## COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02

- 14

- 00172

- CR

RICHARD FREDRICK DEN STITT APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 97TH DISTRI CT COURT OF MONTAGUE COUNTY

TRIAL COURT NO. 2011

- 0174M

- CR

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### M EMORANDUM OPINION 1

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A jury convicted Appellant Richard Fredrick Denstitt of aggravated sexual

assault of a disabled person and assessed his punishment at sixty years ’

confinement. The trial court sentenced him accordingly.

Appellant brings three issues on appeal, challenging the sufficiency of the

evidence that C omplainant was a disabled person and arguing that the trial court

1 See Tex. R. App. P. 47.4.2 reversibly erred by denying him a speedy trial under both federal and state

constitutional guarantees. Because the evide nce is sufficient to support the

jury ’ s verdict and because the record reflects no denial of Appellant ’ s right to a

speedy trial, we affirm the trial court ’ s judgment.

Sufficiency of the Evidence of Disability

In Appellant’s first issue, he contends that t he evidence is insufficient to

prove that Complainant was “ disabled ” under the statute. In our due

- process

review of the sufficiency of the evidence to support a conviction, we view all of

the evidence in the light most favorable to the verdict to determi ne whether any

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. 2

The term “ disabled individual ” as used in the aggravated sexual assault

statute, section 22.021 of the penal code, has the meaning assign ed by section

22.04(c) (3) of the penal code. 3 Section 22.04(c)(3) currently defines a disabled

individual as “ a person older than 14 years of age who by reason of age or

physical or mental disease, defect, or injury is substantially unable to protect

hims elf from harm or to provide food, shelter, or medical care for himself. ” 4

2 Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 ( 1979);

Dobbs v. State , 434 S.W.3d 166, 170 (Tex. Crim. App. 2014)

.

3 Tex. Penal Code Ann. §§ 22.021(a)(2)(C), (b)(2), 22.04(c)(3) (West S upp.

201 4 ).

4 Id. § 22.04(c)(3).3 A forensic interviewer who had interviewed Complainant testified that she

believed Complainant ’ s cognitive level was between six and ten years old.

Although the forensic interviewer had reviewed no documents showing

Complainant’s mental age, she surmised it based on the way Complainant

spelled her name, her fascination with various items in the interview room, her

child

- like use of terminology describing adult genitals ( t he term she used to

describe the male genitalia was “ peanuts, ” and her term for the female private

part was “ a little girl ” )

, and her mental processing of questions “ very literally ” as a

child would do. The forensic interviewer testified that she found Complainant to

be a “ mentally disabled individual ” who was dependent upon other people to

make all important decisions for her and who would not be able to appr a ise the

nature of or understand sexual acts.

Complainant testified that she was twenty

- six years old, lived in a group

home in Houston

, had graduated from high school

, and was planning to go to

college to become a dog groomer so she could groom her family ’ s dogs for

free

. She testified that she had seizures on occasion. At the time of the

assault, she had live d alone in a trailer park

, and her grandfather lived across

the street ; he had died before the trial

. She admitted that she had had

voluntary sexual intercourse with Appellant more than once during their first

evening together and that she took birth cont rol pills. Her grandfather later told

her that he did n o t like Appellant and to stay away from Appellant. She testified

that w hen she had told Appellant that she could n o t have sex with him anymore4 because her grandfather did n o t like him, they had spent hours having sex

anyway, although she did n o t want to.

C omplainant ’ s uncle testified that he had known her all her life and that

she had been disabled and unable to live independently her entire life. He also

testified that Complainant had been declared mentally disabled by the Social

Security Administration and was receiving disability payments.

The jury saw a video recording of the forensic interview and observed

and listened to C omplainant testify at trial.

Applying the appropriate standard of revie w, we hold that there was

sufficient evidence from which a jury could have found beyond a reasonable

doubt that Complainant was a disabled person as contemplated by s ection

22.04 (c) (3). We overrule Appellant ’ s first issue.

Speedy Trial

In his second and third issues, Appellant contends that the trial court erred

by denying his right to a speedy trial under the Sixth Amendment to the United

States Constitution and Article I, S ection 10 of the Texas Constitution. Nineteen

months before trial and while repr esented by counsel

, Appellant filed a pro se

Motion to Dismiss (Speedy Trial Motion)

. The trial court never heard or ruled

upon said motion.

In 2013, the Texas Court of Criminal Appeals clarified that the right to a

speedy trial must be preserved:5 The pr eservation requirement is that “ ( u ) nless a

litigant

. . . moves to avail himself of a procedural benefit

. . . no such

benefit inures

. . . . Because the judge has no independent duty in

this regard, his failure

. . . isn ’ t error about which complaint mig ht

later be made on appeal. ” In order to preserve error for appellate

review, a defendant must make a timely request, objection, or

motion in the trial court (regardless of whether or not the error

complained of is constitutional). This rule applies to a ll but the most

fundamental rights. The only exceptions are two relatively small

categories of error: rights which are waivable only and denials of

absolute, systemic requirements. Such errors may be raised for the

first time on appeal. Neither this co urt nor the Supreme Court has

ever clearly held that the right to a speedy trial requires preservation

or cannot require preservation.

In Barker , the Supreme Court distinguished the speedy

- trial

right from typical fundamental rights, as to which the State bears the

entire burden of proving that the defendant made a knowing and

voluntary waiver. “ We do not depart from our holdings in other

cases concerning the waiver of fundamental rights, in which we have

placed the entire responsibility on the prosecutio n to show that the

claimed waiver was knowingly and voluntarily made. Such cases

have involved rights which must be exercised or waived at a specific

time or under clearly identifiable circumstances

. . . .”

Contrary to the appellant ’ s assertion, Barker did not reject the

notion that a defendant may be required to preserve a speedy

- trial

claim. It stated that the defendant does bear some responsibility for

asserting the right. What Barker actually rejected was a very

specific “ demand

- waiver ” rule: one in which a defendant waives his

right to a speedy trial as to any period before he demanded that his

right be honored.

Just as Barker does not specifically address the issue, our

own case law is far from consistent. We have never held that a

speedy

- trial right is waivable

- only or systemic in nature. However,

before Marin , we delivered many opinions that ignored the issue of

preservation entirely and, in some cases, held that the defendant

had not waived his rights. We did not explain if or why the right was

waivable only rather than subject to the more typical rules of

preservation. Further complicating matters, in recent cases, we

have held that the speedy

- t rial right must be preserved.6 Unfortunately, these recent opinions do not offer any justificati on for

our change of course nor do they cite authority.

We are persuaded that the preservation requirements do

apply to speedy

- trial claims for several reasons. The vast majority of

errors must be preserved. It is informative to look at the few rights

t hat warrant an exception to this rule. Waivable

- only rights include

the right to assistance of counsel, trial by jury, and a statutorily

mandated right that appointed counsel have ten days before trial to

prepare. Absolute, systemic requirements include personal

jurisdiction, subject

- matter jurisdiction, and a penal statute ’ s being in

compliance with the separation of powers section of our state

constitution.

One notable difference between these rights and the right to a

speedy trial is that the other rig hts 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 upon 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 upon a

speedy tr ial 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.

Other policies are persuasive as well. If the appellant brings

his complaint to the trial court first , the trial court can grant the

appropriate remedy before the expense and other burdens of a trial

(and an appeal) have been incurred.

Further, a requirement of preservation allows the trial court to

develop the record sufficiently for a Barker analysis. At least two of

the Barker factors (the reason for delay and the prejudice to the

accused) are fact

- specific inquiries and may not be readily apparent

from the trial record. A requirement that the appellant assert his

complaint at the trial level enables the court to hold a hearing and

develop this record so that the appellate courts may more accurately

assess the claim.7 Our conclusion is strengthened by the fact that every court of

appeals to consider the issue has upheld a preservation

requirement. 5

In t he case now before this court, Appellant ’ s pro se motion is styled

“ Motion to Dismiss Speedy Trial. ” Appellant never requested a hearing on his

motion and never presented his motion to the trial court. Nor did he request a

trial. Rather his motion appea rs to complain of tampering with official documents

and conspiracy and to request dismissal of his case for failure to conduct a

speedy trial. We hold that Appellant has not satisfied the preservation

requirements enunciated in Henson

. 6 We therefore over rule his second and third

issues.

Conclusion

Having overruled Appellant ’ s three issues, we affirm the trial court ’ s

judgment.

5 Henson v. State

, 407 S.W.3d 764, 767

– 69 (Tex. Crim. App. 2013)

(citations omitted)

, cert. denied , 134 S. Ct. 934 (2014)

.

6 See id.8 /s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2 (b)

DELIVERED: July 2, 2015