. State, 630 S.W.2d 942, 947 (Tex. Crim. App. 1982) (“Even if it be conceded that the 

testimony of the missing witnesses was material to the instant case, the appellant has not shown 

diligence in procuring the witnesses as the record fails to indicate that the witnesses were 

subpoenaed.”); Marquez, 165 S.W.3d at 750. Here, Speights claims that witnesses are 

unavailable, but makes little more than a vague, conclusory statement that amounts to his claim 

that he does not know where they are and that he understands one or more may be out of state. 

He fails to give any account for what he did, if anything, to try to find them or secure their 

presence at trial. And, while Speights speculates about what those witnesses might have testified 

to, that is just speculation in this record, which fails to demonstrate that Speights’ ability to 

 9

The trial court also found that “any prejudice that he would’ve had from the delays was overcome by the benefits of 

being allowed the opportunity to take the polygraph examination and possibly dispose of this case in a positive 

manner for him.” While we defer to the trial court’s findings of fact, this prejudice-benefit analysis was a weighing 

matter, which we review de novo. See Cantu, 253 S.W.3d at 282. We agree, however, that this point tends to 

ameliorate any prejudice to Speights.
15

defend himself was prejudiced by the delay. See Phipps, 630 S.W.2d at 947; Harris, 489 S.W.2d 

at 309.

Our review of the three prongs of the prejudice factor leads us to conclude that Speights 

made a prima facie showing of prejudice given the length of incarceration and uncontradicted 

statements of anxiety. However, because impairment to the defense was not shown, we find this 

Barker factor weighs slightly against Speights. See Bosworth, 2013 WL 563321, at *11.

(e) Balancing

“Having addressed the four Barker factors, we must now balance them.” Dragoo, 96 

S.W.3d at 316. Though the length of delay weighs in Speights’ favor, the prejudice factor 

weighs slightly against him. Add to that the facts that Speights contributed to the delay in hopes 

that a polygraph examination would benefit him, that he failed to request a hearing on the first 

motion for speedy trial, and that he failed to bring the speedy-trial issue to the trial court’s 

attention before the day of trial—when he urged his second request for dismissal—all of which 

weigh against him. Given the facts of this case, we hold that the weight of the factors, when 

balanced together, ultimately tips the scales against Speights, and leads us to conclude that his 

right to a speedy trial was not violated.

(2) The Exposure Charge Subjected Speights to Double Jeopardy

Speights also contends that his conviction for indecency with a child by exposure 

improperly subjected him to double jeopardy because it was a lesser-included offense within the 

charge of indecency with a child by sexual contact for which he was also convicted and 

sentenced. 
16

A defendant must generally raise a double-jeopardy claim at the trial court level to 

preserve error for appellate review. Rangel v. State, 179 S.W.3d 64, 70 (Tex. App.—San 

Antonio 2005, pet. ref’d). However, when a double-jeopardy violation is clearly apparent from 

the face of the record, it can be raised for the first time on appeal. Bigon v. State, 252 S.W.3d 

360, 369 (Tex. Crim. App. 2008); Rangel, 179 S.W.3d at 70. Here, Speights claims he was 

charged in one indictment for indecency with a child by sexual contact and indecency with a 

child by exposure, arising from the same act in two different separate counts. Thus, any error 

will be apparent on the face of the record and can be reviewed. Rangel, 179 S.W.3d at 70–71.

Our founding fathers recognized that allowing states to subject citizens to multiple trials 

for the same offence “would arm Government with a potent weapon of oppression.” Stephens v. 

State, 806 S.W.2d 812, 816 (Tex. Crim. App. 1990) (citing United States v. Martin Linen Supply 

Co., 430 U.S. 564, 569 (1977)). The Fifth Amendment to the United States Constitution and 

Article I, Section 14 of the Texas Constitution prohibit double jeopardy and protect individuals 

from being tried twice for the same offense, possibly receiving double punishments. U.S.

CONST. amend. V, TEX. CONST. art. I, § 14; Albernaz v. United States, 450 U.S. 333, 343 (1981);

Illinois v. Vitale, 447 U.S. 410, 415 (1980); Stephens, 806 S.W.2d at 814–15. This protection is 

necessary to avoid subjecting a defendant “to embarrassment, expense and ordeal . . . [,]

compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the 

possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 

184, 187–88 (1957).

A multiple-punishments claim can arise in
17

(1) the lesser-included offense context, in which the same conduct is punished 

twice; once for the basic conduct, and a second time for that same conduct plus 

more (for example, attempted assault of Y and assault of Y; assault of X and 

aggravated assault of X)

Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006) (describing types of doublejeopardy claims). Unless a

separate act occurred (a circumstance which would remove our analysis outside of 

the double jeopardy realm), proof of the same or less than all the facts required to 

establish that a person committed indecency by contact would also necessarily 

establish indecency by exposure during the act.

Alberts v. State, 302 S.W.3d 495, 502 (Tex. App.—Texarkana 2009, no pet.).

It should be remembered that the State’s indictment alleged that the three charged 

offenses were committed on different dates. Thus, the State was not alleging that the indecency 

by exposure occurred on the same date as the indecency by contact. However, where the 

evidence “at trial shows that only one offense was committed,” the State is “not entitled to seek 

convictions for two offenses.” Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998). 

We now examine the record evidence.

Nora Mitchell testified that she obtained custody of the child victim in 2008. She 

testified that the child “said [Speights] stuck his penis in his butt, that he touched him in the 

private area, and that he showed him his penis and . . . played with it in front of him.” Mitchell 

recalled that the child victim indicated that “[Speights] came and took him out of his room and 

went into [Speights’] room[,]” where the child was anally assaulted. This was referred to by the 

parties as the “bedroom incident,” which gave rise to the count of aggravated sexual assault by 

“penetration of the anus of” the child. 
18

The child then told Mitchell that he was again assaulted “a few days later” when Speights 

“took [the child] into the bathroom and played with him while he was . . . playing with himself.” 

This was referred to by the parties as the “bathroom incident,” which gave rise to the count of 

indecency with a child by sexual contact where the defendant caused the child “to engage in 

sexual contact by causing the said [child] to touch the genitals o[f] the defendant.”10 During yet 

another incident, Mitchell testified that the child told her that Speights “put his hand in [the 

child’s] pants to see if he had wet his pull-up.” However, the count at issue alleged that Speights 

“intentionally or knowingly exposed his genitals, knowing that [the child] . . . was present.” 

Multiple convictions for sexual offenses that involve separate and distinct acts do not 

violate the Double Jeopardy Clause. See Huffman v. State, 267 S.W.3d 902, 905 (Tex. Crim. 

App. 2008); see also Gonzales v. State, 304 S.W.3d 838, 847 (Tex. Crim. App. 2010) (discussing 

Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999)). To establish a double-jeopardy 

claim, the evidence must show that the two offenses at issue necessarily arose from “one act 

which could be subject to two different interpretations.” Ochoa, 982 S.W.2d at 908. Exposure 

of Speights’ genitals would be necessarily subsumed within the counts alleging aggravated 

assault and indecency with a child by contact as alleged. Therefore, proof of a separate act, 

whereby Speights exposed himself to the child, was required. We find no such evidence in this 

record.

The child victim described the bedroom incident in detail. He testified that Speights 

“came in my bedroom,” “picked me up while I was asleep and he woke me up, and then he took 

 10The State argues that exposure is “not incident to and subsumed within the acts of penetration.” The facts here, 

and the indictment, suggest otherwise.
19

me out of my bedroom and then took me to his and then shut the door and locked it.” The child 

said that Speights “threw me down on the bed, and then he had pulled down my pants” and “put 

his private in my bottom.” The child said that he “felt like I was going to get crushed, but it hurt 

my back really bad.” He experienced pain in his bottom. 

Next, the victim stated that, on a separate occasion referred to as the bathroom incident, 

Speights touched his “private” and made him touch Speights’ “private.” The child also stated 

that Speights had touched his private “at [the child’s] last house when [he] lived there” several 

times, and that there was another time when Speights tried to get the child to do things he did not 

want to do. He later said that “[t]wo things happened,” but described an incident which occurred 

in another trailer “beside the dumpsters” when Speights “was forcing his hand down my pants, 

and I tried to stop him but he was too strong then. Finally, I got a pillow and put it in front of 

me, and then he stopped.” Dickenson also testified to the incident where Speights “forced his 

hand into [the child’s] pants.” 

Here, the record contains no testimony of a separate act of indecency with a child by 

exposure. There was testimony that Speights may have contacted the child’s private on separate 

occasions, but this evidence failed to establish that Speights had exposed himself during those 

times. Testimony that Speights attempted to get the child to “do things” he did not want to do 

was likewise insufficient to show exposure. The only evidence of exposure placed in front of the 

jury contains nothing suggesting it occurred as an act separate from the aggravated sexual assault 

alleged to have occurred in the bedroom incident or the indecency by contact alleged to have 

occurred in the bathroom incident. “[A] defendant cannot be convicted for a completed act of 
20

sexual assault and also for conduct that is demonstrably a part of the commission of the 

completed act.” Alberts, 302 S.W.3d at 502–03 (citing Patterson v. State, 96 S.W.3d 427, 432–

33 (Tex. App.—Austin 2002), aff’d, 152 S.W.3d 88, 89, 92 (Tex. Crim. App. 2004), but 

overruled on other grounds by Sledge v. State, 262 S.W.3d 492 (Tex. App.—Austin 2008, pet. 

ref’d)). Accordingly, we find that Speights’ conviction for indecency with a child by exposure 

violated his right to be free from double jeopardy.

Therefore, we reverse the trial court’s judgment finding Speights guilty of indecency with 

a child by exposure and render a judgment of acquittal with respect to that count. 

We affirm the trial court’s remaining judgments.

Josh R. Morriss, III

Chief Justice

CONCURRING OPINION

I agree with the result of the majority opinion, but I disagree with some of the analysis. 

I. Speedy-Trial Factors

A. Length of the Delay

I agree that the four-year delay from arrest to trial is lengthy and presumptively 

prejudicial, requiring us to examine the other factors.

B. Reasons for the Delay

The explanations offered by the State for the lengthy delays in this case include 

(1) changing public defense attorneys, (2) a request for a polygraph examination, (3) election of 
21

the district attorney as district judge, (3) lack of funds for visiting judges, and (4) busy dockets. 

These are not matters within the defendant’s control. I would find that this factor weighs against 

the State.

C. Assertion of the Right to a Speedy Trial

This is where many speedy-trial claims fail. Typically, the first or only motion filed by a 

defendant is a motion to dismiss, not a motion asserting the right to a speedy trial. That is often 

construed as a desire for the dismissal of the charges, not a request for a speedy trial. The typical 

did not occur in this case. After being incarcerated for almost two years, Speights filed a motion 

demanding a speedy trial in August 2010. No hearing was had on this motion until immediately 

before trial. However, the certificate of service attached to the motion for speedy trial averred 

that delivery was made to the Honorable Bobby Lockhart, who was the district attorney at the 

time, but later became the trial judge and remained the judge until his recusal. Thus, I cannot say 

that the trial court was unaware of the motion for speedy trial. 

Furthermore, I note that one week after the filing of the motion for speedy trial, an 

application for writ of habeas corpus and motion for reasonable bond was filed on August 19,

2010. The motion pointed out that Speights was still awaiting trial and was still “illegally” 

confined in jail. The motion was granted on the following day, a personal recognizance bond 

was set at $10,000.00, which was made, and Speights was released following an order reciting 

that the motion for reasonable bond had been heard. At the very least, the trial court was aware 

of the length of Speights’ confinement. 
22

The State focuses on the fact that the speedy-trial issue was brought to the trial court’s 

attention by way of a motion to dismiss and no action was taken until the day of trial, almost two 

years after the first motion was filed. Thus, because the speedy-trial motion was not presented to 

the court until the day of trial, the State concludes that this factor should weigh heavily against 

Speights. The State also argues that Speights’ failure to make another request for speedy trial 

after his release on bond suggests that his intent in filing it was to be released from jail, not to be 

tried on the charges in the State’s indictment. 

In Barker, the court noted that “a defendant has some responsibility to assert a speedy 

trial claim” but “that the right to a speedy trial is unique in its uncertainty as to when and under 

what circumstances it must be asserted or may be deemed waived.” Barker v. Wingo, 407 U.S. 

514, 529. In rejecting the application of a rigid test to determine the assertion of the right factor, 

because such tests are “insensitive to a right . . . deemed fundamental,” the United States

Supreme Court provided for a more flexible approach. 

The majority opinion cites a line of cases, including Henson v. State, 407 S.W.3d 764 

(Tex. Crim. App. 2013), to support the argument that a speedy trial motion must be presented to 

the trial court in a formal hearing and that the failure to do so prior to trial weighs against 

Speights. I disagree with the majority’s analysis of these cases.

Henson never filed a motion for a speedy trial, and the question was whether he could 

assert that right on appeal without preserving it. Very unremarkably, the Texas Court of 

Criminal Appeals held, just as many intermediate courts, including this one, that a defendant 

must preserve the issue for appeal. The Henson case had nothing to do with determining 
23

whether Henson had timely asserted his speedy-trial right in the trial court. Acknowledging that

the Henson case only addressed preservation of error, the majority then reviews Guevara v. 

State, 985 S.W.2d 590 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d), to support the notion 

that, even though a speedy-trial motion has been filed, it is not to be considered unless it is 

presented to the trial court. The Guevara case requires further analysis.

In Guevera, the defendant filed a pro se motion for speedy trial in his first case. The 

motion was never acted on, Guevara was re-indicted in another case, the original cause was 

dismissed, no speedy-trial motion was filed in the second case, and of course, no hearing was 

ever conducted. The holding was simply that Guevara waived the issue by failing to raise it in 

the trial court. Id. at 593.

These cases address error preservation; there is no doubt that Speights preserved the 

speedy-trial issue for appeal. The cases cited do not address the issue of whether a delay in 

presenting a motion for speedy trial is relevant in determining if the defendant has properly 

asserted that right.11 I would afford the substantive act of filing the motion for a speedy trial 

much greater weight than the more procedural act of a formal presentment of the motion. Here, 

because (1) the first motion for speedy trial requested a hearing, (2) the trial court granted a 

motion for reasonable bond discussing Speights’ lengthy “illegal” incarceration, and (3) the 

 11The majority opinion cites several other cases to support the statement that a delay in the “presentment” of a 

motion for speedy trial is relevant. These cases do not specifically address the issue of presentment. The Barker

case discusses whether the objection was seriously urged or merely a “purely pro forma objection.” Barker, 407 

U.S. at 529. The other cases address the timeliness of a motion for speedy trial, not presentment. Turner v. Estelle, 

515 F.2d 853, 857 (5th Cir. 1975) (defendant first asserted right to speedy trial nearly four years after indictmentweighed against him); Dragoo v. State, 96 S.W.3d 308, 314–15 (Tex. Crim. App. 2003) (defendant failed to assert 

right for three and one-half years, just before trial); Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992) 

(defendant first raised issue on day of trial); Orasco v. State, 827 S.W.2d 575, 577 (Tex. App—Fort Worth 1992, 

pet. ref’d) (defendant never asserted right to speedy trial—only dismissal). 
24

motion for speedy trial was actually delivered to the person who later became the trial judge, I 

would find that Speights asserted his right to a speedy trial. I would find that this factor weighs

in Speights’ favor. 

D. Prejudice

1. Pretrial Incarceration 

Speights was incarcerated 652 days on this offense awaiting trial and, thereafter, was 

required to report weekly to the Pretrial Services Office. The majority finds this to be oppressive 

pretrial incarceration. I agree.

2. Impairment of Defense

Speights avers that several witnesses, including the victim’s mother, the victim’s 

mother’s girlfriend, and the victim’s maternal grandmother, were unavailable by the time the 

trial occurred. His affidavit presented evidence that those witnesses might have presented 

material and relevant evidence. The Texas Court of Criminal Appeals has held that a defendant 

must exercise diligence in attempting to locate the witnesses and produce them for trial. Harris 

v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973). There is no evidence of the diligence 

used to procure the witnesses for trial. Without meeting that requirement, unavailability of the 

witnesses is not demonstrated. Therefore, we have no evidence that Speights’ defense was 

hampered. Had impairment of his defense been demonstrated in this case, I believe the result 

would have been different.12

 12I fail to see how the trial court or this Court can equate the prejudice from the delay to the possibility of a 

polygraph examination and determine that any prejudice was overcome by the benefit of taking a polygraph 

examination. If the delay prejudiced Speights by preventing him from presenting relevant and material testimony 

which he diligently sought, taking a polygraph examination would not ameliorate that prejudice. 
25

II. Balancing

 There are no exceptional reasons for the delays in this trial. For two years of the fouryear delay, Speights sat in jail and began to assert his right to a speedy trial. The excuses for the 

delay offered by the State were those that are inherent in trial and docket management, none of 

which was controlled by Speights. Nonetheless, Speights served 652 days in jail, before 

conviction. I believe that Speights properly asserted his right to a speedy trial. These factors, in 

my view, weigh against the State, but the most important one, the possibility that Speights’ 

defense at trial suffered, weighs against him. While this is an extremely close and difficult 

decision, on balance, I agree with the majority that the right to a speedy trial was not violated and 

concur in the judgment.

Jack Carter

Justice 

Date Submitted: September 12, 2013

Date Decided: March 26, 2014

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