## NO S

. 12

- 20

- 00173

- CR 12

- 20

- 00 174

- CR 12

- 20

- 00175

- CR 12

- 20

- 00176

- CR 12

- 20

- 0 0177

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DIST RICT
TYLER, TEXAS

RODNEY KEVIN WILLIAMS , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL S FROM T HE 262ND

JUDICIAL DISTRICT COURT

HARRIS COUNTY, TEXAS

MEMO RANDUM OPINION Rodney Kevin Williams appeals his convictions for aggravated sexu al assault of a child under fourteen years of age, possession with the intent to promote child pornography, and possession of child pornography. In his sole issue, Appellant argues that his Sixth Amendment right to a speedy trial was violated and that the trial court erred in denying his motion to dismiss.
We aff irm as modifie d in appellate cause numbers 12

- 20

- 0017 3

- CR and 12

- 20

- 00174

- CR. We
affirm in appellate cause numbers 12

- 20

- 00175

- CR, 12

- 20

- 00176

- CR, and 12

- 20

- 00177

- CR

.

B ACK GROUND Appellant was c harged by indictment with three separate charges of super aggravated sexual assault of a child less than six year s of age, all first degree felonies. 1 Appellant was also

1 See T EX

. P ENA L C ODE A N N

. § 22.021( a)(1)(B), (2)(B), ( e), (f)(1) (West 2019).2 charged with promotion of child pornography, a second degree felony, 2 and seventy cou n ts of possession of child pornography, all third degree felonies. 3 Appellant pleaded “guilty” to all charges. Th e trial court accepted Appellant’s pleas and found him guilty of the three separate charges of super aggravated sexual assault of a child les s than six years of age, possession with intent to promote child pornography, and possession of child pornography. The trial court assessed Appellant’s pun ishment at life imprisonment for each offense of super aggravated sexual assault of a child less tha n six years of age, twenty years of imprisonment for the promotion of child pornography charge, and ten years of im prisonment for possession of child pornog raphy. On June 27, 2018, the Texas Court of Criminal Appeals found that Appellant’s trial
counsel wa s deficient, and that Appellant’s guilty pleas were involuntary. See Ex parte
Williams , Nos. WR

- 82,421

- 02, W R

- 82 ,421

- 03, WR

- 82,421

- 04, WR

- 82,421

- 05, WR

- 82,421

- 06,
2018 WL 3134513, at *1 (Tex. Crim. App. June 27, 2018) (orig. proceeding) (op, not designate d for publication ) (per curiam). The Court granted relief to Appellant, set aside the judgments, and remanded the case for Appell ant to answer the charges as set out in the indictments. See id. The trial court was obligated to issue any necessary bench w arrant after the Court’s mandate issued.
See id. The trial court issued a bench warrant for Appellant on July 17, 2018, and appoi nted counsel for him on August 10, 2018. App ellant filed an amended motion to dismiss on September 6, 2019, and after a heari ng on September 2 7 , the trial court denied Appellant’s
amended motion to dismiss. On June 4, 2020, Appellant pleaded “guilty” to three charges of aggravated sexual assault

o f a child under fourteen years of age, 4 the charges having been reduced from supe r aggravated

sexua l assault of a child less than six years of age; possession with intent to promote child pornography, and one cou nt of possession of child pornography. 5 Ap pellant and his attorney signed various documents in connection with his guilty pl ea in each case, i ncluding a waiver of

2 See id

. § 43.26 (e) , (g) (West 2016).

3 See id

. § 43.26(a), (d) (West 2016).

4 See id

. § 22.021(a) (1) ( B), (2) (B), (e) (West 2019 ).

5 Regarding the seventy counts of possession of child pornography in the original indictment, the State abandoned all but one count of the indictment.3 constitutional rights, agreement to stipulate, judicial confession, and admonishments in whi ch he confessed, and admitted, that he comm itted each and every allegation contained in the indictments, and that he is guilt y of the offenses alleged. The trial court entered Appellant’s pleas of guilty and found him guilty of three charges of aggravated sexual assault of a child under fourteen ye ars of age, possession with intent to promote child pornography, and possession

o f child pornograph y. The trial court assessed Appellant’s punishment at fifty years of imprisonment for each of the three charges of aggravated sexual assault of a child under fourteen years of age, twenty years of imprisonment for the charge of possessio n with intent to p romote child pornography, and ten years of imprisonment for possession of child pornography. The trial
court orde red that Appellant’s sentences run concurrent ly. These appeals followed. 6

R IGHT TO S PEEDY T RIAL In his sole issue on appea l, Appellant argue s that the trial court erred in denying his amended motion to dismiss, thereby violating his Sixth Amendment righ t to a speedy trial. The essential ingredient of the Sixth Amendment’s speedy trial guarantee is “orderly expedition and

not mere speed.” U.S . v. Marion , 404 U.S. 307, 313, 92 S. Ct. 455, 459, 30 L. Ed. 2d 468 (1971) (Sixth Amendment right to speedy tria l would appear to guarantee criminal defendant t hat government will move with dispatch that is appropriate to assure him earl y and proper dispo sition of charges against him). Since 1972, United States Supreme Court precedent has required courts to analyze federal constitutional speedy trial claims “on a n ad hoc basis” by weighing and then balancing four factors: (1) length of t he delay; (2) reas on for the delay; (3) assertion of the right; and (4) prejudice to the accused. Barker v. Wingo , 407 U.S. 514, 5 30, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972). This balancing test requires weighing case by case
“the conduct of both t he prosecution and the defendant.” Id. No single factor is a “necessary or sufficient condition to the finding” of a speedy trial violation. Id. , 407 U.S. at 533, 92 S. Ct. at 2193; State v. Wei , 447 S.W.3d 549, 553 (Tex. App.

– Houston [14th Dist.] 2014, pet. ref’d). The related factors must be considered together with such other circumstances as may be relevant.
See Wei , 447 S.W.3 d at 553.

6 Appellant filed a “brief” and letter with this Court, which we construe as at temp ted supplemental appellate briefing. Because Appellant is represented by appellate counsel, who filed an appellant’s brief on his behalf, we do not consider any of the briefing in his “brief” or letter because h e is not entitled to hybrid representati on. S ee Marshall v. State , 210 S.W.3d 618, 620 n.1 (Tex. Crim. App. 2006); Scheanette v. State , 144 S.W.3d 503, 505 n.2 (Tex. Crim. App. 2004).4 In reviewing the trial court’s decision on Ap pellant’s speedy trial claim, we apply a
bifurcated standard of review

. See State v. Mu noz , 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). We review factual issues for abuse of discretion and review leg al issues de novo. Id. Because the trial court ruled agai nst Appellant on his amended motion to dismiss, we must presume the trial court resol ved any disputed fact issues in the State’s favor, and we are required to defer to these implied findings of fact that the record supports. See id. The length of the delay between an initial charge and the defendant’s demand for speedy

t rial acts as a tri ggering mechanism. See Zamorano v. State , 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) (en banc); Munoz , 991 S.W.2d at 821. Unless the delay is presumptively prejudicial,

cour ts need not examine the other three factors. Zamorano , 84 S.W.3 d at 648. Thus, an y speedy trial analysis depends first upon whether the delay is more than “ordinary”; if so, the longer the delay beyond that which is ordinary, the more prejudicial that dela y is to the defendant. Gonzalez v. State , 435 S.W.3d 801, 809 (Tex. Crim. App. 2 014); Zamorano , 84 S.W.3d at 649. In his brief, Appellant contends that the calculation of the length of delay b egins on the date of his arrest, July 18, 2009, to the date of the hearing on the amended motion to dismiss, September 27, 20 19. He argues tha t this ten

- year period is presumptively prejudicial. In response, the State contends that Appellant’s calculatio n ignores that the speedy trial right detaches upon conviction an d other precedent that exclude s pre
- demand delay. We agree.
In Betterman v. M ontana , the United States Supreme Court found that the constitutional right to a speedy trial attaches when a def endant is arrested or formally accused. Betterman v.
Montana , 578 U.S. 437, 441, 136 S. Ct. 1609, 1613, 194 L. Ed. 2d 723 (2 016). However, the speedy trial right loses force upon conviction because the Speedy Trial Clause guarantees “the accused” the righ t to a speedy “trial.” See id. , 578 U.S. at 442

- 43, 136 S. Ct. at 1 614. Thus, the right to a speedy trial detaches upon conv iction. See id

. In other words, the Sixth Amendment speedy trial right does not extend beyond conviction. See id. , 578 U.S. at 448, 136 S. Ct. at
1618. However, the Supreme Court stated that it did not “decide whether the right reattaches upon renewed p rosecution followi ng a defendant’s successful appeal, when he again enjoys the presumption of innocence.” See id. , 578 U.S. at 44 1, n.2, 136 S. Ct. at 1613. The Court of Criminal Appeals answered that question in Soffar v. State , holding that the defenda nt’s claim
that th e twenty

- five years between his first trial and retrial is presumptively prejudicial amounts5 to an assertion tha t he should have been prosecuted while incarcerated pursuant to a

presump tively valid conviction. See Soffar v. State , No. AP

- 75,363, 2009 WL 3 839012, at *39 (Tex. Crim. App. Nov. 18, 2009) (op., not designated for publication) (per curiam). The Court
fo und this claim to be illogical and stated that any effort to retry defendant while his appeal and post

- conviction proceedings were underway woul d have run afoul of the Double Jeopardy
Clause. See id. Further, the def endant’s claim that ineffective counse l at his first trial ultimately resulted in the denial of his right to a speedy trial was without merit. See id. The Court s tated that the
def endant had not shown that the State in any way intended to deprive him of hi s right to a speedy trial when his f irst trial attorneys were appointed. See id. According to the Court, following the defendant’s logic would undoubtedly lead to an absurd resul t

— an individual whose conviction is later reversed may be immune from re

- pros ecution based on the denial of
the right to a speedy trial. See id. The Court found that such a result would undermine the policy interests that have been pres erved by the Supre me Court’s interpretation of the Speedy
Trial Clause

— society’s interest in pros ecuting persons accused of crimes , “rather than granting them immunization because of legal error at a previous trial” and making it more probable that appella te courts will ove rturn convictions when necessary. See id. The Court concluded that the speedy t rial clock began to run, at the earliest, on the date that the defendant’s conviction and
sentence were reversed. See id. Here, Appellant was arrested on July 18, 2009, ple aded “guilty” to three separate charges of super aggravated sexual assault of a ch ild less than six years of age , possession with intent to promote child pornography, and possession of child pornography, and was convicted on April 5,
2010

. O n June 27, 2018 , t he Texas Court of Criminal Appeals found that Appellant’s trial counsel was deficient, and that A ppellant’s guilty pleas were involuntary , thereby reversing his
conviction and sentence. See Ex parte Williams , 2018 WL 3134513, at *1. Pursuant to
Better man and Soffar , we will exclude the time before the June 27, 2018, reversal of Appell ant’s
conviction and senten ce in any length of delay analysis. See Betterman , 578 U.S. at 448, 136 S. Ct. 1618; Soffar , 2009 WL 3839012, at *39; but se e Emery v. State , 8 81 S.W.2d 702, 708 (Tex. Crim. App. 1994) (finding eight and one

- half years between de fendant’s initial indictme nt and second trial presumptively prejudicial). Therefore, the speedy trial clock began to run, at the6 earliest, on the date that Appellant’s c onviction and sentenced were reversed, or June 27, 2018.
See Betterman , 578 U.S. at 448 , 136 S. Ct. 1618; Soffar , 2009 WL 3839012, at *39. Although there is an approximately thirteen month delay from the reversal of his
conviction and t he hearing on his a mended motion to dismiss, Appellant did not argue in his amended motion, at the hearing , or in his appellate bri ef that this time period is presumptively prejudicial. We conclude that the time period here is not presumptively prejudicia l, and thus, we
hav e no need to consider the remaining Barker factors. See Soffar
, 2009 WL 3839012, at *39. Accordingly, the trial court did not err in denying Appellant’s amended motion to dismiss. Appellant’s sole issue is overruled.

E RROR IN J UDGMENTS In reviewing the r ecord, we note that o n two of the original charges of super aggravated assault of a child less than six years o f age, the plea documents signed by Appellant showed that the State reduced these charges to aggravated sexual assault of a ch ild under fourteen years of

age. However , the June 4, 2020, judgments of these two cases still showed Appellant’s
convictions as s uper aggravated sexual assault of a child less than six years of age instead of the agreed reduced charges of aggravated sexu al assault of a chi ld under fourteen year s of age. We have the authority to reform a judgment to make the record speak the truth. Ingram v.
State , 261 S.W.3d 749, 754 (Tex. App.

— T yler 2008, no pet.); see also Thompson v. State , 108 S.W.3d 287, 290 (Tex. C rim. App. 2003). T he Texas Rules of Appe llate Procedure expressly authorize us to modify the judgment of the trial court. T EX

. R

. A PP

. P. 43.2. Further, o ur authority to reform incorrect judgments is not dependent on the request of any party. See Rhote n v. State , 299 S.W .3d 349, 356 (Tex. App.

— T exarkana 2009, no pet.). Accordingly, we modify the judgment s in appellate cause numbe r 12

- 20

- 00173

- CR (trial
court number 1224794) and appellate cause number 12

- 20

- 00174

- CR (trial court number 1225681) to reflec t th at the con victi ons in both cases were “aggravated sexual assault of a child under fourteen years of age.”

D ISPOSITION Havi ng overruled Appellant’s sole issue denying his amended motion to dismiss, we modify the judgments of the trial court in appella te cause number 12

- 20

- 00173

- CR (trial court7 number 1224794) and appellate cause number 12

- 20

- 00174

- CR (trial court number 122568 1) , and affirm those judgments as modified

. We also affirm the remaining judgments of the trial

cour t.
B RIAN H OYLE Justice
Opi nion delivered Dece mber 21, 2021. Panel consisted of Worthe n, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

DECEMBER 2 1 , 2021

NO. 12

- 20

- 0017 3

- CR

RODNEY KEVIN WILLIAMS , Appellant V. THE STAT E O F TEXAS , Appellee

Appeal from the 262nd Di strict Court
of Harris County, Texas (Tr.Ct.No. 1224794 ) THIS CAUSE came to be heard on the appellate record and the brief s filed herein, and the same being considered, it is the opinion of this court that the j udgment of the
court below should be mod ifi ed and as modified, affirmed.
I t is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modifie d to reflect th at the con viction wa s “aggravated sexual assault of a
child under fourteen years of age ” ; in all oth er respects th e judgment of the trial court is
affirmed ; and that this decision be certified to the court below for observance

. Brian Hoyle , Justice

. Panel consisted of Worthen , C.J., Hoyle, J., and Neeley, J.

## COURT OF APPEAL S

TWELFTH COURT OF APPEAL S DISTRICT OF TEXAS

JUDGMENT

DECEMBER 2 1 , 2021

NO. 12

- 20

- 0017 4

- CR

RODNEY KEVIN WILLIAMS , Appellant V. THE STAT E OF TEXAS , Appellee

Appeal from the 262nd District Court
of Harris County, Texas (Tr.Ct.No. 122 5681 )

THIS CAU SE came to be heard on the appellate rec ord and the brief s filed herein, and the same being considered, it is the opinion of this court that the judgment of the
court below should be modified and as mod ified, affirmed.
I t is therefore ORDERED, ADJUDGED an d DECREED that the judgmen t of the court below be modifie d to reflect th at the con viction was “aggravated sexual assault of a child under fourteen years of age ” ; in all other respects the judgment of th e trial court is
affirmed ; and that this decision be c ertified to the court below for observan ce

. Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

DECEMBER 2 1 , 2021

NO. 12

- 20

- 0017 5

- CR

RODNEY KEVI N WILLIAM S , Appellant V. THE STAT E OF TE XAS , Appellee

Appeal from the 262nd District Court
of Harris County, Texas (Tr.Ct.No. 122 4792 ) THIS CAUSE came to be heard on the appellate record and brief s f iled herein, and the same being considered, it is the opinion o f this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed , and that this decision be ce rtified to the court below
for observance. Brian Hoyle , Justice

. Panel consisted of Worthen, C .J., Hoyle, J., and Neeley, J.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

DECEMBER 2 1 , 2021

NO. 12

- 20

- 0017 6

- CR

RODNEY KEVIN WILLIAMS , Appellant V. THE STAT E OF TEXAS , Appellee

Appeal fr om the 262nd District Court
of Harris County, Texas (Tr.Ct.No. 122 5582101620 ) THIS CAUSE came to be heard on the appellate record and brief s filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgm ent. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed , and that this decision be certified to the court below
for observance.
Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyl e, J., an d Neeley, J.

## COURT OF APPE ALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

DECEMBER 2 1 , 2021

NO. 12

- 20

- 0017 7

- CR

RODNEY KEVIN WILLIAMS , Appellant V. THE STAT E OF TEXAS , Appel lee

Appeal from the 262nd District Court
of Harris C ounty, Te xas (Tr.Ct.No. 12 31935 )

THIS C AUSE came to be heard on the appellate record and brief s filed herein, and the same being considered, it is the opinion of this court that there was no error in t he judgment. It is therefore ORDERED, ADJUDGED and DE CREED tha t the judgment of
the court bel ow be in all things affirmed , and that this decision be certified to the court below
for observance. Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyle , J., and Neeley, J.