Roberto Perez, Jr. v. State

NUMBER 13-06-00381-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROBERTO PEREZ, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 148th District Court
of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Garza

Appellant, Roberto Perez, Jr., was charged by indictment with the offense of driving

while intoxicated (“DWI”). See TEX . PENAL CODE ANN . § 49.04(a) (Vernon 2003). As noted

in the indictment, this was appellant’s third DWI offense.1 See id. § 49.09(b)(2) (Vernon

1
The indictm ent also stated that appellant had previously been convicted of burglary of a habitation,
a second-degree felony, on May 18, 1990. See T EX . P EN AL C OD E A N N . § 30.02(a), (c)(2) (Vernon 2003).
Moreover, appellant adm itted, in one of his m any pro se filings, that he was convicted of m anslaughter on July
12, 2003.
Supp. 2008) (providing that an offense under section 49.04 of the penal code is a third-

degree felony if it is shown at trial that the defendant had previously been convicted of two

other DWI offenses). A jury convicted appellant of felony DWI2 and sentenced him to

seventeen years’ imprisonment in the Institutional Division of the Texas Department of

Criminal Justice (“TDCJ”) with no fine. See id. § 12.33(a) (Vernon 2003);3 § 12.42(a)(3)

(Vernon Supp. 2008). On appeal, appellant argues that: (1) the trial court erred in denying

his motion to dismiss due to an alleged violation of his right to a speedy trial; and (2) his

trial attorney provided ineffective assistance of counsel. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 24, 2003, a Nueces County grand jury charged appellant by indictment with

the offense of DWI, which allegedly occurred on February 27, 2003. The indictment

provided that appellant had previously been convicted of two other instances of DWI on

January 4, 1991 and April 10, 2000. Appellant was re-indicted on May 1, 2003, as a repeat

felony offender.

On August 11, 2003, the trial court appointed attorney Epimenio Ysassi to represent

appellant at trial. Ysassi, on August 14, 2003, filed a waiver of arraignment on behalf of

appellant. In this filing, appellant entered a plea of “not guilty” and waived his right to the

August 22, 2003 date set for his arraignment. Trial was set for January 12, 2004.4

2
Section 12.42(a)(3) of the penal code states that “if it is shown on the trial of . . . a third-degree felony
that the defendant has been once before convicted of a felony, on conviction the defendant shall be punished
for a second-degree felony.” Id. § 12.42(a)(3) (Vernon Supp. 2008). Because he was convicted of a third-
degree felony and he had been previously convicted of felony burglary of a habitation, appellant was
sentenced in accordance with the sentencing range for second-degree felonies. See id.

3
Section 12.33(a) of the penal code provides that “[a]n individual adjudged guilty of a felony of the
second degree shall be punished by im prisonm ent in the institutional division for any term of not m ore than
20 years or less than 2 years.” Id. § 12.33(a) (Vernon 2003).

4
For reasons not entirely clear in the record before us, the trial was later reset for August 17, 2005.
2
 On March 19, 2004, appellant filed a pro se application for appointment of new

counsel, alleging that Ysassi, among other things: (1) failed to communicate with him

regarding the preparation of his defense; (2) refused to give him up-to-date information

regarding the status of his case and upcoming hearings; (3) violated his right to a speedy

trial; and (4) refused to meet with his close acquaintance, Herminia Villarreal, regarding his

case. Furthermore, the record contains several handwritten letters addressed to the trial

court in which appellant repeatedly referenced his “right to a speedy trial.” On December

10, 2004, the trial court conducted a status hearing in appellant’s case. At this time, Ysassi

appeared on appellant’s behalf and communicated to the trial court that appellant no longer

desired that Ysassi represent him. The trial court granted Ysassi’s motion to withdraw at

this time.

On April 27, 2005, appellant, now represented by Eric Perkins, filed several motions,

including a motion for speedy trial. In this motion, appellant asserted that he would be

prejudiced if the trial was not held on or before June 27, 2005, because “the passage of

time has made it difficult to locate potential witnesses and for those witnesses to recall with

any clarity the events that led to defendant’s arrest.” Appellant also filed a motion to set

aside the indictment because he was allegedly denied his constitutional right to a speedy

trial. Appellant argued that: (1) there were no satisfactory reasons for the delay in bringing

him to trial; (2) he never waived his right to a speedy trial; and (3) he has been substantially

prejudiced because “he has suffered oppressive pretrial incarceration and substantial

anxiety and concern.”

On May 4, 2005, appellant filed a pro se motion to dismiss the felony DWI

indictment for violating his right to a speedy trial. In his motion, appellant alleged that: (1)

Ysassi ignored all of his phone calls and letters and refused to meet with Villarreal; (2) he
3
first asserted his right to a speedy trial in his application for the appointment of new

counsel; (3) he demanded a trial on several occasions; (4) the State “withheld trial for 28

months”; (5) he was falsely accused of murder and the State’s refusal to proceed to trial

amounts to “bad faith” prosecution; and (6) “this delay has inflicted a great amount of

anxiety, [sic] and concern, a[nd] a great deal of prejudice has been inflicted . . . .”

On August 15, 2005, the State filed its first motion for continuance, seeking a delay

of the August 17, 2005 trial setting because one of its witnesses, Corpus Christi Police

Department Officer Billy Gaines, a member of the Army Reserve, was mobilized for active

duty in Iraq. On August 17, 2005, the trial court conducted a hearing on the State’s motion

for continuance. The State, arguing in support of the motion for continuance, stated that

Gaines’s testimony was material to the case because he was the arresting officer with

respect to appellant’s felony DWI offense. Conversely, appellant argued that he had filed

a number of pro se motions asserting his entitlement to a speedy trial and that the State

was persisting in the prosecution of this offense out of vindictiveness, considering he was

already serving a life sentence for another conviction.5 The hearing concluded when

appellant’s counsel orally moved for a psychiatric evaluation of appellant, which the trial

court granted.6 With the respect to the State’s motion for continuance, the trial court stated

that the granting of appellant’s motion for psychiatric evaluation “render[ed] the trial setting

on Monday [August 17, 2005] moot.” The case was then set for trial on December 5,

5
It is noteworthy that appellant adm itted on the witness stand that prior to Perkins, six other attorneys
had represented him in this m atter and his trial for m urder.

6
Appellant filed a written m otion for exam ination regarding insanity on October 21, 2005.
4
2005.7

On November 2, 2005, the trial court conducted a hearing on appellant’s motion to

dismiss the felony DWI indictment for violating his right to a speedy trial. At the hearing,

appellant abandoned his request for a psychiatric evaluation and re-asserted the

arguments contained in his original motion to dismiss. The trial court denied appellant’s

motion.

Subsequently, the State filed a second motion for continuance on December 1,

2005. In this motion, the State again asserted that Gaines was unavailable to testify given

that he was still serving in Iraq. The State noted that Gaines was expected to complete his

military service at the end of January 2006. The trial court presumably granted the State’s

second motion for continuance, considering the State filed a third motion for continuance

on March 2, 2006, noting that the case had been set for trial on February 21, 2006, but that

Gaines was still unavailable to testify.

Finally, on May 15, 2006, the trial court commenced appellant’s jury trial. After both

sides presented evidence, the jury found appellant guilty and sentenced him to seventeen

years’ incarceration in the TDCJ with no fine.8 This appeal ensued.

II. APPELLANT ’S MOTION FOR SPEEDY TRIAL

By his first issue, appellant contends that the trial court erred in denying his motion

to dismiss for violating his right to a speedy trial. Specifically, appellant argues that the trial

court should have dismissed the indictment in this matter because a weighing of the Barker

7
On appeal, appellant notes that the trial court’s crim inal docket sheet reflects that the case was
called on October 10, 2005, but that “the State was not ready for trial . . . because the prosecutor ‘was out-
fam ily em ergency.” However, the docket sheet also states that appellant had “not yet [been] evaluated by [a]
Dr.”

8
Gaines was present at the May 15, 2006 trial, and he was the sole testifying witness.
5
factors supports a conclusion that his right to a speedy trial was violated. See Barker v.

Wingo, 407 U.S. 514, 530 (1972). The State counters by arguing that since three of the

four Barker factors do not weigh in appellant’s favor, the trial court properly concluded that

appellant’s right to a speedy trial was not violated.

A. Standard of Review

When reviewing a trial court’s decision on a speedy trial claim, an appellate court

applies a bifurcated standard of review. State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim.

App. 1999); State v. Jones, 168 S.W.3d 339, 345 (Tex. App.–Dallas 2005, pet. ref’d). We

review legal issues de novo but give deference to a trial court’s resolution of factual issues.

Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005); Munoz, 991 S.W.2d at 821;

Jones, 168 S.W.3d at 345. We review a speedy trial claim in light of the arguments,

information, and evidence that was available to the trial court at the time it ruled. Shaw v.

State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); Dragoo v. State, 96 S.W.3d 308, 313

(Tex. Crim. App. 2003); Jones, 168 S.W.3d at 345. Under this standard of review,

deference must be given not only to a trial court’s resolution of disputed facts, but also to

the drawing of reasonable inferences from the facts. Kelly, 163 S.W.3d at 726.

We must uphold the trial court’s ruling if it is supported by the record and is correct

under the applicable law. Shaw, 117 S.W.3d at 889; Munoz, 991 S.W.2d at 821; Jones,

168 S.W.3d at 345. If a violation of the defendant’s right to a speedy trial is established,

the only possible remedy is dismissal of the prosecution. Strunk v. United States, 412 U.S.

434, 440 (1973); Dragoo, 96 S.W.3d at 313; Jones, 168 S.W.3d at 346.

B. Discussion

The Sixth Amendment to the United States Constitution provides, in relevant part,

6
that "in all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial."

U.S. CONST . amend. VI; Barker, 407 U.S. at 515. This right was made applicable to the

states by the Due Process Clause of the Fourteenth Amendment. U.S. CONST . amend.

XIV; see Klopfer v. North Carolina, 386 U.S. 213, 223 (1967).

The Texas Constitution likewise provides that "in all criminal prosecutions the

accused shall have a speedy . . . trial." TEX . CONST . art. 1, § 10. The Texas Court of

Criminal Appeals has traditionally analyzed state constitutional claims of the denial of a

speedy trial under the factors established in Barker. See Zamorano v. State, 84 S.W.3d

643, 648 (Tex. Crim. App. 2002).

The primary burden is on the prosecution and the courts to ensure that defendants

are speedily brought to trial. See Chapman v. Evans, 744 S.W.2d 133, 136-37 (Tex. Crim.

App. 1988) (orig. proceeding) (citing Turner v. State, 504 S.W.2d 843, 845 (Tex. Crim.

App. 1974); McKinney v. State, 491 S.W.2d 404, 407 (Tex. Crim. App. 1973)). In

determining whether one has been denied his federal or state right to a speedy trial, a court

must use a balancing test to weigh the conduct of both the State and the defendant. See

Shaw, 117 S.W.3d at 888 (citing Barker, 407 U.S. at 530). The relevant factors to be

weighed include, but are not necessarily limited to: (1) the length of the delay; (2) the

reasons for the delay; (3) the defendant's assertion of his speedy trial right; and (4) any

prejudice to the defendant resulting from the delay. Id. at 888-89. We turn now to our de

novo review and independent weighing and balancing of the relevant Barker factors.

1. Length of Delay

The length of delay is a triggering mechanism for analysis of the other three Barker

factors. Barker, 407 U.S. at 530-33; Munoz, 991 S.W.2d at 821. Unless the delay is

7
presumptively prejudicial, we need not inquire into the other Barker factors. Munoz, 991

S.W.2d at 821. Generally, a delay of eight months or longer is considered "presumptively

prejudicial" and triggers speedy trial analysis. State v. Rangel, 980 S.W.2d 840, 843 (Tex.

App.–San Antonio 1998, no pet.). However, the length of delay that will invoke such an

inquiry depends upon the circumstances of each case. Zamorano, 84 S.W.3d at 648-49.

The Supreme Court has noted that "the delay that can be tolerated for an ordinary

street crime is considerably less than for a serious, complex conspiracy charge." Barker,

407 U.S. at 531; Zamorano, 84 S.W.3d at 649. If the accused demonstrates the time from

accusation to trial "has crossed the threshold dividing 'ordinary' from 'presumptively

prejudicial' delay, a court must then consider the extent to which that delay stretches

beyond the bare minimum needed to trigger judicial examination of the claim.” Zamorano,

84 S.W.3d at 649. Therefore, a "speedy trial analysis depends first upon whether the

delay is more than 'ordinary'; if so, the longer the delay beyond that which is ordinary, the

more prejudicial that delay is to the defendant." Id. The length of delay for speedy trial

purposes is measured from the time the defendant is arrested or formally accused. United

States v. Marion, 404 U.S. 307, 313 (1971).

Here, appellant was arrested on February 27, 2003, and his jury trial did not

commence until May 15, 2006. Therefore, more than three years elapsed from the time

appellant was arrested to the time the actual trial began. This delay is sufficient to trigger

further analysis. See Marion, 404 U.S. at 313; Zamorano, 84 S.W.3d at 649; Rangel, 980

S.W.2d at 843.

2. Reasons for the Delay

The State bears the burden of justifying the delay. Rangel, 980 S.W.2d at 843.

Courts assign different weights to different reasons for a delay. Dragoo, 96 S.W.3d at 314.
8
A deliberate attempt to delay a trial is weighed heavily against the State, while more neutral

reasons, such as negligence or overcrowded dockets, are weighed less heavily.

Zamorano, 84 S.W.3d at 649. When the record is silent regarding the reasons for the

delay, a court may presume neither a deliberate attempt on the part of the State to

prejudice the defense, nor a valid reason for the delay. Dragoo, 96 S.W.3d at 314. A valid

reason, however, justifies appropriate delay. Id.

Appellant argues that the State deliberately tried to delay his trial. Specifically,

appellant asserts that the State delayed trial in this matter to await the resolution of

appellant’s murder trial. Appellant further asserts that the United States and Texas

Constitutions do not permit the State to wait for Gaines to return from deployment in Iraq

before proceeding to trial on appellant’s offense.

In analyzing this prong of the Barker test, we must consider the conduct of both the

State and appellant. See Burgett v. State, 865 S.W.2d 594, 597 (Tex. App.–Fort Worth

1993, pet. ref’d) (“Delay caused by acts of the accused which are beyond the control of the

prosecution should not weigh against the State. In fact, a defendant may be disentitled to

the speedy trial safeguard when he has or shares responsibility.”) (citing Dickey v. Florida,

398 U.S. 30, 48 (1970); United States v. Smith, 534 F.2d 74, 75-76 (5th Cir. 1976)).

However, we must keep in mind the excessiveness of the delay because the presumption

that pretrial delay has prejudiced the accused intensifies over time. See Doggett v. United

States, 505 U.S. 647, 652 (1992).

As previously noted, appellant was arrested on February 27, 2003, indicted on April

24, 2003, and re-indicted on May 1, 2003. Appellant was appointed counsel on August 11,

2003, and later filed a motion for appointment of new counsel and his motion for speedy

trial. The trial court conducted a hearing on appellant’s motion for speedy trial on August
9
17, 2005. However, this hearing concluded when the trial court granted appellant’s request

for psychiatric evaluation. The State filed three motions for continuance, one of which was

rendered moot by the trial court’s granting of appellant’s request for psychiatric evaluation.

In its motions to continue appellant’s trial, the State sought to delay appellant’s trial in order

to procure the presence of a material witness—Gaines, the arresting officer, who was

deployed in Iraq for over two years.

Based on our review of the record, it is clear that appellant’s actions in requesting

the appointment of new counsel and his request for psychiatric evaluation contributed to

the delay. See Grayless v. State, 567 S.W.2d 216, 220 (Tex. Crim. App. 1978) (“Delays

encountered in bringing a defendant to trial who claims to be incompetent or who is

temporarily incompetent ordinarily do not infringe on the right to a speedy trial.”); see also

Holmes v. State, 938 S.W.2d 488, 491 (Tex. App.–Texarkana 1996, no pet.) (holding that

delays caused by, among other things, the appointment of new counsel “are not

chargeable against the State”). Furthermore, on appeal, appellant has not cited anything

in the record demonstrating that the State deliberately delayed appellant’s trial in attempt

to prejudice his defense. The State’s sole specified reason for filing its motions to continue

trial was to procure the presence of a material witness, which courts have held is an

appropriate justification for delaying a trial. See Barker, 407 U.S. at 531 (“Finally, a valid

reason, such as a missing witness, should serve to justify appropriate delay.”); Grayless,

567 S.W.2d at 220 (“The absence or illness of a principal witness will justify an appropriate

delay.”); see also Kelley v. Commonwealth, 17 Va. App. 540, 545-46, 439 S.E.2d 616, 619

(Va. Ct. App. 1994) (concluding that “the Commonwealth was justified in requesting a

continuance for the period in which Trooper Bacote, their primary witness, was called to

military duty in the Persian Gulf”). And, even if the State delayed appellant’s trial to await
10
the resolution of his concurrent murder trial, as appellant alleges, the Texas Court of

Criminal Appeals has held “[t]hat appellant was being prosecuted on other charges

constitutes a valid reason for the delay in bringing him to trial.” Easley v. State, 564

S.W.2d 742, 745 (Tex. Crim. App. 1978). Therefore, based on the foregoing, we conclude

that this factor weighs in favor of the State.

3. Appellant’s Assertion of His Right to a Speedy Trial

A defendant's assertion of his speedy trial right is entitled to strong evidentiary

weight in determining whether the defendant was being deprived of the right. Barker, 407

U.S. at 531-32. A defendant has some responsibility to assert his right to a speedy trial,

and his failure to do so strongly indicates that he did not really want a speedy trial. See

Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992). The manner in which a

defendant raises a speedy-trial complaint is also significant.

The record contains numerous handwritten pro se letters from appellant to the trial

court, to his appointed counsel, and to the State making passing references to his

constitutional right to a speedy trial. Appellant’s first pro se letter addressing a speedy trial

was dated March 18, 2004, and stated the following: “I’m requesting a [sic] new counsel.

One of my Texas Constitional [sic] rights is a right to a speedy trial and an [sic] effective

assistance of counsel.”9 However, appellant first filed his formal motion for speedy trial on

April 27, 2005, more than two years after his arrest. See Jones, 168 S.W.3d at 349

(holding that a delay of nine months in asserting a right to a speedy trial weighed against

9
The record dem onstrates that appellant filed his pro se March 18, 2004 letter while he was
represented by counsel. The court of crim inal appeals has held that defendants are not entitled to hybrid
representation. See Scheanette v. State, 144 S.W .3d 503, 505 n.2 (Tex. Crim . App. 2004) (citing Patrick v.
State, 906 S.W .2d 481, 498 (Tex. Crim . App. 1995) (en banc); Lockhart v. State, 847 S.W .2d 568, 569 n.1
(Tex. Crim . App. 1992) (en banc)) (explaining that under Texas law, appellant does not have a right to hybrid
representation). Therefore, we m ay not consider appellant’s March 18, 2004 letter. See id.
11
the defendant). Furthermore, appellant’s actions in requesting the appointment of new

counsel and a psychiatric evaluation appear to undermine his desire for a speedy trial,

considering these acts served to elongate the delay. Appellant’s request for psychiatric

evaluation is particularly troubling within the context of the speedy-trial analysis because

this request effectively concluded the hearing conducted on his motion for speedy trial and,

therefore, prevented the trial court from resolving this issue at that time. Given that: (1)

appellant first filed his formal motion for speedy trial more than two years after his arrest;

(2) he is not entitled to hybrid representation; and (3) he requested the appointment of new

counsel and a psychiatric evaluation, both of which served to elongate the delay, we

conclude that this factor weighs in favor of the State. See id.

4. Prejudice Resulting From the Delay

Prejudice, the fourth factor, is to be considered in light of the interests that the right

to a speedy trial was designed to protect. Barker, 407 U.S. at 532. These interests include

(1) prevention of extended pre-trial incarceration, (2) minimization of anxiety over pending

charges, and (3) the prevention of actual prejudice to the defendant's ability to present a

defense. Id. "Of these forms of prejudice, 'the most serious is the last, because the

inability of a defendant adequately to prepare his case skews the fairness of the entire

system.'" Dragoo, 96 S.W.3d at 315 (quoting Barker, 407 U.S. at 532).

i. Pre-Trial Incarceration and Anxiety

On appeal, appellant complains that he was worried and anxious about the

resolution of this offense and that he endured excessive pre-trial incarceration. First, we

note that appellant did not raise this concern in his motion for speedy trial. His motion

merely stated that he was prejudiced by not having the trial “on or before June 27, 2005.”

Second, we find the fact scenario in this matter to be similar to that in Kelly v. State, 163
12
S.W.3d 722 (Tex. Crim. App. 2005). In Kelly, appellant was charged with possession of

more than four grams of a controlled substance and was released on bond. Id. at 723.

Later, the State filed a motion to revoke appellant’s probation in a companion case, which

resulted in a sentence of five years’ incarceration. Id. In support of his speedy trial motion,

appellant contended that the severity of the punishment range associated with the

possession of a controlled substance offense worried him, and that he was anxious about

his inability to find work because of the time commitments imposed by the necessity of

court appearances. Id. at 724. In addressing appellant’s arguments, the Texas Court of

Criminal Appeals stated that:

And appellant’s then-existing incarceration attenuated any “Sword of
Damocles” concern about the risk of future incarceration. That risk had been
realized. Although this prosecution had the potential to add more time to that
imprisonment, it was no longer true that a dramatic life-change was hanging
over appellant’s head, and in fact, the maximum punishment he could
receive was significantly less than the sentence he was already serving. For
these reasons, the trial court could have concluded that appellant’s claims
of anxiety and loss of work, even if believed, did not weigh in his favor
because he was already incarcerated for another offense.

Id. at 728.

In the present matter, we have a similar situation. Appellant was already serving a

life sentence for a manslaughter conviction. The maximum punishment facing appellant

for the DWI offense—twenty years—was significantly less than the sentence that he was

already serving. Appellant testified that he believed that the manslaughter conviction

would be reversed due to lack of evidence. However, appellant’s statement as to the

success of his appeal in the manslaughter case is speculative and is not supported by the

record. Therefore, because he was already serving a life sentence for his manslaughter

conviction, we conclude that appellant’s concerns regarding his pre-trial incarceration were

too attenuated.
13
 At the hearing on his motion for speedy trial, appellant testified to the following with

respect to his anxiety:

Q. Now, there was some testimony last time we were here, though, that
this DWI case was causing you more anxiety than your actual
manslaughter conviction; is that true or not that you’re actually more
anxious about—

A. Well, yeah, because—yes, sir—actually—actually, I know that this
one has been causing me—the DWI has been causing me anxiety
because I know that that manslaughter charge is no good. I know
that they’re going to reverse that case. I know. I have the evidence
that shows that that sentence cannot stand, so this gentleman
intentionally withheld the DWI to see what would come about. But I
wanted a trial and I knew that if they reversed my first charge, this
man would not let me go home. He would not let me go. He would
hold it back and that’s what was really also driving me crazy at the
time, too. I didn’t know. I was like juggling “What’s going to happen,
what’s going to happen?”

Q. And you’ve had some explosive outbursts in this courtroom, you’ve
demonstrated a lot of anger and hostility?

A. Yes, sir. I’m sorry. I apologize. I apologize to the Court.

Q. Is it the continued progress of this case—or perhaps the lack of
progress in this case part of what’s causing this anxiety that we see
demonstrated in your behavior in the courtroom?

A. Yes, sir. It’s—it’s—it’s been pretty tough on me. I can’t sleep at night.
It’s driving me—it’s driving me crazy. Actually, I feel like it’s just a
conspiracy to have me convicted and keep me in prison. I don’t
want—I don’t want to have to take drugs or anything like that to keep
myself in control . . . .

With respect to the anxiety prong, the court of criminal appeals has held that:

general anxiety “is at least some evidence of the type of ‘anxiety’ that the
Supreme Court considers under the prejudice prong of Barker.” But
evidence of generalized anxiety, though relevant, is not sufficient proof of
prejudice under the Barker test, especially when it is no greater anxiety or
concern beyond the level normally associated with a criminal charge or
investigation.

Cantu v. State, 253 S.W.3d 273, 285-86 (Tex. Crim. App. 2008) (internal citations omitted).

14
Other than his generalized testimony, appellant has not directed us to anything in the

record demonstrating that he suffered from “greater anxiety or concern beyond the level

normally associated with a criminal charge or investigation.” Id. at 286. We therefore

conclude that appellant has not satisfied the anxiety prong.

ii. Appellant’s Ability to Present a Defense

With respect to his ability to present a defense, appellant notes that because of the

delay, “he forgot some details about the night of the incident.” Appellant later asserts that

“[t]he post-arrest delay in this case exceeds three years[,] and the delay was caused by the

State’s failure to bring the Appellant to trial. The court should conclude that the State did

not overcome this presumption of prejudice.” In his motion for speedy trial, appellant

stated that: “Defendant will be prejudiced should trial not be held on or before June 27,

2005, for the reason that the passage of time has made it difficult to locate potential

witnesses and for those witnesses to recall with any clarity the events that led to

defendant’s arrest.”

The court of criminal appeals has addressed the issue of memory lapses over time

with respect to a defendant’s ability to present a defense. See Munoz, 991 S.W.2d at 829.

In particular, the court has held that “Barker requires a defendant to show that ‘lapses of

memory’ are in some way ‘significant to the outcome’ of the case.” Id. (citing Doggett, 505

U.S. at 655-57 (stating that in the absence of “excessive” bad-faith or “excessive” negligent

delay by the government, a defendant usually has to show “specific prejudice” to his

defense); Barker, 407 U.S. at 534 (noting that the prejudice was “minimal” because, among

other things, the record indicated “only two very minor lapses of memory” which “were in

no way significant to the outcome”)); see United States v. Loud Hawk, 474 U.S. 302, 315-

16 (1986) (holding that the “possibility” of prejudice from “absence or loss of memory of
15
witnesses” was insufficient to support defendants’ speedy trial claims and that the passage

of time also “may make it difficult or impossible for the Government to carry [its] burden”).

Appellant has not demonstrated how the alleged memory lapses significantly affected the

outcome of the case and, therefore, hindered his ability to present a defense. In fact, the

record suggests that appellant vividly recalled the events surrounding his arrest and that,

as the State admits, “was able to contradict the testimony of the State’s witnesses.”10

Consequently, appellant has failed to adequately demonstrate that the delay hindered his

ability to present a defense.

Because appellant (1) was already serving a life sentence for manslaughter, (2)

failed to demonstrate that he suffered from greater anxiety or concern than normally

associated with a criminal conviction or investigation, and (3) did not demonstrate that the

delay impaired his ability to present a defense, we conclude that appellant has not satisfied

the prejudice prong of Barker. Therefore, this factor weighs in favor of the State.

5. Balancing the Barker Factors

The only Barker factor that clearly weighs in favor of appellant is the first factor

pertaining to the length of the delay. Because the remaining Barker factors weigh in favor

of the State, we conclude that the trial court did not err in denying appellant’s motion for

a speedy trial. Accordingly, we overrule appellant’s first issue on appeal.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

By his second issue, appellant contends that Ysassi provided ineffective assistance

of counsel. Appellant argues that Ysassi “never did anything on behalf of Appellant during

the entire time of his representation” and that Ysassi failed to (1) file any motions, (2) urge

10
Appellant adm itted at trial that his m em ory lapses as to the facts in this case were caused by prior
drug use.
16
his speedy trial demands, or (3) issue any subpoenas on his behalf, including one to a

witness later identified at a pre-trial hearing. Conversely, the State asserts that the record

does not establish Ysassi’s reasons for his conduct or inaction, and that appellant has

failed to establish that Ysassi’s performance was deficient.

A. Standard of Review

To establish ineffective assistance of counsel, appellant must show: (1) his

attorney's representation fell below an objective standard of reasonableness; and (2) there

is a reasonable probability that, but for his attorney's errors, the result of the proceeding

would have been different. See Strickland v. Washington, 466 U.S. 668, 684 (1984);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.). Whether this test has been

met is to be judged on appeal by the totality of representation, not by any isolated acts or

omissions. Jaynes, 216 S.W.3d 839 at 851. The burden rests on the appellant to prove

ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State,

9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403

(Tex. Crim. App. 1984)). Our review of counsel's representation is highly deferential, and

we will find ineffective assistance only if the appellant overcomes the strong presumption

that his counsel's conduct fell within the wide range of reasonable professional assistance.

See Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. The right to “reasonably

effective assistance of counsel” does not guarantee errorless counsel or counsel whose

competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex.

Crim. App. 1983). Moreover, the acts or omissions that form the basis of appellant's claim

of ineffective assistance must be supported by the record. Thompson, 9 S.W.3d at 814;

Jaynes, 216 S.W.3d at 851. A silent record which provides no explanation for counsel's
17
actions usually will not overcome the strong presumption of reasonable assistance.

Thompson, 9 S.W.3d at 813-14.

B. Discussion

On August 11, 2003, the trial court appointed Ysassi to represent appellant at trial.

On August 14, 2003, Ysassi filed a waiver of arraignment on behalf of appellant. In

addition, Ysassi was present at a December 10, 2004 status hearing. At this hearing,

Ysassi stated the following:

MR. YSASSI: I asked Bertha to set it, Judge, because there has been
a couple of letters mailed to me from Mr. Perez.
Currently[,] he is incarcerated in the penitentiary. He is
serving a life sentence or a hundred[-]year sentence
and he does have this felony DWI pending. Even back
in March he had written the Court asking the Court
to—for another court appointed lawyer to represent him
on the DWI. As late as maybe two or three weeks
ago[,] he wrote another letter again complaining about
every lawyer that has ever touched this case, including
myself, and I asked Bertha to put it up on a status
hearing. My understanding is that there is no trial
settings yet on the case, and he’s so dissatisfied with
me on the case—

....

MR. YSASSI: And, Judge, being that he keeps writing, I guess,
complaining, that’s the way I read that, as a
complaint—in one of them he makes it clear that he
wants another court appointed lawyer. I just don’t feel
that I can go on representing Mr. Perez. He can be
convicted of this DWI, and the first thing he’s going to
say is I’ve been asking the Court all this time for a court
appointed lawyer. So just to avoid any further problems
with Mr. Perez—

THE COURT: Okay.

[The State]: I believe the Court received a letter or a request from
the Defendant back in March of ‘04, this year, asking for
a new attorney, too.

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 At various stages in this case and his manslaughter case, appellant has been

represented by seven different attorneys, and he has asserted that each attorney failed to

properly represent him and even alleged that each of his attorneys were “in cahoots” with

the State to ensure that he remain in prison. Appellant first took issue with Ysassi’s

representation via his March 18, 2004 letter. In this letter, appellant alleged the following:

Your Honor, I have a big conflict of interest with an appointed attorney Mr.
Ysassi. I[‘]ve wrote [sic] him numberous [sic] times and I[‘]ve had my
girlfriend try to get in-touch [sic] with him also. He fails to inform me about
my felony D.W.I. He has failed to even send me appearance date copies of
my trial[;] he has failed to conduct or help prepare a defense. I’m requesting
a new counsel. One of my Texas Constitional [sic] rights is a right to a
speedy trial and an effective assistance of counsel. I have filed an
application for a new attorney.

Despite his allegations, the record shows that appellant is incorrect in stating that

Ysassi did nothing on his behalf, as shown by the filing of the waiver of arraignment and

Ysassi’s appearance at the December 10, 2004 status hearing. Furthermore, the record

is silent as to Ysassi’s alleged inaction with respect to the urging of appellant’s desire for

a speedy trial and the issuance of a subpoena to a “Mr. Alonzo.”11 See Thompson, 9

S.W.3d at 813-14; see also Walker v. State, 201 S.W.3d 841, 850 (Tex. App.–Waco 2006,

pet. ref’d) (“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.”); Jaile

v. State, 836 S.W.2d 680, 687 (Tex. App.–El Paso 1992, no pet.) (“The mere failure of

counsel to file appropriate pretrial motions shall not be categorically deemed as ineffective

assistance, and this rule applies to motions to dismiss for an alleged lack of a speedy

11
Appellant adm itted at an August 17, 2005 hearing on his m otion for a speedy trial that he had just
learned of the existence of “Mr. Alonzo” prior to the hearing; however, appellant argued that “Mr. Alonzo” could
be a m aterial witness to his case. Appellant also adm itted that “Mr. Alonzo” was arrested at the sam e tim e
he was and that “Mr. Alonzo” was also charged with felony DW I. Appellant later testified that “Mr. Alonzo” did
not rem em ber the night in question.
19
trial.”). In addition, appellant has not demonstrated how, but for Ysassi’s alleged errors,

the result of the proceeding would have been different. See Strickland, 466 U.S. at 684.

We therefore conclude that appellant has failed to overcome the strong presumption of

reasonable assistance. See Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813-14;

Jaynes, 216 S.W.3d at 851. Accordingly, we overrule appellant’s second issue.

IV. CONCLUSION

Having overruled both of appellant’s issues on appeal, we affirm the judgment of the

trial court.

DORI CONTRERAS GARZA,
Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 4th day of December, 2008.

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