IN THE
TENTH COURT OF APPEALS
No. 10-01-409-CR
No. 10-01-410-CR
No. 10-01-411-CR
No. 10-01-412-CR
No. 10-01-413-CR
No. 10-01-414-CR
No. 10-01-415-CR
No. 10-01-416-CR
No. 10-01-417-CR
No. 10-01-418-CR
     WILLIAM A. McINTOSH,
                                                                              Appellant
     v.
     THE STATE OF TEXAS,
                                                                              Appellee
From the 40th District Court
Ellis County, Texas
Trial Court Nos. 20084CR, 20085CR, 20086CR, 20087CR
20379CR, 20380CR, 20381CR, 20382CR, 20383CR and 20384CR
                                                                                                               Â
MEMORANDUM OPINION
                                                                                                               Â
      William A. McIntosh appeals from the trial courtâs denial of his motions for appointment of trial counsel in a series of DNA proceedings under chapter 64 of the Code of Criminal Procedure. We notified McIntosh in a published order dated December 11, 2002 that these are not appealable orders and that these appeals would be dismissed for want of jurisdiction if supplemental clerkâs records containing orders adjudicating the merits of his motions for DNA testing were ânot filed with the Clerk of this Court on or before 5:00 p.m. on December 27, 2002.â McIntosh v. State, No. 01-409-CR, slip op. at 3-4, 2002 Tex. App. LEXIS 8879, at *4 (Tex. App.âWaco Dec. 11, 2002, order).
      We have not received a supplemental record containing an order on the merits in any of these appeals. Accordingly, we dismiss these appeals for want of jurisdiction.
                                                                   PER CURIAM
Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Appeals dismissed for want of jurisdiction
Opinion delivered and filed March 5, 2003
Do not publish
[CR25]
Pena contends in the remaining three points that he received ineffective assistance of trial counsel because counsel failed to: (a) request a jury instruction on mistake of fact, (b) move for dismissal because of pretrial delay, and (c) preserve his due course of law claim for appellate review.
           To prevail on an ineffective-assistance claim, an appellant must show by a preponderance of the evidence that: (1) counselÂs performance was deficient and (2) the
deficient performance prejudiced the defense.  Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007). We begin with a Âstrong presumption that counsel provided reasonably professional assistance, and Pena bears the burden of overcoming this presumption.  See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).  Generally, the appellate record is insufficient to satisfy this burden.  Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004); Curry v. State, 222 S.W.3d 745, 754 (Tex. App.ÂWaco 2007, pet. refÂd).  If nothing in the record reveals the reason for the act or omission which is the basis of an ineffective assistance complaint, we may not speculate on that reason.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Curry, 222 S.W.3d at 754.
Mistake of Fact
           Pena argues in his second point that he received ineffective assistance of counsel because counsel failed to request an instruction on mistake of fact. PenaÂs trial counsel testified at the hearing on his motion for new trial. However, counsel noted at the beginning of his testimony that he did not bring his file and did not know that he was going to be called to testify. Regarding the jury charge, counsel testified that he did not remember why he chose not to request an instruction on mistake of fact. We may not speculate on the reason(s) he did not request this instruction. Id. Accordingly, we overrule PenaÂs second point.
Speedy Trial
           Pena claims in his third point that he received ineffective assistance of counsel because counsel failed to move for dismissal because of pretrial delay. To prevail on an ineffective assistance claim premised on counselÂs failure to file a pretrial motion, an appellant must show that the motion would have been granted. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam); Edmond v. State, 116 S.W.3d 110, 112 (Tex. App.ÂHouston [14th Dist.] 2002, pet. refÂd); see Pady v. State, No. 13-07-00075-CR, 2008 Tex. App. LEXIS 8577, at *4 (Tex. App.ÂCorpus Christi Nov. 13, 2008, pet. refÂd) (not designated for publication) (applying this principle to ineffective assistance claim premised on counselÂs failure to seek speedy trial).
           We consider the four Barker factors when evaluating a speedy-trial claim: 1) length of the delay, 2) reason for the delay, 3) assertion of the right, and 4) prejudice to the accused. See Cantu v. State, 253 S.W.3d 273, 277 (Tex. Crim. App. 2008) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972)). The length of delay is undisputedÂmore than four years.[3] Once a presumptively prejudicial delay like this is shown, the State bears the initial burden of providing a justification for the delay. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994); Blaylock v. State, 259 S.W.3d 202, 209 (Tex. App.ÂTexarkana 2008, pet. refÂd).
           Pena was arrested on September 27, 1998 and made a $10,000 surety bond the next day. He was incarcerated in Harris County one month later for Âother matters and parole violations and was not released until July 1999. During his incarceration, his surety presented an affidavit for his surrender, and a warrant was issued for PenaÂs arrest. He was not arrested on this warrant until June 2001, and counsel was appointed to represent him shortly thereafter. Pena was released on bond again in October 2001.
           The case was set for trial in July 2002 but postponed after the court granted PenaÂs continuance motion. The parties proceeded to trial in September 2002, but the venire panel was dismissed after the challenges for cause were granted because an insufficient number of veniremembers remained. See Goode v. State, 740 S.W.2d 453, 459-60 (Tex. Crim. App. 1987) (reversing conviction where defendant received only 9 of 15 peremptory challenges required by statute in death penalty case); see also Tex. Code Crim. Proc. Ann. art. 35.15(b) (Vernon 2006) (State and defendant each entitled to 10 peremptory challenges in non-capital felony case). PenaÂs appointed counsel withdrew about one month later, and a second attorney was appointed to represent him. He was tried in early January 2003.
           It appears that the parties share responsibility for the first three years of the delay. Pena was incarcerated in another county for a year following his arrest and remained at large after his release without making any inquiry into the status of this case. Conversely, it does not appear that his address changed at any time before trial, and, though the authorities had a valid address for him at all times, the record contains no evidence that the State attempted to arrest him between July 1999 and June 2001. See Emery, 881 S.W.2d at 708 (State bears burden of justifying presumptively prejudicial delay); Blaylock, 259 S.W.3d at 209 (same); cf. Smith v. State, No. 05-04-01343-CR, 2005 Tex. App. LEXIS 6820, at *15-16 (Tex. App.ÂDallas Aug. 23, 2005, pet. refÂd) (not designated for publication) (reasons for delay weighed against defendant because evidence was presented that efforts to arrest him at last known address were unsuccessful and he had moved without correcting his driverÂs license records).
           In the same way, the parties share responsibility for the remaining months of delay. During this time period, Pena obtained a continuance and changed attorneys. Conversely, the inability to secure enough veniremembers for the September 2002 trial Âis not a valid reason for delay and must be counted against the State, although not heavily. See Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003) (addressing crowded docket as reason for delay).
           Pena obviously did not assert his right to a speedy trial in the trial court. His trial counsel testified that he did not believe a speedy-trial motion would be meritorious because of PenaÂs previous Âtrial.Â
           Pena argues that he was prejudiced by the delay because the plant material which formed the basis for his prosecution was destroyed and the Department of Public Safety lab file was lost. However, those items were lost/destroyed in March 2000, while Pena was at large. He has not established how the filing of a speedy-trial motion by his first appointed counsel in July 2001 or by his second counsel in October 2002 would have prevented the loss/destruction of these items.
           The delay was lengthy, and the parties share responsibility for the delay. Pena has not established that a speedy-trial motion would have prevented the destruction of the plant material or the loss of the lab file. Thus, he has failed to establish that he would have prevailed on a speedy-trial motion. See Jackson, 973 S.W.2d at 957; Edmond, 116 S.W.3d at 112. Because he has failed to establish that he would have prevailed on such a motion, he has likewise failed to show a reasonable probability that the result of his trial would have been different but for trial counselÂs failure to file such a motion. See Pady, 2008 Tex. App. LEXIS 8577, at *7. Accordingly, we overrule PenaÂs third point.
Due Course of Law
           Pena avers in his fourth point that he received ineffective assistance of counsel because counsel failed to preserve for appellate review his claim that the Texas Due Course of Law provision provides greater protection than the federal Due Process Clause with regard to lost or destroyed evidence.
           This Court was the first in Texas to hold that the Due Course of Law provision provides greater protection than its federal counterpart with regard to preservation of evidence. See Pena v. State, 166 S.W.3d 274, 281-82 (Tex. App.ÂWaco 2005), revÂd, 191 S.W.3d 133 (Tex. Crim. App. 2006). In fact, we addressed this issue sua sponte because the parties briefed the case as if there were no distinction between the state and federal provisions. See Pena, 191 S.W.3d at 134.
           The deficient attorney performance component of an ineffective assistance claim cannot be based on alleged errors of counsel Âwhen the caselaw evaluating counselÂs actions and decisions in that instance was nonexistent or not definitive. Ex parte Young, 213 S.W.3d 327, 330 n.2 (Tex. Crim. App. 2006) (quoting Vaughn v. State, 931 S.W.2d 564, 568 (Tex. Crim. App. 1996)). The proposition that Texas Due Course of Law provision grants greater protection than the federal Due Process Clause with regard to preservation of evidence is a novel one. Counsel cannot be held to have rendered deficient performance for having failed to preserve such an unsettled proposition. See id. Thus, we overrule PenaÂs fourth point.
We affirm the judgment.
Â
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed June 9, 2010
Do not publish
[CRPM]
[1] Â Â Â Â Â Â Â Â Â Â Â Â Â See Pena v. State, 166 S.W.3d 274 (Tex. App.ÂWaco 2005), revÂd, 191 S.W.3d 133 (Tex. Crim. App. 2006), 226 S.W.3d 634 (Tex. App.ÂWaco 2007) (op. on remand), revÂd, 285 S.W.3d 459 (Tex. Crim. App. 2009).
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[2] Â Â Â Â Â Â Â Â Â Â Â Â Â The jury did not hear the audio portion of the recording.
[3]              The delay is measured from the date of arrest or the presentment of the indictment, whichever occurs first, to the date of trial. See State v. Manley, 220 S.W.3d 116, 122 (Tex. App.ÂWaco 2007, no pet.).