## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

NO. P D-0040-10
JOHN LANDON NEWMAN, A ppellan t

v. THE S TATE O F TEXAS
ON STATE ’S P ETIT ION F OR DISCRETIONARY REVIEW F ROM THE FOUR TEE NTH COURT OF A P P EALS

HARRIS COUNTY
H E R V E Y , J., delivered the opinion of the Court in w hich K E L L E R , P .J., M E Y E R S , W O M A C K , J O H N S O N , K E A S L E R and C O C H R A N , JJ., joined. P R I C E , J., dissented .

O P I N I O N
Ba sed on fe dera l constituti onal speedy -trial g rounds, appe llant filed an unswor n motion to dismiss his intox ication-a ssault case . Appellant claimed in t h i s unsworn motion that his Six th Amendment fede ral constitutional rig ht to a speedy trial had been violated beca u s e o f an approximately eig ht-y ear delay since the filing of his intox ication- a s s a u lt in d ic tme nt. The trial court

1

1 The analy sis of appellant’ s speedy -trial claim would require an examination o f the four Barker v. W

ingo fac tors: 1) leng th of delay , 2) rea sons for the delay , 3) the defe ndant’s asser tion of his right to a spe edy

trial, and 4) pr ejudice. See Barker v . W ingo , 407 U.S. 514, 530 (1972).Newma n-2 signe d an order deny ing appellant’ s motion to dismiss

. This order indicates that the trial court 2 denied this motion afte r a hear ing. There is no repor ter’s rec ord o f this hear ing in the appellate

rec ord. I n appellant’ s direc t appea l, the court of appea ls declined to c onsider any fac tual asser tions contained in a

ppellant’s unsworn motion to dismiss

. After also noting the absenc e of a repor ter’s 3

rec ord from any hear ing in the trial court on this motion and afte r cautioning “pra ctitioners reg arding the importance of developing a rec ord,” the court of appea ls never theless decide d that the “spar se”

rec ord that appellant prese nted was sufficie nt for it to consider the Barker fac tors even though this “spar se” rec ord is silent on the second and fourth Barker fac tors. And, in overturning the trial 4 court’s ruling deny ing appellant’ s unsworn motion to dismiss , the court of appea ls also decide d that this “spar se” rec ord was sufficie nt to show that appellant’ s speedy -trial rig ht was violated. Having 5 exercised our discretionar y authority to revie w this decision, we decide , as a matter of state law, that 6

2 Appellant subsequently pled g uilty to the intox ication-a ssault indictment pursuant to a pleabarg ain that re serve d his right to appe al the trial c ourt’s rulingdenying his motion to dismi ss.

3 See Newman v. State , No

. 1 4 -08-00568- CR, slip order (Tex.App.–Houston [14 Dist.] , t h October 8, 2009) (not desig nated for publication) (deny ing appellant’ s motion to supplement rec ord with appellant’ s aff

idavit swea

ring to the truth of the alleg ations contained in his motion to dismiss ).
4 See Newman v. State , 303 S.W .3d 10, 13 (Tex.App.–Houston [14 dist.] 2009) (dec iding that t h the “spar se” rec ord, consisting of “either cer tified or file-stampe d copies from the court’s file or the District Clerk’s office,” was suff icient for the court of appea ls to consider appellant’s speedy trial claim “de spite appellant’s f ailure to pre sent testimonial evidence supporting this appe al”)

. 5 See Newman , 303 S.W .3d at 13-16 (dec iding that appellant’ s speedy -trial rig ht was violated based on e x amination of Barker fac tors).
6 The g rounds upon which we g rante d discretionar y revie w state:Newma n-3 appellant failed to sustain his burden to prese nt a sufficie nt rec ord showing a violation of his fede ral constitutional right to a spe edy trial. I nitially , we rec og nize the g ener al rule that “an unsworn motion does not, by itself, prese nt evidenc e upon which relief can be g rante d.” See W hitehead v. State , 130 S.W .3d 866, 873 (Tex.Cr.App. 2004). We further note that the L eg islature has not modified this rule with respe ct to motions t o dismiss for spe edy -trial violations. See id

. There fore , the court of appea ls w ould have

err ed to consider

the fac tual asser

tions in appellant’ s unsworn speedy -trial motion in resolving his speedy trial claim. The State arg ues that “the rec ord in this case is not proper ly develope d in order to allow the
court of appea ls or this Co u rt t o ru l e on the merits of appellant’ s speedy -trial claim” beca use appellant failed to prese nt a rec ord of any hear ing that may have occur red on his motion to dismiss and, thus, we cann o t k n o w what evidenc e or arg uments wer e prese nted at any such hear ing. The

rec ord that appellant prese nted indicates that he filed his motion to dismiss his intox ication-a ssault

case on J une 9, 2008. On J une 23, 2008, appellant filed a motion entitled, “Motion For Court Reporter To Record Voir Dire, Opening & Closing Arg uments.” The body of this motion indicates that appel l an t re q u es t ed the trial court “to instruct the Offic ial Court Reporter to take down in shorthand or by

any other method of r ecor ding a ll of the following : a ll pretrial hea ring s, the entire voir dire, all opening st at em en t s , testimony of all witnesses, all objections and the court’s ruling

The Four teenth Court of Appea ls err ed in ruling on the merits of th e ap p el l an t’s speedy trial claim, based solely upon the appellant’ s unsworn speedy trial motion and the documents a ttached to that motion. The Four teenth Court of Appea ls err ed in holding that a speedy trial motion is “selfproving .”Newma n-4 there on, all bench confe renc es, all communications betwee n the court and jury , final arg uments, &
any testimony or objections made outside the prese nce of the jury .” On the same day , the trial court signe d an order g ranting the “Motion for Court Report [si c] to Record Voir Dire, Opening & Closing Statements.” On J une 26, 2008, the trial court signe d the order denying appellant’ s motion to dismiss

. This order indicates that this motion was denied afte r a hear ing. The trial court’s docket sheet also

seems to indicat e that this motion was denied afte r some ty pe of a hear ing as the docket sheet indicates that the State, a

ppellant with counsel, a

nd possibly

the cour t reporte r we re pr esent in t he trial court on J une 26, 2008. The rec ord appellant prese nted, howeve r, contains no repor ter’s rec ord of any hear ing that may

have oc curr ed on June 26, 2008. This recor d also does not show whe ther appellant objected in the event that the court repor ter was not prese nt to transcr ibe the J une 26, 2008 hear ing. There also is no designation of appellate record indicating that appellant ever requeste d

7 the court repor

ter to prep ar e a t ra nscription of the J une 26, 2008 hear ing. See T E X
. R. A P P
. P. 34.6(b)( 1) (“A t or befor e the time for perf ecting the appea l, the appellant must reque st in writing that the officia l repor

ter prepa re the repor

ter’s rec ord.”)

. Nor has appellant attempted to supplement the

rec ord with a re porter’ s rec ord of a J une 26, 2008 hea

ring

. See T E X . R. A P P . P. 34.6(d). We decide that appellant has failed to prese n t a rec ord demonstrating that the trial court’s decision shoul d be overturned. Wit h appellant having had a hear ing, having lost in the t rial court

on his spe edy -trial claim, and then having prese nted no rec ord at all of a June 26, 2008 hear ing on

7 We further note t hat “ [ w] h i l e t h e rec ord m ay be suppl emented under the appellate rules if something has been omitted, the supplementation rules cannot be used to cre ate new evidenc e.” See W hitehead , 130 S.W .3d at 872 (footnote omitted).Newma n-5 this claim, appellant should also have lost on direc t appea l. See Amador v. State , 221 S.W .3d 666, 675 (Tex.Cr.App. 2007) (“I t was, howeve r, appellant’ s burden to bring forwa rd a rec ord on appea l sufficie nt to show that the trial court err ed in his ruling on the motion to suppress.”) ; W ord v. State , 206 S.W .3d 646, 651-52 (Tex.Cr.App. 2006) (“I t is usually the appea ling party ’s burden to prese nt

a rec ord showing proper ly prese rved, reve rsible err or.”) ; Zamorano v. State , 84 S.W .3d 643, 648 (Tex.Cr.App. 2002) (whe n a defe ndant loses on a speedy -trial motion, the appellate court presumes that the trial cour

t resolved a

ny disputed fac t issues in the St ate’ s favor ). T h e judgme nt of the court of appea ls is reve rsed, and the judgme nt of the trial court i s aff irmed.

Her vey , J

.

Deliver ed: Fe bruar

y 9, 2011 Publis h