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

NO. 03-13-00505- CR

Rex Allen Stockton, Appellant

v. The State of Texas, App ellee

F ROM TH E CO UNTY COURT AT LAW NO . 4 O F TRAVIS CO UNTY NO. D-1 -DC- 12- 2049 26, H ONO RAB LE MI KE DENTON, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Rex Allen Stockton g uilty of assault with family violence, and the trial court assessed a punishment of three y ear s in prison. See Tex. Penal Code § 22.01(b)( 2)(A)

. Appellant conte nds he wa s denied his rig ht to a speedy trial, that his attorney provided ineffec tive assistance by failing to obtain a hea ring on his pro se motions for re lease beca use of de lay

and for speedy trial, that his Four

th Amendment rig hts wer e violated by the denial of his reque st for persona l bond, and that the trial court err ed by allowing a police office r to rea d from the victim’s statement. We will affirm the judg ment.

BACK GR OUND

On September 19, 2012, appellant’ s wife called 911 complaining that appellant had assaulted her. She asser

ted that she was packing to leave their home. She said that they arg ued and that appellant hit her with a half-f ull beer can and punched her in the arm. One of the deputy sheriff swho responde d testified that he noticed a red mark wher e appellant’ s wife said appellant hit her, and

he took photogr aphs that wer e shown to the jury

. At trial, appellant admitted arg uing with his wife but denied throwing a beer can at or t o u ch i n g h er t h at night. Although he had previously been convicted of assaulting his wife, he asser ted that he was innocent of those assaults but had pleade d g uilty to end those ca ses without a trial. He admitted that, while under a prote ctive orde r limiti ng his contac t with his wife befor e trial, he wrote her sever al letters and calle d h er 8 8 7 times over ten months, once 30 times in a day

. DISCUSSIO N Appellan t’s r ight to a speedy-tr ial w as not violated.

Be fore addres s i n g t he merits of appellant’ s speedy -trial complaint, we note that the issue was not proper ly prese rved. The trial court never expressly ruled o n ap p el l an t ’s motion—in part, possibly , beca use he filed it pro se while repr esente d by co unsel. Robinson v. State , 24 0 S.W .3d 919, 922 (Tex. Crim. App. 2007) (“a defe ndant has no rig ht to hy brid repr esenta tion

. . . [and] a trial court is fre e to disreg ard any pro se motions prese nted by a defe ndant who is repr esented by counsel” ). The issue was not prese rved by a proper motion or a trial-cour t ruling

. See Tex. R. App. P . 33.1(a)

.

Even if the issue wer e proper ly prese rved, the asser ted delay in a

ppellant’s trial did not reach t h e threshold g ener ally considere d “pre sumptively prejudicia l.” See Doggett v. United States , 505 U.S. 647, 652 n. 1 (1992); see also Cantu v. State , 253 S.W .3d 273, 280-81 (Tex. Crim. App. 2008). There is no set time period that trig g ers the analy sis, Cantu , 253 S.W .3d at 281, but a delay approa ching a y ear is considere d enoug h to trig g er it. Doggett , 505 U.S. at 652, n.1; Dragoo

2v. St a t e , 9 6 S.W .3d 308, 314 (Tex. Crim. App. 2003). Appellant was convicted slightly less than

ten months afte r he was arr ested, and slightly less than eig ht months afte r he was indicted. We are not persuade d that this ti me per iod is significa nt enoug h to be pre sumptively prejudicia l. Be cause there is no set time period defining when a trial must occur , howeve r, we will apply the four- fac tor test for alleg ed viol at i o n s o f t h e ri g ht to a speedy trial that assesses (1) the leng th of the delay , (2) the rea son for the delay , (3) whether and how the defe ndant asser ted his rig ht to a speedy trial, and (4) whether the defendant suffere d prejudice as a r esult of the dela y . Cantu , 253 S.W .3d at 280-81; see also Barke r v. W ingo , 407 U.S. 514, 530 (1972). “While the State has the burden of justify ing the leng th of delay , the defe ndant has the burden of proving the asser tion of t he rig ht and showing prejudice .” Cantu , 253 S.W .3d at 280 (footnotes omitted). We weig h t h e streng th of eac h fac tor and then balanc e the fac tors in light of rele vant circ umstances, including the conduct of all parties. Id

. We will dismiss the char g ing instrument with prejudice only upon finding that the def

endant’ s actua l and asser

ted intere st in a speedy

trial has bee n infring ed. Id . at 281. Be cause there was no hear ing on the speedy -trial motion, the rec ord is sparse . Her e

are some eve nts drawn f

rom the cle rk’s re cord: September 19, 2012 appellant a rre sted for a ssault and jailed November

20, 2012 appellant indicted November

27, 2012 notice of indictment sent Marc h 1, 2013 appellant’ s attorney files motion for discover y Marc h 29, 2013 appellant f iles pro se motion for re lease beca use of de lay appellant’ s mother sends letter to trial court complaining that appellant ha s been in jail without g oing to c ourt

3April 3, 2013 appellant f iles pro se motion for spee dy trial April 17, 2013 appellant f iles motion t o remove counsel April 29, 2013 appellant is ar raig ned with new a

ppointed counsel May 28, 2013 appellant is re lease d on bond J uly 10, 2013 court orde rs appe llant arre sted J uly 15-18, 2013 trial Appellant’s main complaint focuse s on his first seven months of incar cer ation. The State does not offe r any explanation for the period of appar ent inactivity in the case , but there is no indication that the State eng ag ed in delay tactics. Most critically , howeve r, appellant made no showing of how he wa s prejudice d by the “dela y .” The speedy -trial protec tion is intended to (1) preve nt oppressive pretria l incar cer ation, (2) minimiz e the a ccuse d’s anx iety , and (3) limit the possibilit y that the ac cused’ s defe nse will be impaired. Cantu , 253 S.W .3d at 285. Of t h es e t y p es o f prejudice , the l ast is potentially the m ost serious “bec ause the inability of a defe ndant adequa tely to prepa

re his ca s e s k ew s the fairne ss of the entire sy stem.” Id

. Appellant made g ener al complaints about the leng th of his incar cer ation and anxiety , but nothing specific

. His wife testified t h at h e h ad lost his job befor e he assaulted her, so the j ob loss was not a result of any delay

. Appellant complains that he was unable t o help his counsel g et witnesses, but he did not demonstra te how those witnesses would have testified or helped his def

ense. We conclude that the rec ord does not show that appellant prese rved his complaint or that his speedy -trial complaint wa s meritorious.

4Appellan t did n ot re ceive inef fective assistance of counsel

. Appellant contends that h is first appointed counsel provided ineffe ctive assistance beca use she did not obtain a hear ing on either his motion for re l ea s e beca use of delay or his motion for speedy trial. He also complains that she failed to inve stiga te enoug h, to have a fac e-tofac e discussion of trial stra teg y with him, and to keep him informed. To demonstrate ineffe ctive assistance of counsel, a defe ndant must prove by a preponde ranc e of the evidenc e that (1) counsel’s repr esenta tion fell below an objective standard of

rea sonablene ss under preva iling p r o f e s s io nal norms and (2) the defic ient perf ormanc e prejudice d the defe nse. Strickland v. W

ashington , 466 U.S. 668, 687-88 (1984); Salinas v. State , 163 S.W .3d 734, 740 (Tex. Crim. App. 2005). An acc used is not entitled to entirely err orless repr esenta tion, and we look to the totality of the repr ese ntation in g aug ing the adequa cy of counsel’s perf ormanc e. Frangias

v. State , 392 S.W .3d 642, 653 (Tex. Crim. App. 2013). But even a single instance of counsel’s err or

can rise to the level of defic ient perf ormanc e “if t h e er ro r wa s eg reg ious and had a seriously deleter io u s i m p ac t on the balanc e of the repr esenta tion.” Id

. Review of counsel’s repr esenta tion is highly defe rential, and the revie wing court indulge s a strong presumption that counsel’s conduct fell within a wide rang e of rea sonable repr esenta tion. Mallett v. State , 65 S.W .3d 59, 63 (Tex. Crim. App. 2001). A revie wing court will rar ely be in a position on direc t appea l t o fa i rl y evalua te the merits of an ineffe ctive assistance claim. Th ompson v. State , 9 S.W .3d 808, 813-14 (Tex. Crim. App. 1999). “I n the maj o rity of case s, the rec ord on direc t appea l is undevelope d and cannot adequately

ref lect the motives behind trial c ounsel’s ac tions.” Mallett , 65 S.W .3d at 63. Appellant has not e x plained how the complained- of actions or inactions of counsel hindere d prepa

ration of his defe nse, much less demonstrate d how the rec ord shows that if not 5for these defic iencies the result of the trial would have b een differ ent. He has not shown himself

entitled to reve rsal based on ineffe ctive assistance of counsel. Cf. Cox v. State , 389 S.W .3d 817, 819 (Tex. Crim. App. 2012). Any delay in sett ing ap pellant’s pretrial bond i s not ground s for rever sal on ap peal.

Appellant complains that the f ailure of the trial cour

t to consider setti ng a personal bond for more than eig ht months violated his F ourth Amendment rig ht to unlawful detention. We need not address the merits of appe llant’s issue beca use his conviction re ndere d complaints about his pretrial de tention moot. See D anziger v. State , 786 S.W .2d 723, 724 (Tex. Crim. App. 1990). Appellan t has not dem onstrate d rever sibl e er ror in the r eading of the victim ’s state m ent. Appellant complains that the trial court err ed by allowing a sheriff

’s deputy to r ead aloud from the questionnaire portion of the assault victim’s statement in front of the jury

. Appellant objected that having the deputy rea d produce d hear say and on appea l complains specific ally that it

was not a dmissibl e under the hea rsay exception for public rec ords. See Tex. R. Evid. 803(8). We revie w a trial court’s deter mination of whethe r ev i d ence is admissible under an exception to the hear say rule for an abuse of discretion. W all v. State , 184 S.W .3d 730, 743 (Tex. Crim. App. 2006). An ab u se of discretion occur s only when the trial court’s decision was so clea rly wrong as to li e o u t s i de that zone within which rea sonable persons might disag ree . Montgomery v. State , 810 S.W .2d 372, 380 (Tex. Crim. App. 1990) (op. on re h’g ).

The dispu t ed ev idence was admitted during the testimony of the deputy , who testified afte r appellant’ s wife. When cross-e x amining appellant’ s wife, the defe nse challeng ed her

cre dibilit y by exploring her complaints to police within two wee ks of this incident that did not result 6in appellant’s a rre st. When the prosecutor l ater asked the deputy sheriff about appellant’s wife’ s 1 response s to the questionnaire portion of her assault victim’s statement, appellant objected that the

answe rs would be h ea rs ay . The State arg ued that the questionnaire response s wer e admissible to show “the dy

namic and the power

and contr ol that led her to be wha t I think defense is describing to be par anoid beha

vior.” I t is not clear

that appellant pr eser

ved this issue. See Tex. R. App. P

. 33.1(a)

. I n a bench confe renc e, appe llant objected to the e vidence , but the trial court ne ver e x pressly overr uled his objection. Appellant’s c ounsel stated at the c lose of the discussion with the court, “So subjec t to her being rec alled then I g uess,” indicating that he was withdrawin g his hear say objection if he could rec all appellant’ s wife to the stand. The trial court permitted the rea ding, and appellant’ s counsel did not rea ssert his objection to the questions.

Even if the admission of this evidenc e was err oneous and prese rved for our revie w, appellant has not sh o wn t h at it aff ecte d his substantial rig hts. See Tex. R. App. P. 44.2(b). The disputed testimony is the deputy ’s statement that he asked, “Ha s she or he ever tried to c hoke y ou, and she answe red y es. . . . ‘Ha s she or he ever forc ed y ou to have sex on y ou when y ou did not wish to do so,’ she answe red y es. . . . ‘Doe s she or he follow or spy on y ou or leave threa tening messag es,’ she answe red y es.” T h is e v id e n c e w as essentially cumulative of other evidenc e reg arding appellant’ s prior convic tions for assaulting his wife (be fore and af ter their ma

rriag e), a s well as her te stimony

For example, appellant’ s wife previously complained to a l aw en fo rc em ent office r that 1 appellant had hit her fac e with his head, som ehow pierc ing her with a needle in the proce ss. Emerg ency

responde rs did not find a puncture mark on he r. 7that his abuse never stopped and that he threa tened to kill her. As such, its admission was harmless.

See B rooks v. State , 990 S.W .2d 278, 287 (Tex. Crim. App. 1999).

CONCLUSION We affir m the judgme nt.

J eff Rose, J ustice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Affir med Filed: Aug ust 28, 2014 Do Not Publish

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