COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00210-CR
MARCO MCCAIN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F16-800-431
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MEMORANDUM OPINION1
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The proceedings in the trial court, in which appellant Marco McCain
repeatedly alternated between expressing a desire to represent himself and
voicing that he wanted representation by counsel, resembled a long volley in a
tennis match. When the volley ended, McCain represented himself at trial, and a
jury convicted him of aggravated assault. In four issues on appeal that arise in
1
See Tex. R. App. P. 47.4.
part from McCain’s wavering, he contends that the trial court violated his right to
be assisted by counsel, that the trial court violated article 1.051(e) of the code of
criminal procedure by not giving his appointed (but later discharged) counsel ten
days to prepare for trial, that he sustained a violation of his constitutional right to
a speedy trial, and that the trial court abused its discretion by denying his pretrial
motion for a bond reduction. We reject these arguments and affirm the trial
court’s judgment.
Background2
In March 2016, a grand jury indicted McCain with aggravated assault. In
the indictment, the State alleged that he had caused serious bodily injury to
Lacy—a member of his household or a person with whom he had a dating
relationship—by striking her with his hand. The State also alleged that during the
assault, McCain had used his hand as a deadly weapon.
Through his initial appointed counsel, Andrew Turner, McCain filed a
motion for the trial court to reduce his $100,000 bond to $5,000. McCain alleged
that he was indigent. Following an off-the-record hearing, the trial court reduced
his bond to $75,000, but he remained confined.
2
Because McCain does not challenge the sufficiency of the evidence to
prove his guilt, we will not detail the facts leading to his conviction. In sum,
according to L.F. (whom we will refer to as Lacy), after she told McCain that she
wanted to end her dating relationship with him, he pushed her and punched her
face several times, causing a black eye, broken bones in her mouth, and the loss
of some of her teeth. Lacy spent three days in the hospital, and her injuries
required surgery and stiches.
2
Turner was the first of many attorneys appointed by the trial court to
represent McCain. In June 2016, Turner filed a motion to withdraw on the
ground of a conflict with McCain that precluded effective representation. He
informed the trial court that McCain had “indicated a strong desire that [Turner]
withdraw from the case immediately.” The trial court allowed Turner to withdraw.
The trial court appointed Andrew Lloyd to represent McCain in June 2016.
Lloyd filed one document but did not otherwise appear on McCain’s behalf. In
August 2016, the trial court substituted Josh Healy as McCain’s counsel.3 Healy
filed several motions on McCain’s behalf, including a motion for the appointment
of an investigator, which the trial court granted. Healy appeared with McCain at
an October 2016 hearing, and McCain told the trial court that he wanted Healy to
“be removed off [his] case.” The trial court denied that request and told McCain,
I need you to understand something. You have had several
attorneys now. The last time I let a lawyer off your case, I told you
this is it. Now we’re back right in the same boat. So what I want you
to understand is this: The problem is not the attorneys, it’s you. It’s
your attitude. . . .
And the fact that you have now had several different attorneys
representing you, all of which you have had personality conflicts
with, all of which have, prior to Mr. Healy, withdrawn because you
cannot take their advice, you cannot listen to them, you cannot
follow their guidance, means that the problem is with you. And it is
not going to be a problem for me. We are going to press forward
3
The record also contains an August 2016 document naming Michael
Crowder as McCain’s counsel, but the court replaced Crowder with Healy
because Crowder was “not on the Felony A List.” According to a statement that
McCain made in the trial court, Lloyd was “mysteriously taken off [his] case”;
McCain averred that he did not ask for Lloyd’s withdrawal.
3
and this case will play out however it plays out. . . . You have
competent counsel.
At the same hearing, the trial court told McCain that he could represent
himself but that he would be an “idiot” and a “fool” if he did so. The court said,
“[N]o one can competently represent themselves before a jury. It is foolish to
expect that you would.” McCain responded by reiterating that he wanted Healy
“off [his] case.” The trial court found that McCain was not competent to represent
himself and, at that time, declined to discharge Healy.
In November 2016, Healy filed a motion to withdraw; like Turner, Healy
informed the trial court that McCain wanted a different attorney and that a conflict
prevented effective communication with McCain. In an affidavit that Healy filed,
he stated that McCain was argumentative, characterized his meetings with
McCain as “adventure[s],” and informed the trial court that McCain had
repeatedly expressed that he wanted to represent himself. The trial court held
another hearing that month, at which the court again denied McCain’s requests
to discharge Healy and to represent himself. The court said,
He can’t represent himself. After sitting down in the last week and
reviewing the legal standard, he is not competent to represent
himself. He’s gonna piss a jury off just like he has pissed everybody
else off. He can’t focus on the relevant issues. . . . So I simply can’t
make findings that he is competent to represent himself[;] it will
never hold up.
In December 2016, the trial court discharged Healy and substituted Alan
Wheeler as McCain’s counsel. Wheeler filed several motions for McCain,
including another motion for the trial court to reduce his bond. Wheeler also filed
4
a motion for continuance in January 2017, asserting that he needed more time to
prepare for the January 23, 2017 trial. At the hearing on the motion for
continuance, McCain asked to represent himself. The court again denied that
request, stating,
I’ve had you in court a dozen times and you have demonstrated to
me -- in order to represent yourself and to intelligently waive
counsel, you have to demonstrate that you essentially know what
you’re doing, that you can represent yourself. You have
demonstrated to me exactly the opposite of that, that you not only
don’t know what you’re doing, but that you are going to create bigger
problems for yourself.
....
. . . [B]ased on the motions that I have seen, I do not have
confidence that [you are] capable of representing [yourself]
competently or effectively. But I certainly have not gone through the
process to make that formal finding, so I will do that at a later time if
requested to. [Emphases added.]
The trial court granted a continuance.
On January 13, 2017, through Wheeler, McCain filed a motion asking the
trial court to allow self-representation. In the motion, he “unequivocally waive[d]
his right to be represented by a lawyer.” A week later, the trial court held a
hearing on the motion.
At the hearing, Wheeler opined that McCain was “entitled to represent
himself as long as he listen[ed] to the admonishments from the Court and still
want[ed] to do it.” Wheeler also represented that McCain was mentally
competent to represent himself. Wheeler said that McCain was “knowingly,
intelligently and voluntarily waiving his right to counsel and wanting to represent
5
himself.” The trial court admonished McCain about the perils of self-
representation, telling him that he would be at a “serious disadvantage.” The
court asked him about his education (he is a junior college graduate) and about
his experience or knowledge with respect to jury trials and evidentiary rules (he
had little). The court told him that if he represented himself, the court would not
be able to assist him. The court then found that McCain was not intelligently,
knowingly, and voluntarily waiving counsel because he was “wholly unfamiliar
with the law . . . and the rules that would be applicable to him at trial.” The court
declined to discharge Wheeler.
The next month, in February 2017, the trial court held another hearing on
McCain’s request to represent himself. The court told McCain that he would be
“a complete fool to represent [himself] at trial” and that he would be expected to
pick a jury, introduce evidence, and question witnesses. The court told McCain
that representing himself would be a “bad idea.” McCain persisted in his desire
to represent himself, so the trial court signed an order discharging Wheeler and
finding that McCain had “unequivocally, intelligently[,] and knowingly waived his
right to counsel.” The court told McCain,
I can’t impress upon you how stupid you are to waive the right to
good legal counsel and represent yourself because you do not know
what you’re doing. And, unfortunately, the law says if you want to be
a fool, you can be a fool. That’s essentially what I’m convinced the
law says. So if you want to be a fool, you can be a fool. It doesn’t
mean it is not intelligent, knowing[,] and voluntary under the way that
it is described in the case law, so I’m going to let you go ahead and
do it.
6
While proceeding pro se, McCain filed several handwritten pretrial
motions, including a motion for the State to produce exculpatory and mitigating
evidence; a motion to set aside the indictment; a motion to allow for additional
motions; a motion for a bond reduction; a motion for funds for (another)
appointment of an investigator;4 a motion for the trial court to reassign his case to
another court;5 a motion for the State to disclose any agreement that it had with
the victim or with the State’s witnesses; and in both March 2017 and June 2017,
a motion for the trial court to dismiss the indictment because of an alleged
violation of his constitutional right to a speedy trial.
At a March 2017 hearing, McCain told the trial court that he was not ready
for trial. In April 2017, McCain filed a motion for continuance, asserting that he
needed more time to prepare for an April 17, 2017 trial date. The trial court held
a hearing on the motion for continuance and granted it. On the record, McCain
expressly waived his prior request for a speedy trial. At the same hearing, the
trial court denied McCain’s motion to reduce his $75,000 bond after admitting into
4
The trial court denied this motion. Appellant appealed the denial of the
motion, and we dismissed the appeal for want of jurisdiction. See McCain v.
State, No. 02-17-00091-CR, 2017 WL 2687840, at *1 (Tex. App.—Fort Worth
June 22, 2017, no pet.) (mem. op., not designated for publication).
5
The trial court requested the assignment of another judge to hear this
motion. The Honorable David L. Evans, presiding over the eighth administrative
judicial region, denied the motion to reassign. McCain then filed a motion to
recuse the trial judge. Judge Evans denied the motion to recuse and denied a
subsequent request for recusal. Another judge later denied another recusal
motion.
7
evidence an arrest-warrant affidavit that described the facts of his offense and
after McCain declined to present evidence supporting the motion. 6 The court
found that the bond amount was reasonable. The court also heard and denied
McCain’s motion to set aside his indictment.
At a hearing on June 16, 2017—the Friday before the June 19, 2017 trial
date—McCain asked the trial court to appoint new counsel. He told the court that
he had “never really wanted” to represent himself but had only wanted counsel
who would represent him “the right way.” The court granted McCain’s request
and appointed Hank Paine and Ed Nolter to represent him.
On June 19, 2017, before the trial began, McCain asked the court for a
ten-day continuance so that his new counsel could prepare for trial. When the
court denied the continuance, McCain told the court that it could “take [counsel]
off [his] case.” The following exchange occurred:
THE DEFENDANT: I’ll proceed representing myself, sir.
....
THE COURT: So you do not wish to be represented by Mr.
Paine or Mr. Nolter?
THE DEFENDANT: No, sir.
THE COURT: And just to be clear, you understand the Court
is not going to change its mind during trial, if you change your mind
again, and try to drag them back down here?
THE DEFENDANT: Yes, sir.
6
During the hearing, the State informed the trial court that McCain was
serving a five-year sentence on a different offense.
8
THE COURT: You understand that all of the limitations, the
disadvantages that I have previously discussed with you with respect
to representing yourself are still gonna apply. That is, I’ve made it
crystal clear to you that I think it’s a bad idea and you are going to
be in a poor position to represent yourself effectively at trial.
However, you have the absolute right to do so. And if you persist in
expressing your desire to represent yourself, I have to let you.
Doesn’t mean I think it’s a good idea, but you will be permitted to do
so. You understand that?
THE DEFENDANT: Yes, sir.
....
THE COURT: . . . Bottom line is, you are ill-equipped to
represent yourself and I think it is extremely foolish. I think it would
be virtually guaranteeing a worse result for you at trial than having
the benefit of counsel.
....
. . . [E]ven without the benefit of advance opportunity to
prepare the way they may want to prepare, these experienced
lawyers have a much better understanding of how a trial works, the
rules of evidence and procedure, and the ability to effectively
represent your interests than you have the ability to represent your
own without their experience and their education and their training. I
simply want a final answer.
....
THE DEFENDANT: I wish to represent myself, sir.
Representing himself again, McCain pleaded not guilty. During the trial,
McCain again asked for counsel, and the trial court denied the request. After
hearing the parties’ evidence and arguments in the guilt-innocence and
9
punishment phases of the trial,7 the jury found McCain guilty of aggravated
assault as charged in the indictment and assessed sixty years’ confinement. The
trial court sentenced him accordingly, and he brought this appeal. The trial court
found that he was indigent and appointed counsel to represent him on appeal.
Self-Representation
In his first issue, McCain presents two alternative arguments: (1) the trial
court erred by allowing his self-representation because he did not competently
and intelligently waive his right to counsel; and (2) if he did competently and
intelligently waive his right to counsel, the trial court erred by not appointing
standby counsel and by not appointing counsel upon his request at trial. The
State argues that McCain competently waived his right to counsel because he
“persisted in wanting to represent himself after being warned about the
disadvantages of self-representation . . . on numerous occasions.” The State
also contends that McCain had no right to standby counsel and that the trial court
did not err by declining to appoint counsel after trial began.
The United States Constitution guarantees a defendant the right to
assistance of counsel, but it also affords a defendant who validly waives that right
the right to represent himself.8 See Lopez v. State, 343 S.W.3d 137, 142 (Tex.
7
McCain did not question the veniremembers during voir dire. He made
opening and closing statements and cross-examined some of the State’s
witnesses, but he did not testify or call his own witnesses.
8
In his briefing on this issue, McCain relies on federal constitutional and
state constitutional and statutory provisions, but he does not argue that federal
10
Crim. App. 2011); Lathem v. State, 514 S.W.3d 796, 802 & n.9 (Tex. App.—Fort
Worth 2017, no pet.). A waiver of counsel is valid if it is made knowingly,
intelligently, and voluntarily. Cofer v. State, No. 02-16-00101-CR, 2017 WL
3821885, at *2 (Tex. App.—Fort Worth Aug. 31, 2017, no pet.) (mem. op., not
designated for publication) (citing Faretta v. California, 422 U.S. 806, 835, 95 S.
Ct. 2525, 2541 (1975)). Such a waiver is knowing and intelligent if it is made with
a “full understanding of the right to counsel being abandoned, as well as the
dangers and disadvantages of self-representation”; the waiver is voluntary if it is
not coerced. Id. (citing Faretta, 422 U.S. at 835–36, 95 S. Ct. at 2541); see
Lathem, 514 S.W.3d at 803 (“Once a defendant asserts his right of self-
representation, to ensure that this decision is constitutionally effective, a trial
court is obligated to advise the accused of the dangers and disadvantages
of self-representation.”). As we explained in Cofer,
A trial court need follow no formulaic questioning or particular script
in ascertaining the knowing and voluntary nature of a defendant’s
waiver of counsel. However, if such factors are not otherwise
apparent from the record, a trial court’s inquiry regarding the
defendant’s waiver of counsel should center on his background, age,
experience, and education. The defendant should be aware that
there are technical rules of evidence and procedure, and he will not
be granted any special consideration solely because he asserted his
pro se rights.
Cofer, 2017 WL 3821885, at *2 (citations omitted). The trial court’s inquiry is not
whether the defendant has the skill and experience necessary to represent
and state law create different standards by which we should review the issue, so
we will engage in a combined analysis of his federal and state complaints.
11
himself effectively; rather, it is whether the defendant is aware of the
disadvantages of misrepresentation and makes the choice to represent himself
with “eyes open.” See Lathem, 514 S.W.3d at 803–04. We review the trial
court’s decision to allow for self-representation for an abuse of discretion. See
Chadwick v. State, 309 S.W.3d 558, 561 (Tex. Crim. App. 2010).
The record, as detailed above, shows that the trial court ensured that
McCain made his choice of self-representation with eyes open. On several
occasions, the trial court, through direct and explicit language, told McCain about
the perils of self-representation, including that he would be required to follow
technical rules without the court’s assistance. On the final occasion in which
McCain chose self-representation, the trial court reminded McCain of those perils
and articulated why McCain would fare better with counsel:
You understand that all of the limitations, the disadvantages that I
have previously discussed with you with respect to representing
yourself are still gonna apply. That is, I’ve made it crystal clear to
you that I think it’s a bad idea and you are going to be in a poor
position to represent yourself effectively at trial. However, you have
the absolute right to do so.
....
. . . Picking a jury in this case, do you have the first idea how
you are gonna go about picking a jury? What you are going to ask
the jury? What questions you may have for them?
....
Well, these attorneys would [know how to pick a jury]. These
attorneys know the rules of evidence and procedure. And even with
no notice whatsoever, walking in here cold, they have a much better
12
opportunity to represent you than you have to represent yourself,
period. There is no question about that.
....
. . . And even talking to you four or five months ago about
needing to sit down and review the Rules of Evidence, needing to sit
down and review the Code of Criminal Procedure, needing to sit
down and figure out how one goes about selecting a jury, how many
strikes -- let me give you an example. How many strikes do you
get? How many names of jurors do you get to strike from the list
that we will give you? Do you know?
THE DEFENDANT: No, sir.
THE COURT: See, and it is not my job to tell you. That’s the
kind of thing that you are supposed to know. Bottom line is, you are
ill-equipped to represent yourself and I think it is extremely foolish. I
think it would be virtually guaranteeing a worse result for you at trial
than having the benefit of counsel.
At a prior hearing, the court also inquired about McCain’s experience and
education. Further, the trial court could have justifiably relied on the observations
of Wheeler, McCain’s former appointed counsel, who opined that McCain was
“absolutely competent” in his choice of self-representation and that McCain was
making the choice to represent himself “knowingly, intelligently[,] and voluntarily.”
Although McCain relies on the trial court’s initial rulings denying self-
representation, the record, as detailed above, indicates that the trial court
mistakenly based those preliminary rulings on its opinion concerning whether
McCain could represent himself effectively, not whether his choice to do so was
competent, intelligent, and voluntary. Cf. Godinez v. Moran, 509 U.S. 389, 399,
113 S. Ct. 2680, 2687 (1993) (explaining that the “competence that is required of
13
a defendant seeking to waive his right to counsel is the competence to waive the
right, not the competence to represent himself”); Alexander v. State, No. 02-15-
00033-CR, 2016 WL 2586602, at *3 (Tex. App.—Fort Worth May 5, 2016, pet.
ref’d) (mem. op., not designated for publication) (stating that an assessment of
the accused’s technical legal knowledge “is not relevant to a court’s analysis of
whether a defendant knowingly and intelligently exercised his right to defend
himself”).
In sum, we conclude that the record shows that McCain chose to represent
himself with a full understanding of the right to counsel being abandoned, with
knowledge of the disadvantages of self-representation, and without coercion.
See Cofer, 2017 WL 3821885, at *2. We therefore hold that his waiver of
counsel and his choice to represent himself was knowing, intelligent, voluntary,
and, therefore, valid. Id.
McCain alternatively argues that once the trial court permitted his self-
representation, the trial court erred by not appointing standby counsel. A trial
court may appoint standby counsel for a defendant who has waived his right to
counsel, but the court need not do so, and the court’s decision to not appoint
standby counsel is not reversible error. See Burgess v. State, 816 S.W.2d 424,
428 n.1 (Tex. Crim. App. 1991); Fulbright v. State, 41 S.W.3d 228, 235 (Tex.
App.—Fort Worth 2001, pet. ref’d).
Finally, McCain contends that after he waived the assistance of his last
appointed counsel and made his final choice to represent himself, the trial court
14
erred by not appointing counsel when he asked for counsel just before voir dire
began. We cannot agree. The right to counsel may not be manipulated to
obstruct the judicial process or to interfere with the administration of justice. King
v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000); see Medley v. State, 47
S.W.3d 17, 23 (Tex. App.—Amarillo 2000, pet. ref’d) (op. on reh’g) (explaining
that the “the defendant does not have the right to repeatedly alternate his
position on the right to counsel and thereby delay trial or otherwise obstruct the
orderly administration of justice”).
On the final occasion that McCain waived counsel and chose to represent
himself, the trial court informed him that it would not consider further requests to
appoint counsel. After McCain made his request for counsel before voir dire
began, the trial court stated that McCain’s vacillations on whether he wanted
counsel had already delayed the trial and that appointing new counsel would
delay the trial further because the court did not “have lawyers that just [stood]
around the courthouse waiting to be asked by a judge to come take three or four
days out of their time to try a case.” This comment indicates that Paine and
Nolter were not immediately available to again be appointed as McCain’s
counsel. The court expressly found that McCain’s late request for counsel was
made in bad faith and for the purpose of manipulating the trial process. On our
review of the record, we cannot conclude that this finding or the court’s decision
to not delay the proceedings to appoint new counsel constituted an abuse of
15
discretion.9 See Davis v. State, No. 09-15-00450-CR, 2017 WL 1953277, at *4
(Tex. App.—Beaumont May 10, 2017, no pet.) (mem. op., not designated for
publication); Glover v. State, No. 09-06-00325-CR, 2007 WL 5442525, at *7
(Tex. App.—Beaumont Aug. 27, 2008, no pet.) (mem. op., not designated for
publication).
For all of these reasons, we overrule McCain’s first issue.
Article 1.051
In his second issue, McCain asserts that the trial court violated article
1.051(e) of the code of criminal procedure by not giving Paine and Nolter,
McCain’s final appointed counsel, ten days to prepare for trial. Article 1.051(e)
states, “An appointed counsel is entitled to 10 days to prepare for a proceeding
but may waive the preparation time with the consent of the defendant in writing or
on the record in open court.” Tex. Code Crim. Proc. Ann. art. 1.051(e) (West
Supp. 2017). McCain argues that the trial court violated article 1.051(e) because
Paine and Nolter did not have ten days to prepare for trial and did not waive the
preparation time.
McCain does not, however, acknowledge the language in article 1.051(h)
that states that when a defendant withdraws a waiver of the right to counsel, the
9
McCain relies on Medley to contend that the trial court erred by not
appointing counsel upon his request before voir dire. Medley is distinguishable
because the record there reflected that counsel who had represented Medley
and who was acting as his standby counsel on the morning of trial was in the
courtroom when Medley asked for counsel and that the appointment of counsel
would not have caused delay. See 47 S.W.3d at 25.
16
trial court has “discretion [to] provide the appointed counsel 10 days to prepare.”
Tex. Code Crim. Proc. Ann. art. 1.051(h). Article 1.051(h) is an exception to
article 1.051(e)’s requirement of allowing for ten days’ preparation for appointed
counsel. Weatherly v. State, No. 13-14-00192-CR, 2015 WL 4116672, at *2
(Tex. App.—Corpus Christi July 2, 2015, no pet.) (mem. op., not designated for
publication); Barnes v. State, 921 S.W.2d 881, 884 (Tex. App.—Austin 1996, pet.
ref’d) (explaining that under article 1.051(h), the trial court’s “discretion to provide
the ten-day preparation period necessarily includes the discretion to refuse it”).
Article 1.051(h) applies here because on the Friday before the Monday
trial, McCain withdrew his waiver of the right to counsel. See Tex. Code Crim.
Proc. Ann. art. 1.051(h). Given the circumstances of their appointments, Paine
and Nolter were not entitled to ten days to prepare for trial under article
1.051(e).10 See id.; Barnes, 921 S.W.2d at 884. We conclude that the trial court
did not err by denying McCain’s request for a continuance so that his counsel
could have more time to prepare for trial, and we overrule his second issue.
Speedy Trial
In McCain’s third issue, he contends that the trial court denied his right to a
speedy trial. Federal and state constitutional provisions, along with the code of
10
Again, McCain relies only on article 1.051(e); he does not argue that the
trial court’s decision to not allow his counsel more time to prepare for trial was an
abuse of the trial court’s discretion under article 1.051(h). Even if that were
McCain’s argument, we cannot conclude that the trial court abused its discretion
under the circumstances described above.
17
criminal procedure, guarantee defendants the right to a speedy trial. See U.S.
Const. amend VI; Tex. Const. art. 1, § 10; Tex. Code Crim. Proc. Ann. art. 1.05
(West 2005). We analyze a speedy-trial complaint on an ad hoc basis by
applying the balancing test established in Barker v. Wingo, 407 U.S. 514, 530–
33, 92 S. Ct. 2182, 2192–93 (1972). See Zamorano v. State, 84 S.W.3d 643,
647–48 (Tex. Crim. App. 2002) (stating that a speedy-trial claim under the Texas
constitution is analyzed under the Barker factors).
The Barker test requires us to weigh the strength of each of the following
factors and to balance their relative weight in light of the conduct of the
prosecution and the appellant: (1) the length of the delay, (2) the reason for the
delay, (3) the circumstances surrounding the appellant’s assertion of his speedy-
trial right, and (4) the prejudice suffered by the appellant. Zamorano, 84 S.W.3d
at 647–48; Murphy v. State, 280 S.W.3d 445, 450 (Tex. App.—Fort Worth 2009,
pet. ref’d). As we explained in Murphy,
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. The defendant’s burden of proof on the latter
two factors “varies inversely” with the State’s degree of culpability for
the delay. Thus, the greater the State’s bad faith or official
negligence and the longer its actions delay a trial, the less a
defendant must show actual prejudice or prove diligence in asserting
his right to a speedy trial.
. . . Once the Barker test is triggered, courts must analyze the
speedy trial claim by first weighing the strength of each of the Barker
factors and then balancing their relative weights in light of “the
conduct of both the prosecution and the defendant.” No one factor
is either a necessary or sufficient condition to the finding of a
deprivation of the speedy trial right. Instead, the four factors are
18
related and must be considered together along with any other
relevant circumstances. . . .
Dismissal of the charging instrument with prejudice is
mandated only upon a finding that an accused’s speedy trial right
was actually violated. . . . [C]ourts 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. The
constitutional right is that of a speedy trial, not dismissal of the
charges.
280 S.W.3d at 450–51 (citations omitted). We review a trial court’s ruling on a
speedy-trial claim under a bifurcated standard: we use an abuse-of-discretion
review for a trial court’s factual determinations, and we review the court’s legal
conclusions de novo. Id. at 452.
The grand jury indicted McCain in March 2016, and his trial did not occur
until June 2017, a period of fifteen months. The State concedes on appeal that
the fifteen-month delay is sufficient to trigger our analysis of the other Barker
factors. See 407 U.S. at 530, 92 S. Ct. at 2192 (“The length of the delay is to
some extent a triggering mechanism. Until there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the other factors
that go into the balance.”).
Regarding the reason for the delay, the record does not provide a concrete
explanation for the entire period between the March 2016 indictment and
November 2016. But the record shows that McCain changed appointed counsel
several times during that period, including Turner’s withdrawal on the basis of a
conflict between the two. The trial court expressly attributed delays in the
19
proceedings to the changes of counsel and to McCain’s unmeritorious pro se
motions,11 and we cannot conclude that the trial court’s findings in that regard
were an abuse of discretion.12 Cf. Brown v. State, No. 05-97-00289-CR, 1999
WL 61858, at *9 (Tex. App.—Dallas Feb. 9, 1999, no pet.) (not designated for
publication) (“The record reflects that the reasons for the delay in this case were
either neutral or attributable to Brown’s inability to work with numerous attorneys
and his ultimate decision to represent himself.”).
Also, the record shows that the changes to McCain’s appointed counsel
(caused in part by his inability to work with them as detailed above) or his
decision to represent himself contributed to delays from November 2016, when
Healy filed his motion to withdraw as counsel, until the trial in June 2017. When
the trial court appointed Wheeler to replace Healy in December 2016, the court
had set a trial date for January 23, 2017. But McCain sought a continuance of
11
In an October 2016 hearing, the trial court said that it was trying to “push
this case forward” but that McCain was “wast[ing] time” through conflicts with
appointed counsel. Later, in another pretrial hearing, the trial court stated,
I specifically find that there have been many delays in this
case, but all of them have been caused, either directly or indirectly,
by Mr. McCain through formal motions for continuance or informally
through the repeated filing of motions that are either repetitive or
cumulative of other motions that have been filed or motions to
challenge this court’s ability to preside over the proceedings. In
short, the motion to dismiss for Speedy Trial Act violations is denied.
12
For example, the record shows that McCain first filed a motion for the
appointment of an investigator along with a motion for discovery on September
30, 2016. The trial court could have reasonably concluded that with continuity of
McCain’s counsel, such motions could have been litigated earlier in the process.
20
that trial date because Wheeler needed more time to prepare for trial. The court
reset the trial for April 2017, but McCain told the trial court that he was not ready
for trial and requested more time. In doing so, he waived his past request for a
speedy trial. In part, he requested the continuance because he had filed a civil
lawsuit against the trial judge. When the trial court reset the April 2017 trial date
to June 2017 on McCain’s request, the court stated on the record that June 2017
was the closest time on the court’s calendar that the case could be tried.
We conclude, therefore, that the record reflects McCain’s primary
responsibility for the delay, which weighs against his assertion of a violation of
his right to a speedy trial. See Murphy, 280 S.W.3d at 450; see also Smith v.
State, 436 S.W.3d 353, 366 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d)
(explaining that when a defendant “continually acquiesced in resetting his case
for trial,” his actions were “inconsistent with a demand for speedy trial”).
Next, the circumstances surrounding McCain’s request for a speedy trial
weigh against him. See id. McCain first filed a motion to dismiss for an alleged
violation of his right to a speedy trial in March 2017, but as explained above, that
was after he sought a continuance because Wheeler needed more time to
prepare for trial. He filed another motion to dismiss in June 2017, but that was
after he had asked for a continuance of the April 2017 trial date and only days
before the trial, indicating that his primary motivation at that time was dismissing
the trial, not participating in it. Cf. Parkerson v. State, 942 S.W.2d 789, 791 (Tex.
App.—Fort Worth 1997, no pet.) (“Appellant’s request for a dismissal instead of a
21
speedy trial weakens his claim because it shows a desire to have no trial instead
of a speedy trial.”). We conclude that McCain’s late requests for a speedy trial
weigh against him. See Murphy, 280 S.W.3d at 450.
Finally, concerning prejudice, McCain relies on unsworn statements in his
motions to dismiss to contend that he lost witnesses who were at one time
available but were unavailable at trial, that he felt oppressed by the lack of a
speedy trial, and that the slow pace of the proceedings made him uneasy and
doubtful about the future. But McCain does not direct us to any evidence
supporting these allegations. Cf. Mitchell v. State, No. 06-00-00055-CR, 2001
WL 1338058, at *6 (Tex. App.—Texarkana Nov. 1, 2001, pet. dism’d) (not
designated for publication) (“In his motion for a speedy trial, Mitchell claimed
prejudice from the delay due to witnesses who could no longer be located or
whose memory would be impaired due to the lapse of time and that certain
tangible evidence favorable to him would be lost or destroyed. However, there is
nothing in the record to substantiate these claims . . . .”). McCain also relies on
his lengthy pretrial confinement as evidence of prejudice. But as the State
argues, the record shows that in October 2016, McCain was sentenced to five
years’ confinement in another case, indicating that he would have remained
confined in any event.13 Cf. Vadnais v. State, No. 03-14-00578-CR, 2017 WL
13
McCain appealed his conviction leading to the five-year sentence, and
we affirmed the conviction. See McCain v. State, No. 02-16-00446-CR, 2018 WL
359803, at *4 (Tex. App.—Fort Worth Jan. 11, 2018, no pet.) (mem. op., not
designated for publication).
22
474059, at *4 (Tex. App.—Austin Jan. 31, 2017, pet. ref’d) (mem. op., not
designated for publication) (“Vadnais cannot demonstrate prejudice based on
‘oppressive pretrial incarceration’ because during most of the nine-month delay
he was incarcerated for his conviction on an unrelated felony offense.”).
Considering the Barker factors, we conclude that the trial court did not err
by denying McCain’s request for dismissal because of an alleged violation of his
right to a speedy trial. See Barker, 407 U.S. at 530–33, 92 S. Ct. at 2192–93;
Zamorano, 84 S.W.3d at 647–48. We overrule his third issue.
Denial of Pretrial Motions to Reduce Bond
Finally, in his fourth issue, McCain contends that the trial court abused its
discretion by denying his motions to reduce his $75,000 bond. “Issues
concerning pretrial bail are moot after the accused is convicted.” Myres v. State,
866 S.W.2d 673, 673 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d). Thus,
because McCain’s argument about the alleged excessiveness of his pretrial bond
amount is moot, we overrule his fourth issue. See id.; see also Serrano v. State,
No. 03-14-00516-CR, 2015 WL 6835463, at *6 (Tex. App.—Austin Nov. 6, 2015,
no pet.) (mem. op., not designated for publication) (“To the extent that Serrano is
challenging on appeal the amount of his bail, any dispute . . . became moot after
Serrano was convicted.”).
23
Conclusion
Having overruled all of McCain’s issues, we affirm the trial court’s
judgment.
/s/ Wade Birdwell
WADE BIRDWELL
JUSTICE
PANEL: WALKER, KERR, and BIRDWELL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 21, 2018
24