IN THE
TENTH COURT OF APPEALS
No. 10-08-00033-CR
KEVIN JOSEPH REESE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2005-1049-C1
MEMORANDUM OPINION
Kevin Joseph Reese was convicted of possession of a controlled substance, which
was enhanced to a second degree felony. See TEX. HEALTH & SAFETY CODE ANN. §
481.115(b) (Vernon 2003); TEX. PENAL CODE ANN. § 12.42(a)(2) (Vernon Supp. 2008). He
was sentenced to 20 years in prison. Because the issue of vindictive prosecution was
not preserved and because Reese’s right to a speedy trial was not violated, the trial
court’s judgment is affirmed.
VINDICTIVE PROSECUTION
In his first issue, Reese contends that the prosecutor assigned to his case engaged
in vindictive prosecution.
Both Texas and federal courts recognize that prosecutors have broad discretion
in deciding which cases to prosecute. Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App.
2004). A claim of prosecutorial vindictiveness may be established by either of two
distinct methods of proof: 1) proof of circumstances that pose a "realistic likelihood" of
such misconduct sufficient to raise a "presumption of prosecutorial vindictiveness,”
which the State must rebut or face dismissal of the charges; or 2) proof of "actual
vindictiveness"- that is, direct evidence that the prosecutor's charging decision is an
unjustifiable penalty resulting solely from the defendant's exercise of a protected legal
right. Id. (internal citations omitted). Reese bases his claim on the second method of
proof, actual vindictiveness.
To establish a claim of actual vindictiveness, a defendant must prove, with
objective evidence, that the prosecutor's charging decision was a "direct and
unjustifiable penalty" that resulted "solely from the defendant's exercise of a protected
legal right." Neal v. State, 150 S.W.3d at 174. (internal citations omitted). Under this
method of proof, the defendant shoulders the burden of both production and
persuasion, unaided by any legal presumption. Id. The trial judge decides the ultimate
factual issue based upon the evidence and credibility determinations. Id. at 174-175.
The State may stand mute unless and until the defendant carries his burden of proof.
Reese v. State Page 2
Id. We note that the charging decision in this proceeding was made prior to the conduct
Reese alleges is proof of prosecutorial vindictiveness.
But, just as in Neal, Reese has not preserved his claim for review. See Neal v.
State, 150 S.W.3d at 175. Although Reese points to two hearings1 where he informed the
trial court that he wanted the prosecutor removed from the case and to a pro se motion
for speedy trial where he mentioned that the prosecutor was vindictive in his
prosecution of an earlier case, Reese did not let the trial court know with sufficient
specificity that his complaint was that the prosecutor’s charging decision in this case was
a direct and unjustifiable penalty that resulted solely from Reese’s exercise of a
protected legal right. See TEX. R. APP. P. 33.1(a)(1)(A). The trial court was not asked to
decide whether Reese met his burden of proof and if so, did not then put the State on
notice that it had to justify its actions. Reese has not preserved this issue for review,
and it is overruled.
SPEEDY TRIAL
In his second issue, Reese contends that his conviction should be reversed and a
judgment rendered of acquittal because he was denied his constitutional right to a
speedy trial.
The Sixth Amendment to the United States Constitution guarantees an accused
the right to a speedy trial. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008)
(citing Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002)). Supreme Court
1Reese wanted the Court to consider two more hearings from different proceedings. Because we denied
his motions to supplement the record with reporter’s records from those hearings, those hearings are not
a part of this record for review. Even if the record was supplemented with those hearings, his claim
would still not be preserved.
Reese v. State Page 3
precedent requires state courts to analyze federal constitutional speedy-trial claims "on
an ad hoc basis" by weighing and then balancing the four Barker v. Wingo2 factors: 1)
length of the delay, 2) reason for the delay, 3) assertion of the right, and 4) prejudice to
the accused. Id. While the State has the burden of justifying the length of delay, the
defendant has the burden of proving the assertion of the right and showing prejudice.
Id. The four factors are related and must be considered together along with any other
relevant circumstances. Id. at 281. Courts must apply the Barker balancing test with
common sense and sensitivity to ensure that charges are dismissed only when the
evidence shows that a defendant's actual and asserted interest in a speedy trial has been
infringed. Id.
Standard of Review
"In reviewing the trial court's ruling on appellant's federal constitutional speedy
trial claim, we apply a bifurcated standard of review: an abuse of discretion standard
for the factual components, and a de novo standard for the legal components."
Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). Under the abuse of
discretion standard, appellate courts defer not only to a trial judge's resolution of
disputed facts, but also to his right to draw reasonable inferences from those facts.
Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008). The trial judge may
completely disregard a witness's testimony, based on credibility and demeanor
evaluations, even if that testimony is uncontroverted. Id. And all of the evidence must
be viewed in the light most favorable to his ultimate ruling. Id.
2 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
Reese v. State Page 4
As a general rule, an appellate court reviewing a trial court's ruling on a motion
to dismiss for want of a speedy trial must do so in light of the arguments, information,
and evidence that was available to the trial court at the time it ruled. Dragoo v. State, 96
S.W.3d 308, 313 (Tex. Crim. App. 2003).
The Hearing
On January 17, 2008, the trial court brought Reese into court because on the day
before, Reese had filed two pro-se motions, a writ of habeas corpus alleging a speedy
trial complaint and a “Motion to Set Aside Indictment for Failure to Provide Speedy
Trial.” Reese had also “filed some pro se letters to the court alleging that [his] right to a
speedy trial has been violated….” A hearing took place on those motions. The case had
been transferred to this particular court only three days before the hearing. Further,
neither party asked the court to take judicial notice of what was in the court’s file, nor
admitted into evidence what had occurred in the district court where the indictment
was originally filed. Throughout the hearing, the trial court assured Reese he would get
a speedy trial and set the trial for the next week. After the hearing, Reese’s motions
were denied.
Length of the Delay
The length of the delay is measured from the time the defendant is arrested or
formally accused. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). This factor
is, to some extent, a triggering mechanism, so that a speedy trial claim will not even be
heard until passage of a period of time that is, on its face, unreasonable under the
circumstances. Id. (citing Doggett v. United States, 505 U.S. 647, 651-652, 120 L. Ed. 2d
Reese v. State Page 5
520, 112 S. Ct. 2686 (1992); Barker v. Wingo, 407 U.S. at 530). In general, courts deem a
delay approaching one year to be unreasonable enough to trigger the Barker inquiry.
Dragoo v. State, 96 S.W.3d at 313.
Prior to any discussion about the motions filed by Reese, the trial court
confirmed that Reese had been represented for about two years by the same counsel
and prior to that he had been represented by different counsel. Reese stated that the
case had been pending almost three years. It appears from the record that the parties
were in agreement that the case had been pending a long time.
A delay of almost three years is long enough to trigger the Barker inquiry and
weighs against the State.
Reason for the Delay
When a court assesses the second Barker factor, "different weights should be
assigned to different reasons" for the delay. Dragoo v. State, 96 S.W.3d 308, 314 (Tex.
Crim. App. 2003). A valid reason for the delay should not be weighed against the
government at all. State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999) (citing
Barker v. Wingo, 407 U.S. at 531 (valid reason for the delay "should serve to justify
appropriate delay")). And delay which is attributable in whole or in part to the
defendant may even constitute a waiver of a speedy trial claim. Id. (citing Dickey v.
Florida, 398 U.S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26, 38 (1970) (Brennan, J., concurring)
(defendant may be "disentitled to the speedy-trial safeguard in the case of a delay for
which he has, or shares, responsibility")).
Reese v. State Page 6
In response to Reese’s statement to the court that the case had been pending
almost three years, the State explained that part of the delay was Reese’s trial for felony
bail jumping. Another part of the delay was that they had to go to Illinois to retrieve
Reese. The State further explained that Reese had asked for resets or continuances so
his attorney could obtain additional information. Reese’s counsel agreed that he filed
some continuances on Reese’s behalf earlier in the proceeding. He also stated that since
August, there had been other cases pending in the previous district court that had been
specially set, such as three murder trials and aggravated sexual assault trials, which
caused this case not to be tried. The trial court commented that it understood how that
could happen.
Based on the statements made in court, the trial court could have determined
that Reese shared in the responsibility for the delay of his trial. Thus, this factor weighs
in favor of the State.
Assertion of the Right
A defendant has the responsibility to assert his right to a speedy trial. Cantu v.
State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008). The lack of a timely demand for a
speedy trial strongly indicates that a defendant did not really want a speedy trial and
that he was not prejudiced by lack of one. Dragoo v. State, 96 S.W.3d 308, 314 (Tex.
Crim. App. 2003). Inaction weighs more heavily against a violation the longer the delay
becomes. Id. (citing G. Dix & R. Dawson, Texas Criminal Practice and Procedure § 23.40
(2d ed. 2001)). Filing for a dismissal instead of a speedy trial will generally weaken a
Reese v. State Page 7
speedy-trial claim because it shows a desire to have no trial instead of a speedy one.
Cantu v. State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008).
Only a day before the hearing, Reese filed two pro-se motions, a writ of habeas
corpus alleging a speedy trial complaint and a “Motion to Set Aside Indictment for
Failure to Provide Speedy Trial.” The trial court stated that Reese had also “filed some
pro se letters to the court alleging that your right to a speedy trial has been violated…,”
but no time frame was given for those letters and it is unclear as to what “letters” the
trial court was referring. If any earlier requests for a speedy trial were made, Reese did
not bring those requests to the trial court’s attention. On appeal, Reese points to veiled
references to the amount of time he had spent in jail to the court in which this
proceeding was originally filed. These references were not before the trial court that
decided the pro se motions and do not affirmatively assert Reese’s right to a speedy
trial.
Further, when Reese was told a trial would be set for the next week, which was
January 22, 2008, counsel explained that because he was currently trying a murder case,
Reese wanted to start his trial on the 28th or 29th so that counsel could look into some
things. “[H]e wants a speedy trial but wants to give me that week after this trial to
properly prepare.” RR V at pg. 6.
Reese delayed in asserting his right to a speedy trial. He then asked for a
dismissal rather than a speedy trial. Further, when a trial was set, Reese wanted to wait
another week. The trial court could have believed that Reese did not really want a
speedy trial. This factor weighs against Reese.
Reese v. State Page 8
Prejudice to the Accused
When a court assesses the final Barker factor, it must do so in light of the interests
of defendants which the speedy trial right was designed to protect: (1) to prevent
oppressive pretrial incarceration; (2) to minimize the accused's anxiety and concern; and
(3) to limit the possibility that the accused's defense will be impaired. Barker v. Wingo,
407 U.S. at 532; Dragoo v. State, 96 S.W.3d 308, 316 (Tex. Crim. App. 2003).
As is obvious by the fact that Reese was brought back to Texas from Illinois, he
was not detained in Texas the entire period between indictment and trial. Nevertheless,
Reese complained that by being in jail so long, he was broke and had lost everything.
Reese further complained that he had two witnesses who had passed away. He claimed
that the witnesses were with him the night the offense for possession of a controlled
substance took place. He contended that he was not going to get a fair trial because of
the delay. The prosecutor for the State responded that this was the first time he had
heard about additional witnesses for the possession case. The prosecutor stated that
Reese had alleged the same thing, that someone had passed away, in the felony bail
jumping case; but in the drug case, the prosecutor did not believe any one else, other
than the State’s witnesses, was present at the time of the offense. Further, Reese did not
identify with specificity who had died or how their testimony would have assisted in
his defense.
Reese v. State Page 9
The trial court could have disbelieved Reese’s assertion that he had witnesses
who could not now testify. But because Reese had been in jail so long, this factor only
weighs slightly in favor of Reese.
Balancing
In balancing the four factors, we find that although the delay was lengthy and
Reese had been in jail for an extensive period of time, Reese contributed to the delay, he
did not really want a speedy trial, and the prejudice to him was slight. Therefore, when
balanced together, the weight of the four factors is against a finding of a violation of
Reese’s right to a speedy trial.
The trial court did not err in denying Reese’s motions, and Reese’s second issue
is overruled.
COURT COSTS
In his third issue, Reese asserts that by an order signed on January 31, 2008, the
trial court violated his due process rights by notifying the Texas Department of
Criminal Justice—Institutional Division to debit Reese’s inmate account for court costs
without giving him prior notice. Reese does not challenge the amount of the cost
assessed against him, only the method by which TDCJ—ID was notified to debit his
inmate account for the cost assessed.
Reese’s entire argument is based solely on this Court’s opinion in In re Keeling,
where a majority of this Court held that, in a criminal mandamus proceeding, a court’s
order notifying TDCJ—ID to debit an inmate’s trust account for cost violated the
inmate’s right to due process and was void. See In re Keeling, 227 S.W.3d 391 (Tex.
Reese v. State Page 10
App.—Waco 2007, orig. proceeding). However, recently, the Court of Criminal Appeals
has held that the particular complaint made by Reese and made by the inmate in Keeling
is not a criminal law matter. In re Johnson, ___S.W.3d ___, No. AP-75,898, 2008 Tex.
Crim. App. LEXIS 1628 (Tex. Crim. App. Oct. 29, 2008). Therefore, because Reese’s
complaint is not a criminal law matter, this issue is not properly before us; and we will
not dispose of the issue in this criminal appeal. We dismiss this issue.
CONCLUSION
Having disposed of all issues properly before us, we affirm the trial court’s
judgment of conviction.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed February 11, 2009
Do not publish
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