Jermar Jamie Fuller v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-20-00101-CR
___________________________

JERMAR JAMIE FULLER, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 30th District Court
Wichita County, Texas
Trial Court No. 58,156-A

Before Birdwell, Wallach, and Walker, JJ.
Opinion on Rehearing by Justice Walker
 OPINION ON REHEARING

After considering appellant Jermar Jamie Fuller’s motion for rehearing, we deny

the motion, withdraw our April 29, 2021 opinion, and substitute the following

opinion in its place. We deny Fuller’s motion for en banc reconsideration as moot.

See Brown v. State, 212 S.W.3d 851, 856 n.1 (Tex. App.—Houston [1st Dist.] 2006, pet.

ref’d) (op. on reh’g).

Fuller appeals from his capital-murder conviction, arguing in one issue that his

constitutional right to a speedy trial was violated. Although the length of the pretrial

delay was significant and the reasons for the delay weigh against the State, Fuller’s late

assertion of his right and his failure to demonstrate prejudice arising from the delay

weigh against a conclusion that Fuller’s right was violated. On balance, and viewing

the facts in a light most favorable to a finding that the right was not violated, we

affirm the trial court’s determination that Fuller’s right to a speedy trial was not

violated.

I. BACKGROUND

A. OFFENSE FACTS

Fuller does not challenge the sufficiency of the evidence to support his

conviction, but because our speedy-trial analysis considers any prejudice to his

defense arising from the pretrial delay, we will recount the facts of the offense in

broad strokes.

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 Bertilda Carpenter lived across the street from her son, Samuel Rankin. On the

evening of October 9, 2016, Carpenter heard banging noises and saw a “black guy”

running out of her son’s house. The next morning, Carpenter saw a tall, “black

gentleman” get out of a red car and go into her son’s house. The man left quickly.

Carpenter later went into her son’s house and found that her son and his friend,

David Phillips, had been shot and killed. Several 9-millimeter cartridge casings,

bullets, and two cell phones were found near the bodies. Later, forensic testing

showed that Rankin and Phillips had been killed the night before.

The same morning that Carpenter discovered that her son and Phillips had

been murdered, Trooper Jacob Roche attempted to pull over a speeding red car; the

driver evaded the stop, crashed into a brick wall, and ran from the wreck. Roche

caught the driver, who was identified as Fuller. Fuller matched the description of the

man Carpenter had seen enter her son’s house the morning after the murders. When

Roche caught him, Fuller was carrying a duffel bag with $4,000; Roche found two

guns (a loaded .380 semiautomatic pistol and an unloaded 9-millimeter pistol),

marijuana, and two cell phones (an iPhone and a “burner phone”) in the wrecked car.

The .380 semiautomatic appeared to have blood on it. Roche arrested Fuller for

unlawfully carrying a weapon, possession of a stolen firearm (the 9-millimeter), and

evading arrest; Fuller consented to a search of his two phones.

During a recorded jail call to his father, Fuller stated that the police had “got

that iron.” When he called Sierra Moore, his girlfriend, he stated that he had “f---ed

3
up” and that he might be confined “for life” because he had been “caught with that

iron.” In a later call to Moore, he repeatedly denied having anything to do with the

murders, but he also told her to text “that b---h [i.e., his other girlfriend, Shantalle

Vallier] everything must go.” Moore dutifully messaged Vallier and told her that

“Jermar is in jail. . . . He told me to tell you everything must go . . . . I guess he’s

talking about some guns.” Vallier contacted Fuller’s brother and gave him a gun that

she had found at her apartment. This gun was identified as one of Rankin’s guns.

Fuller told Vallier that he had intended to kill only one of the men but that he decided

to kill both so there would be no witnesses; Vallier, in turn, recounted this

information to the detective investigating Rankin’s and Phillips’s murders.1

Carpenter later identified the wrecked car as the car that had been parked in

front of her son’s house the morning after the murders. The cartridges and bullets

found at the crime scene were tested and they matched the 9-millimeter that had been

found in Fuller’s car. The blood on the .380 semiautomatic found in Fuller’s car

matched Phillips’s DNA. Bullets found during Rankin’s and Phillips’s autopsies were

determined to have been fired from the stolen 9-millimeter. The investigation also

revealed that Fuller’s burner phone had connected to a cell-phone tower near the

1
At trial, Vallier denied that Fuller had said this, but the investigating detective
affirmed that she had reported her conversation with Fuller to him. And after
Vallier’s denial at trial, the State introduced Vallier’s grand-jury testimony that Fuller
had told her he had shot two men.

4
crime scene both on the night of the murders and the next morning when Carpenter

had seen the red car at Rankin’s house.

B. SPEEDY-TRIAL FACTS

1. 2016

The State submitted the .380 semiautomatic for DNA testing on October 26,

2016—seventeen days after the murders. Fuller was formally arrested for capital

murder on November 1, 2016, and was indicted that December. See Tex. Penal Code

Ann. § 19.03(a)(7)(A). On December 27, 2016, the State announced it was ready for

trial. The trial court set the case for a May 14, 2018 trial. The record does not reflect

that Fuller objected to this setting. On December 29, 2016, Fuller requested that the

State produce the required discovery items. See Tex. Code Crim. Proc. Ann. art.

39.14(a).

2. 2017

In January 2017, the State disclosed to Fuller that it had “Reports” on Fuller’s

cell phones. In this disclosure, the State notified Fuller that it was his “duty . . . to

make an appointment to access and review these items.” In February 2017, Fuller

received a logical extraction report from the iPhone and photos of the burner phone’s

contents—“contacts, call details, text messages, etc.”

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 3. 2018

On March 29, 2018, the State notified Fuller that a logical extraction report was

available for the burner phone as well as for the iPhone. The State hand-delivered an

electronic copy of the extraction report to Fuller on May 22, 2018.

As the State was preparing for the May 2018 trial, the prosecutor discovered

that the DNA testing on the apparent blood found on the .380 semiautomatic, which

had been requested in October 2016, had not been completed. The prosecutor

believed that both the State and Fuller had a need for the DNA evidence:

Certainly from the State’s perspective, the potential of the victim’s blood
being contained on the firearms would be self-evident of the importance
of that. From the defense perspective, of course, it could potentially . . .
rule out the victim’s blood and also perhaps undermine the credibility of
the State’s ballistics testing.

The State contacted the lab, requested expedited DNA testing, and began “follow[ing]

up on it periodically.”

The record is unclear when the May 2018 trial setting was continued, but Fuller

first asserted his right to a speedy trial on November 13, 2018—two years after his

arrest—and requested a preferential trial setting. He argued that he had been

prejudiced because the delay had caused him “anxiety and concern.” Fuller quickly

withdrew his speedy-trial complaint after the trial court apparently agreed to

preferentially set the case for February 2019.

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 4. 2019

At a February 1, 2019 status hearing, the State recognized that the DNA testing

was still outstanding and asserted that the results could be expected in March 2019.

Both the State and Fuller represented that they were not ready for a February 2019

trial, mainly because of the outstanding DNA testing and because the district attorney

had not decided whether to seek the death penalty against Fuller. The trial court

removed the case from the February 2019 trial docket to allow for the DNA testing

and set a March 29, 2019 status hearing. Fuller had no objection to removing the case

from the February 2019 trial docket.

On February 8, 2019, the State notified the trial court that it would not seek the

death penalty. See id. art. 1.13(b); Tex. Penal Code Ann. § 12.31(a).

On March 5, 2019, while DNA results were still outstanding, Fuller reasserted

his desire for a speedy trial. He argued that because the State had decided not to seek

the death penalty, there was no obligation to test all biological evidence, obviating the

need for further delay. See Tex. Code Crim. Proc. Ann. art. 38.43(i)–(j). At the

March 29, 2019 status hearing, the State asserted that the DNA testing would be

available in June 2019. The trial court specially set the case for trial on the first

available date—October 21, 2019. Fuller did not expressly object to the October

2019 setting, but he did assert that he was “ready on this case as it currently stands.”

Apparently, all parties treated the new trial date as addressing the reasserted dismissal

motion, which no party mentioned at the status hearing, and as allowing the

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completion of the DNA testing. In any event, the trial court never expressly ruled on

the reasserted motion, and Fuller never asked that it do so.

At a July 2019 status hearing, the prosecutor warranted that the DNA testing

would be complete “no later than” August 2019, which occurred. The trial court set

another status hearing for September 13, 2019, “with the anticipation that hopefully

by that point we have an idea of at least a final confirmation of the lab issues” to give

“a better idea with regards to the current trial date and the ability to move forward at

that point.” The DNA testing was not discussed at the September 13 hearing,

presumably because all parties knew it had been completed; instead, the hearing

addressed whether Vallier’s grand jury testimony could be disclosed to Fuller.2

In late August and September 2019 and after the trial court had appointed

Lance Sloves as a defense expert on cell-phone forensic analysis,3 Fuller informed the

State that he wanted to examine the “forensic image[s]” of the cell phones. Based on

confusion about the difference between a forensic image and the previously disclosed

extraction reports,4 the prosecutor did not ask the police department about forensic

images until October 3, 2019—less than three weeks before trial.

2
The trial court ruled that the majority of her testimony could not be disclosed,
and Fuller does not challenge that ruling on appeal.
3
Fuller requested the appointment of such an expert on August 30, 2019—
shortly after the DNA testing was completed.
4
A logical extraction is a copy of a phone’s contents, excluding any application
data. A forensic image may show deleted data that a logical extraction does not.

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 On October 4, 2019, Fuller asked to continue the trial date to examine the

forensic images. At the hearing on the continuance motion, Fuller conceded that he

and the prosecutor had only recently learned that forensic images of the phones

existed and that an examination of the images would take “more than 20 days.” The

State opposed the continuance, arguing that Fuller had delayed investigating the

previously disclosed cell-phone extraction reports. The trial court continued the trial

date until March 9, 2020, and found that although the cell-phone images were

available, the State had not intentionally caused the delay. The trial court stated that

the delay had been due to “technical issues” and that the trial court had “made every

reasonable effort to ensure that [a] speedy trial right is obtained, that it was obtained,

and is still going to be obtained.”

The State determined that the forensic images had not been “maintained”

when the extraction reports had been prepared for Fuller’s cell phones. However, the

police department was able to provide the forensic images, and the State notified

Fuller on November 26, 2019, that the images were available. Fuller did not review

the images until December 20, 2019.

5. 2020

On February 11, 2020, Fuller moved to dismiss the indictment based on his

assertion of a speedy-trial violation, focusing on the State’s responsibility for the delay.

The State responded that Fuller’s dismissal request should be denied because Fuller

“acquiesced in much more than half of the delay,” Fuller “caused other delay,” Fuller

9
did not show “any prejudice arising from the delay,” and the pre-October 2019 delay

was caused by the State’s “justified pursuit of forensic DNA testing.” At the hearing

on Fuller’s motion, a jail administrator testified that although Fuller had been jailed on

the capital-murder charge since November 1, 2016, he had also been held for and

convicted of forgery and sentenced to six years’ confinement on May 16, 2018; had a

“capias pro fine for possession of marijuana under 2 ounces”; and had a “bond for

unlawful carrying of a weapon.” Based on Fuller’s motion, the State’s response, the

parties’ presented evidence, and the prior procedural history of the case, the trial court

denied the motion.

Fuller’s trial began on March 9, 2020. During trial and after the State rested its

case, Fuller “reurge[d]” his motion to dismiss and asserted that the speedy-trial

violation resulted in C. W. Hoyer being unavailable to testify because he had died on

November 22, 2017. Hoyer was a neighbor of Rankin’s who had heard gunshots on

the night of the murder, and Fuller believed he would have testified that a different

type of car, not Fuller’s, left the scene shortly thereafter:

[Fuller] expect[s] that if [Hoyer] would have been alive to testify and
would have been subpoenaed to testify in this case, . . . based on police
reports, . . . he would have testified to something of the effect of on
10/9/2016, around 2000 hours, he was sitting on the screened porch
with his next-door neighbor, heard three shots, a pause, three more
shots. He described the shots as being muffled.

About four to five minutes later, he observed a new model black
Ford pickup with shiny mag wheels heading southbound on North
Broadway. He advised the pickup truck appeared to be speeding
because it hit a dip in the intersection of North 2nd and Broadway. He

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 advised that he could tell the car was extremely clean, it had mag wheels,
because the street light was shining on the car, and it made the car stand
out. He advised the truck continued southbound towards the river.
And [Fuller expects Hoyer] would testify consistent with that police
report if he were alive and if he were subpoenaed in this case.

The trial court denied the motion.

The jury found Fuller guilty of capital murder, and the trial court sentenced

him to life confinement without the possibility of parole. See Tex. Penal Code Ann.

§ 12.31(a)(2).

II. RIGHT TO A SPEEDY TRIAL

In his appellate issue, Fuller argues that the trial court erred by denying his

dismissal motions because the State “had continual problems getting its evidence

ready for trial,” resulting in trial not being held until three years and five months after

his arrest. After discussing the applicable balancing factors, Fuller concludes that the

delay resulted in a denial of his right to a speedy trial.

A. STANDARD OF REVIEW

We review the legal components of the trial court’s denial of Fuller’s motion de

novo and the factual components for an abuse of discretion. See Cantu v. State,

253 S.W.3d 273, 282 (Tex. Crim. App. 2008); Zamorano v. State, 84 S.W.3d 643, 648

(Tex. Crim. App. 2002). Because the trial court did not enter findings of fact or

conclusions of law, and none were requested, we presume that the trial court resolved

any disputed fact issues in the State’s favor and we must defer to such presumed

findings. See State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). Our de

11
novo review, however, is governed by a well-established, four-factor balancing test

that weighs (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s

assertion of his speedy-trial right, and (4) prejudice suffered by Fuller as a result of the

delay. See Barker v. Wingo, 407 U.S. 514, 529 (1972); see also Johnson v. State, 954 S.W.2d

770, 771 (Tex. Crim. App. 1997) (“The balancing test as a whole, however, is a purely

legal question . . . reviewed de novo.”). No single factor is determinative of a speedy-

trial violation, and both the State’s and Fuller’s conduct must be weighed. See Barker,

407 U.S. at 530, 533; Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003).

The State had the burden to justify the delay; Fuller had the burden to prove

his assertion of the right and prejudice. See Barker, 407 U.S. at 531. Fuller’s burden

varies inversely with the State’s degree of culpability for the delay. See Cantu,

253 S.W.3d at 280–81.

B. BALANCING FACTORS

1. Length of the Delay

Although the length-of-delay factor is described as the first of the balancing

test, it actually operates as a gatekeeper factor: “Until there is some delay which is

presumptively prejudicial, there is no necessity for inquiry into the other factors that

go into the balance.” Barker, 407 U.S. at 530. In short, to trigger an analysis of the

other three factors, we must calculate the period of delay and determine if its length is

“presumptively prejudicial.” Id.; see Doggett v. United States, 505 U.S. 647, 651–52

(1992); Zamorano, 84 S.W.3d at 648. Our calculation begins at the time Fuller was

12
arrested and ends at the time of trial. See Zamorano, 84 S.W.3d at 648–49; State v. Page,

No. 05-18-01391-CR, 2020 WL 1899453, at *4 (Tex. App.—Dallas Apr. 17, 2020, no

pet.) (mem. op., not designated for publication). Courts generally deem a delay

approaching one year to be unreasonable enough to trigger an analysis of the

remaining Barker factors. See Balderas v. State, 517 S.W.3d 756, 768 (Tex. Crim. App.

2016).

The State concedes that the length of the delay—over three years—is sufficient

to trigger an analysis of the remaining factors. We agree that this delay goes well

beyond the minimum to trigger the remainder of the balancing test, and we conclude

that this factor weighs against the State and in favor of finding a speedy-trial violation.

See, e.g., Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); Dragoo, 96 S.W.3d

at 314; Thames v. State, No. 02-17-00295-CR, 2019 WL 237556, at *6 (Tex. App.—Fort

Worth Jan. 17, 2019, no pet.) (mem. op., not designated for publication); Mendez v.

State, 212 S.W.3d 382, 385 (Tex. App.—Austin 2006, pet. ref’d) (substituted op.).

2. State’s Justification for the Delay

Our evaluation of the second factor uses a sliding scale by which we assign

different weights to different reasons for the delay. See Barker, 407 U.S. at 531;

Balderas, 517 S.W.3d at 768. If the delay resulted from more neutral reasons—

negligence or overcrowded courts—this factor will weigh against the State but less

heavily. Barker, 407 U.S. at 531; Balderas, 517 S.W.3d at 768. If the delay resulted

from a valid reason—a missing witness—this factor will not weigh against the State.

13
Munoz, 991 S.W.2d at 822. Deliberate conduct by the State will, of course, weigh

heavily against the State. See Balderas, 517 S.W.3d at 768. In the absence of an

assigned reason, we may not presume either that the State acted deliberately to

prejudice the defense or that there was a valid reason for the delay. See id. But we do

consider whether the State or Fuller was more to blame for the delay. See id. Again,

the State bears the burden to show that the delay was justified. See Shaw, 117 S.W.3d

at 889 n.3.

Fuller does not argue that the delay was a result of deliberate conduct; instead,

he contends that the delay was due to the State’s “negligence in preparing its

evidence,” which weighs against the State but not heavily. The State argues that the

delay from November 2016 to October 2019 was a result of a DNA laboratory

backlog and of Fuller’s agreement to wait until DNA testing could be completed,

which cannot be weighed against the State.

The majority of the delay—the almost three years between the date of the

offense and the completion of DNA testing—was a result of delayed DNA-test

results. The State asserts the delay was caused by a “laboratory backlog,” but the

record is not so clear. At none of the status hearings was there evidence that a

backlog was to blame. Rather, the prosecutor stated only that the laboratory simply

had not completed the task, not that the laboratory’s work load was to blame. In fact,

the prosecutor indicated that if the State had decided to seek the death penalty against

Fuller, the laboratory would have “move[d] at a quicker speed.” In any event, the

14
three-year delay was caused by the laboratory’s not completing the testing for

whatever reason. Although the State did not check the status of the testing until

shortly before the May 2018 trial setting, there is no clear indication that the testing

would have been completed sooner if the State had checked earlier. Indeed, even

after the State began monitoring the laboratory delay, the testing was not completed

for an additional fifteen months.

The second portion of the delay—from October 2019 to the March 9, 2020

trial—was due to a dispute over the cell-phone evidence. The State disclosed that it

had reports from Fuller’s cell phones approximately three months after Fuller’s arrest.

One month later, Fuller received a logical extraction report for the iPhone and photos

of the burner phone’s contents. A year later, the State notified Fuller that a logical

extraction report was available for the burner phone as well. Seventeen months later,

Fuller requested and obtained the appointment of a forensic cell-phone expert. Fuller

then asked to examine the cell phones’ forensic images. Confused by the request, the

State did not ask the police department about the images until shortly before the

October 2019 trial date. As a result, Fuller sought to continue the trial, which was

granted over the State’s opposition until March 2020. But Fuller recognized that he

and the prosecutor had only recently discovered the existence of the forensic images,

and the trial court noted that any delay arising from the cell-phone evidence was due

to “technical issues” and not due to any bad intent by the State.

15
 We conclude that the delay in DNA testing weighs against the State but not

heavily. See, e.g., Vega-Gonzalez v. State, No. 03-19-00413-CR, 2020 WL 7051187, at *9

(Tex. App.—Austin Dec. 2, 2020, no pet.) (mem. op., not designated for publication).

A three-year delay in DNA testing when requested by the State in a murder

investigation is unreasonable. But neither can it be considered deliberate conduct by

the State. It is more akin to negligent conduct that does not weigh heavily against the

State. See, e.g., Barker, 407 U.S. at 538 (White, J., concurring); Stiles v. State, 596 S.W.3d

361, 367 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d), cert. denied, 141 S. Ct.

1266 (2021); Bertrand v. State, No. 05-14-01368-CR, 2016 WL 409665, at *2 (Tex.

App.—Dallas Feb. 3, 2016, no pet.) (mem. op., not designated for publication); State v.

Fisher, 198 S.W.3d 332, 338–39 (Tex. App.—Texarkana 2006, pet. ref’d).

The delay between Fuller’s late August 2019 request for forensic images and

the March 2020 trial was partially attributable to Fuller. See Balderas, 517 S.W.3d at

768 (citing Vermont v. Brillon, 556 U.S. 81, 90–91 (2009)); Page, 2020 WL 1899453, at

*6. See generally Dickey v. Florida, 398 U.S. 30, 48 (1970) (Brennan, J., concurring) (“A

defendant may be disentitled to the speedy-trial safeguard in the case of a delay for

which he has, or shares, responsibility. . . . [F]or example, . . . an accused cannot

sustain a speedy-trial claim when delay results from . . . making dilatory pleadings or

motions . . . .”). As the State argued at the hearing on Fuller’s motion to continue the

October 2019 trial, Fuller failed to request a cell-phone expert until August 2019. But

the State also shoulders some of the blame for this delay. The State had an

16
affirmative duty to produce the cell-phone images, which Fuller had asked for in his

2016 discovery request. See Tex. Code Crim. Proc. Ann. art. 39.14; Watkins v. State,

619 S.W.3d 265, 277–78 (Tex. Crim. App. 2021). Not only did the State fail to timely

produce the images, which the trial court found had been available, but the State also

did not “maintain[]” them after the extraction reports were prepared.

In summary, forty months elapsed between Fuller’s arrest and his trial. Thirty-

four of those months were caused by neutral reasons, which weigh against the State

but not heavily. Barker, 407 U.S. at 531. Six months weigh against neither Fuller nor

the State because of the State’s delayed production of the cell-phone images and

Fuller’s delayed request for a cell-phone expert. See Thames, 2019 WL 237556, at *8.

Even so, the majority of the delay weighs in favor of a finding that Fuller’s speedy-

trial right was violated.

3. Fuller’s Assertion of the Right

Fuller bore the burden to show that he timely asserted his right. Barker, 407

U.S. at 531. As we have recounted above, Fuller first asserted his right to a speedy

trial in November 2018—two years after his arrest—but he quickly withdrew the

argument. Fuller did not object to the trial court’s decision to remove the trial from

the February 2019 docket in order to allow completion of the DNA testing. Fuller

did not reassert his right to a speedy trial until March 2019, which led to a new trial

setting for October 2019. Fuller did not object to the trial court’s failure to explicitly

rule on the speedy-trial issue and did not clearly object to this new trial setting. Fuller

17
later sought a continuance of the October 2019 date, which was granted until March

2020, in order to review the cell-phone images that the State had not produced until

November 26, 2019. The trial court found that this delay was due to “technical

issues.” Fuller did not raise his right to a speedy trial again until February 2020—one

month before his trial date—when he moved to dismiss the indictment.

We conclude that this factor weighs against Fuller. See, e.g., Balderas, 517 S.W.3d

at 771; Smith v. State, 436 S.W.3d 353, 366 (Tex. App.—Houston [14th Dist.] 2014,

pet. ref’d); Macon v. State, No. 02-05-00195-CR, 2007 WL 79714, at *6 (Tex. App.—

Fort Worth Jan. 11, 2007, no pet.) (per curiam) (mem. op., not designated for

publication). Fuller delayed raising his right to a speedy trial, choosing instead to

agree to continue the trial in order to wait for the DNA testing. Particularly

compelling is the fact that two years passed after Fuller’s arrest before he raised the

issue for the first time. See Macon, 2007 WL 79714, at *6 (citing Kelly v. State,

163 S.W.3d 722, 730 (Tex. Crim. App. 2005)). Although it is the State’s duty to bring

a defendant to trial in a timely manner, it is the defendant’s burden to assert the right

if violated. See Cantu, 253 S.W.3d at 282. And Fuller’s final assertion of the right

sought dismissal of the indictment, which weakens his speedy-trial claim “because it

shows a desire to have no trial instead of a speedy one.” Id. at 283; see Balderas, 517

S.W.3d at 771.

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 4. Prejudice to Fuller Arising from the Delay

Prejudice to Fuller must be assayed in light of the dangers the speedy-trial right

was designed to prevent: (1) oppressive pretrial incarceration, (2) increased anxiety

and concern for the accused, and (3) impairment of the accused’s defense. See Dragoo,

96 S.W.3d at 315 (citing Barker, 407 U.S. at 532). Fuller concedes that the first two

dangers are not implicated here “because [he] was incarcerated for forgery and no

evidence was offered regarding his anxiety from the delay.” But he asserts his defense

was prejudiced by Hoyer’s death during the delay and because a police detective could

not remember “a key detail” at trial.

Fuller cannot rely on Hoyer’s death to establish prejudice. Hoyer died one year

after Fuller’s arrest and well before Fuller asserted his speedy-trial right had been

violated. The absence of Hoyer as a witness cannot be attributed to even the delay in

DNA testing. See Deeb v. State, 815 S.W.2d 692, 706 (Tex. Crim. App. 1991); Thames,

2019 WL 237556, at *10; Solano v. State, No. 12-07-00324-CR, 2009 WL 223111, at *5

(Tex. App.—Tyler Jan. 30, 2009, no pet.) (mem. op., not designated for publication).

Further, the fact that Hoyer saw a black pickup drive near the murder scene minutes

after shots had been fired had minimal evidentiary value in light of the strong

evidence of Fuller’s guilt—his confession to Vallier, a ballistics match to the 9-

millimeter found in Fuller’s car, a DNA match to the .380 semiautomatic also found

in Fuller’s car, his apparent inculpatory statements to his father and Moore, and the

fact that Fuller’s burner phone had been near the crime scene on the night of the

19
murder and the next morning when Carpenter saw Fuller’s car in front of her son’s

house. See Deeb, 815 S.W.2d at 706; Hurdsman v. State, No. 02-17-00319-CR, 2018 WL

5832116, at *8 (Tex. App.—Fort Worth Nov. 8, 2018, pet. ref’d) (mem. op., not

designated for publication).

Nor can Fuller’s reliance on the detective’s memory lapse supply the requisite

prejudice to his defense occasioned by the delay. During his investigation, Detective

Brad Love looked into Fuller’s theory of who actually committed the murders: Thor

Enbysk, a rumored member of a “white supremacy group.” Enbysk had been

offering to pay for information on the location of “Wedo”; Fuller believed Wedo was

Rankin because his street name had been Wedo. Love interviewed Enbysk and

determined that “Wedo” referred to a Warren Yoder.5 Love noted that Enbysk was

“in generally poor health” and that he had a verified alibi for the night of the murders.

The State had disclosed this information to Fuller in February 2017, before Hoyer’s

death. During Fuller’s cross-examination of Love, Love could not “recall” if he had

been able to locate anyone named Warren Yoder. Importantly, Love testified that his

investigation found no significant physical evidence tying anyone other than Fuller to

the murders.

Fuller argues that the delay in his trial resulted in Love’s forgetting whether he

had found a Warren Yoder, which he contends would have “cast doubt on . . .

5
Love stated that “Wedo” is “a pretty common street name.”

20
Enbysk’s claims that he was not involved in the murders.” Fuller never raised this

argument to the trial court before trial, after Love’s testimony, or during trial when he

again moved to dismiss the indictment at the close of the State’s case-in-chief. In

short, Fuller never informed the trial court that Love’s uncertainty about locating

Warren Yoder prejudiced his defense and, thereby, violated his right to a speedy trial.

Thus, this basis for Fuller’s assertion of prejudice was not before the trial court and

not preserved for our review. See Tex. R. App. P. 33.1(a)(1); Dragoo, 96 S.W.3d at 313;

Webb v. State, 36 S.W.3d 164, 174 n.2 (Tex. App.—Houston [14th Dist.] 2000, pet.

ref’d) (op. on reh’g). Even if Fuller had raised this argument to the trial court, the

other compelling evidence of Fuller’s guilt renders this isolated memory lapse of little

evidentiary value and does not meet Fuller’s burden to establish prejudice. Cf. Munoz,

991 S.W.2d at 829 (holding memory lapses establish prejudice only if they are shown

to be related to outcome of case).

Fuller finally contends that prejudice to his defense may be presumed here

based solely on the length of the delay. But this argument conflates the first and

fourth Barker factors. Presumptive prejudice arises in the context of the first

gatekeeper factor and dictates whether the remaining three factors must be

considered. Barker, 407 U.S. at 530. If the delay is close to a year or more, prejudice

is presumed such that the remaining factors must be considered, including prejudice

to the defense. See Doggett, 505 U.S. at 652 n.1. Even if presumptive prejudice is

found based on the length of the delay, the defendant still must establish prejudice to

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his defense in the fourth factor. See id. (“We note that, as the term is used in this

threshold context, ‘presumptive prejudice’ does not necessarily indicate a statistical

probability of prejudice; it simply marks the point at which courts deem the delay

unreasonable enough to trigger the Barker enquiry.”). Here, even though the three-

year delay is presumptively prejudicial, necessitating a review of the remaining Barker

factors, Fuller has failed to show specific prejudice to his defense arising from this

presumptively prejudicial delay.

This factor weighs against Fuller’s assertion that his speedy-trial right was

violated.

III. BALANCING CONCLUSION

Fuller waited for trial more than three years after his arrest for the murders of

Rankin and Phillips. The length of delay is presumptively prejudicial, weighing against

the State, and triggers an examination of the other speedy-trial factors. The reasons

for the delay are myriad, but the main culprit was the unreasonable amount of time

the laboratory took to test the apparent blood on the .380 semiautomatic found in

Fuller’s car. This factor weighs against the State. But Fuller did not diligently assert

his speedy-trial right and has failed to establish any prejudice to his defense arising

from the delay. These final two factors weigh against Fuller.

Viewing the evidence in the light most favorable to the trial court’s ultimate

speedy-trial ruling, deferring to the trial court’s presumed resolution of the facts, and

conducting a de novo balancing analysis, we conclude that Fuller’s right to a speedy

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trial was not violated. Accordingly, we overrule Fuller’s issue and affirm the trial

court’s judgment. See Tex. R. App. P. 43.2(a).

/s/ Brain Walker

Brian Walker
Justice

Publish

Delivered: June 3, 2021

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