1 Initi ally, appellant plead not guilty, but during trial entered into a plea agreement. NO. 07-01-0261 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A MARC H 19, 2002

______________________________ JIMMIE D. WATSON, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 47 TH DISTRI CT COURT OF POTT ER COUNTY; NO. 43,555-A; H ONORAB LE DAV ID GLEAS ON, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Pursuant to a plea of gui lty, appel lant Ji mm ie D. W atson, an inm ate, was convicted of mu rder, enhanced, and punishm ent wasassessed at 40 years confinem ent. 1 Appellant filed his noti ce of appeal in compliance with Rul e 25.2(b)(3 ) of the Texas R ules o f Appellate Proce dure . Present ing two points of error, appellant co ntendsthe trial co urt2

erred in d en yi ng hi s mo ti on to se t a si de th e i nd i ct men t f or (1 ) f ai l i ng to affo rd hi m hi s constitutional right to a speedy trial, and (2) denying him aspee dy trial based on a vi olat ion of his Sixth A mendm ent right to counsel. Based u pon the rationale expressed he re i n, we a ff i rm. On Novem ber 12, 1994, appellant and a no ther inmate as saulted a third inmate. The victim rem ained comatose until June 24, 1997, w hen he died. On Decem ber 18, 1997, appellant w

as indicted for m urder, enhanced by two prior convictions. A ccording to the record appellant was read his rights on A ugust 27, 1997, and capias was issued on Decem ber

18, 1997, and received by appellant on January 29, 1998. On Ma rch 13, 1998, appellant filed a pro se mo tion to dismiss the indictment pursuant to articles 28.061 and 32.01 of the Texas

Code of Crim inal Procedure for failure to present the indictment at the
ne xtterm of court. On A ugust 25, 1999, theBoard of Criminal Justice was directed by the trial court to provide appellant with legal representation. However, although unc lear from the record , it app ear

s th at coun sel w

as n ot a ppo inte d un til s om etim e in October 1999, at which time cou n s el moved to withdraw due to a conflict of interest. A ppellant was reind icted u nder a different cause num ber on February 1, 2001, and on M arch 8, 2001, pursuant to a bench warrant, appellant was brought bef ore the court, served w ith a copy of the indi ctment, and co u nsel was appointed to repres ent him. After dism issal of the second indictm ent, ap pellant was re-indicted under cause num ber 43,3 55-A on March 15, 2001. Counsel filed two separate mot ions to set aside the indictm ent for violation of3

appell ant’s Sixth A mendm ent rightto a speedy trial. After a he aring was held on April 17, 2001, the court took the mot ion under advisemen t. Following jury selection and presentation o f s ome of the State’ s witnesses , appellant agreed to change his plea to guilty in exchange fo r 40 years c onfinement. On April 25, 2001, the trial court denied appellant’s motion to s et aside the indictment. Byhis first point of error, app ellan t co nte ndsthetria l cou rt e rre d in d eny ing h is mot ion to set aside the indictm ent for fai lure to afford him his cons titutional right to a speedytrial. W e disag ree. The right to a speedy trial is guaranteed by the Six th Am endme ntof the Un ited Sta tes Constitution and applies to the states through the Fourteenth Am endme nt. See Barker v. Wi ngo, 407 U.S. 514, 530, 92 S.C t. 2182, 2192, 33 L.E d.2 d 10 1, 1 16- 17 ( 197 2). Ad ditio nally , A rtic le I, Section 10 of the Texas Constitution and article 1.05 of the Texas Code of Crim inal Procedure Annotated (Vernon 1977 ) guarantee a s pe ed y t ri al . I n d et er mi ning whethe r an accused w as denied his right to a speedytrial, we are required to balance four factors, to-wit: 1) length of t he d elay; 2)
reason for the delay; 3) assertion of the right; and 4 ) prejudice to the a ccused to determ ine whether a defendant’s right

to a speedy trial has been violated. Barker , 407 U.S. at

530- 32; State v. M unoz, 991 S.W.2d 818, 821 (Tex.Cr.A pp . 1999). No sing le factor i s a “necess aryor s uff icie nt conditi on to the find ing” of a spe edy trial violat ion, and the se factors mu st be considered in conj unction with other relevant circums tances. Munoz , 991 S.W.2d at 821, citing Barker , 407 U.S. at 533. Because the balancing test as a w holeis4

a purely legal question, we m ust review appellant's contention de novo

. See Johnson v. State , 954 S .W.2d 770, 771 (Tex.C r.App. 1997). Length of

del ay. A defendant

has the burden of first showing that sufficient delay has occurred to trigger application of the Barker balancing test. Statev. Hernandez, 830 S.W.2d 631, 63 5 (Tex .App. –San A ntonio 199 2, no pe t.). Appellant asserts that a s evenyear delay occurred from the date of th e o ff en se to th e t i me of trial; however, appellant was notcharged with a crim e until three years after the incident w hen the victim died on June 24, 1997. Appellant was indicted on Decem ber 18, 1997. The State acknowledges that the 40- m ont h de lay b etw een app ellan t’s

indic tm ent and thetria l d ate necessita tes a speedy trial analysis.
Reason for

the del ay. The State bears t he burden of j ustifying the trial delay, and if the record is silent or the reasons given are insufficient to excuse the del ay, the appellate co ur t mu st pr es ume that no valid reason for the delay ex isted. Phillips v. State, 650 S.W.2d 396, 400 (Tex.Cr.App. 1 983). Barker does not require a direct explanation in every case. See Ram irez v. State, 897 S .W .2d 428, 431-32 (Tex.A pp.–El Paso 1995, no pet. ).
The State did not reques t any continuances nor w as it ever called upon to announce read y. At the hearing on appell ant’s mo tion the State ex plained that no delay
wasatt ribu tab le to it. The State argued t hat the j udicial system caus ed the delay. The trial5

court dec ided to t ry a ppe llant ’s co- def end ant firs t. Ac cor

din g to t he State, this j ustified much of the delay. The evidence at the hearing also established that appellant was in the process of developi ng his ca se and could not have proceeded to trial any sooner. We agree w ith t he S tate th at t he r eas onsfor

thedela y s hou ld weigh only minim ally against it.
Ass ertion of the righ t. A defendant’s assertion of his speedy trial right is entitl ed to strong evidentiary weight in determ ining whether he was deprived of that right. Barker , 407 U.S. at 531-52. Conversely, a failure to assert the right in a timely and persistent
manne r indicates that he did not really desire a speedy trial. Id . at 534-36. In such a case, thisfactor

must be w

eighed ag ainst the defendant. S inclair v. State, 894 S.W.2d 437, 440 (Tex. App.--

Austin 1995, nopet.). Appellant received the capias on January 29, 1998, a nd on March 13, 1998, he filed
a pro se mo tion to dismiss the indictm ent. By his m otion, appellant did not request a speedytrial nor did he indi cate that he w as ready to proceed totrial. In McCart y v. State, 498 S.W.2d 212, 214 (Tex.Cr.App. 1978), the Court noted: [a]lthough a m otion to dismiss notifies the State and the court of the s peedy trial claim, a defendant ’s m otivation in asking for dismissal rather than a prompt tria l is c lear lyrelevant, and m aysom etimes at tenuate the strength of hi s c l ai m.
See also M abra v. State, 99 7 S.W.2d 770, 7 77-78 (Tex .App. –Am arillo 1999, pet . ref’d ). Candace Norris, who had been appointed to represent appellant but later withdrew6

because of a co nflict, testified at the hearing that appellant had som e legal issues to dev elopbef

ore pro cee ding to t rial. A copy of a letter dated October 15, 1999, w ritten by appellant was adm itted into evidence. It evinced his intent to have couns el file numerous mot i ons and r aise a defensive issue. The evidence at the hearing estab lished that appellant did not really desire a spee dy trial, but instead hoped for a dism issal of the indictment. We conclude this factor weighs heavily against appellant. Preju dice. Although a show ing of actual pre j udice is not requ ired, appe llant bears the initial burden of establishing prejudice fromthe delay of his trial. Harris v. State, 489 S.W.2d 303, 308 (Tex.Cr.App. 1973 ). It is the defendant’s burden to m ake a show ing of prejudice. Ramirez

, 897 S. W. 2d at 433. A m ere passage of tim e is not per se a depri vation of the right to a speedy t rial. McCarty v. S tate, 498 S.W.2d 212, 21 5 (Tex.Cr.A pp. 1973). Prej udice is considered in light of the interests that the right to a speedytrial was designed to protect. Barker , 407 U .S. a t 532. These inte re st s include prevention of extended pretri al inca rcerati on, minimization of anxiet y over pending charges, and m ost importan tly, the prevention of actual pre judice to the defendant's ability to present a defense. SeeEm eryv. State, 88 1 S.W.2d 702, 709 (Tex.Cr.A pp. 1994), cert. denied, 513 U.S. 1192, 115 S.Ct. 12 57, 131 L.Ed.2d 137(1995). Although a ctual prejudice i s not requ ired, a defendant m ust m ake a pr ima fa cie showing of prej udice. Munoz , 991 S.W.2d at 826.7

Appellant was incarcerated f or a nother c rimewhe n he w as indicted for m urder. Thus, he cannot claim that his pretrial incarceration was oppress ive. He did notpresent
an y evidenc e to show anxiety, fear, o r disruption of family life by the delay. By the evidence and num er ou s wi tnesses presented at the hearing on his m otion, appellant attem pted to establish that the 40-m onth delay prejudiced his abilityto present a defense. Appellant established thatsom e evidence and potential witnesseswere no longer available. The internal affairs investigator testified that after he c oncluded h is investigati o n he turned the evidence and his report over to his supervisor. He believed thatth os e i te ms ha d b ee n sh ip pe d t o Hu nt svi ll e. Two of the warden’s designees testified and com plied w ith t heir subpoenas to the bes t of their ability. Appellant had requested a roster of al l i nma te s h ou se d i n h i s b ui l di ng an d i ts re l at ed po ds at th e t i me of the incident. However, the witnesses testified that because the roster changes frequently due to
movement

of the inm ates, they are not required to keep such a record.
A private investigator

appointed to assist in appellant’s case testified that the State
wasvery cooperative throughout her investigation. Sheconfirmed t hat there had been no delay attributable to the State. She gathered her information frominterviews w ith guards and inmates and attem pted to locate other w itnesses who were no longer inm ates. Of a pos sible144 inmates

housed in a pod, she ackn owledged that shecould only speculate how ma ny had w itnessed the incident because at an y g i ve n t i me inmates may be out of the pod for visitation, job dut ies, or me als. Although she testified that she w as unable to8

locate nu m erous w itnesses , the S tate of fered voluntary

statem ents that w

ere taken after the incident of those persons. According to the S tate, none of the statements would have exonerated appellant. Also, appellant did not make a pr ima fa cie showing of prejudice by satisfying his burden to show what th e m issing evidence or una vaila ble witne sse s w ould have estab lishe d. This factor weighs against appellant. After balancing the Barker factors , we conclud e the tr ial court did n ot err in denying appellant’s motion to set aside the indictment fo r violating his ri ght to a speedy trial. Point of error one is ove rruled. Byhis second pointof

err or, app ellan t co nte ndsthetria l cou rt e rre d in d eny ing h is mot ion to set aside the indictm ent on spe edy tria l gro und s re sult ing f roma v iolat ion of his Sixth Ame nd men t r i gh t t o c ou ns el . W e d i sa gr ee . A t t he ti me app ellan t as ser ted his right to a speedy trial, he was represented by counsel. Having previously concluded that the trial court did not err in denying appellant’s motion, his second point of error is m oot. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Rea vis Justice Do not publish.