Brant Alan Alsenz v. State

Opinion issued July 7, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00023-CR

———————————

Brant Alsenz , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Case No. 37913A

MEMORANDUM OPINION

Appellant

Brant Alsenz appeals an order from Fort Bend County revoking his probation on a

robbery conviction and ordering his ten-year sentence for that offense be

served consecutive to a 25-year sentence he is serving for a murder conviction

in Harris County. We affirm.

BACKGROUND

On March 2, 2004, following his

guilty plea to the second-degree felony of robbery, the Fort Bend County

District Court sentenced appellant to a 10-year probated sentence. That sentence carried several conditions,

including a prohibition on committing any other offense or using drugs. On May 6, 2004, appellant tested positive for

marihuana and, on August 4, 2004, he tested positive for marihuana and

cocaine. A sanctions hearing was held,

and appellant was placed in a rehabilitation facility for chemical-dependency

treatment on August 16, 2004. Following

his successful discharge from that program on November 15, 2004, appellant

again testified positive for drugs — cocaine and Phencyclidine — on December

15, 2004.

At a sanctions hearing on December

21, 2004, the State gave appellant the option of entering another drug-rehabilitation

program. At that hearing, appellant was

also informed that, if he declined additional treatment, the State would file a

motion to revoke his probation. He was

not taken into custody at the hearing.

On January 21, 2005, the Fort Bend

County Probation Department learned that appellant had been charged and arrested

in Harris County for murdering his girlfriend on December 31, 2004. On February 24, 2005, a motion to revoke the

appellant’s probation on his Fort Bend robbery conviction was filed in Fort

Bend County, citing as grounds (1) the Harris County murder, (2) the failed

drug tests, (3) appellant’s failure to complete community service hours and (4)

his failure to pay certain court fees, restitution, and costs.

While incarcerated in Harris

County, appellant was charged with assaulting and causing serious bodily injury

to a member of Harris County Jail’s emergency response team on July 28, 2007,

and with assaulting a Harris County Jail deputy on August 11, 2007. On October 18, 2007, an amended motion to

revoke appellant’s probation (“Amended Motion to Revoke”) was filed in Fort

Bend adding the July 2007 stabbing of jail personnel as an additional ground

supporting revocation.

On July 8, 2008, appellant pleaded

guilty in Harris County to the charge of murdering his girlfriend, and was

sentenced to 25-years’ confinement. He

was transferred to Fort Bend County on November 13, 2008 for a hearing on the

Amended Motion to Revoke. The following

day, November 14, 2008, appellant requested a lawyer be appointed to represent

him in the revocation proceedings. On

November 24, 2008, counsel was appointed. Between November 24, 2008 and June 2009, the

hearing was continued and reset six times.

On June 29, 2009, appellant filed a motion to substitute counsel, which

the court granted on July 1, 2009.

Also on July 1, 2009 — the first day of the revocation hearing — appellant’s new counsel filed a Motion and

Amended Motion for Dismissal for Failure to Provide a Speedy Trial (“Amended

Motion to Dismiss”). In this motion,

appellant argued that appellant had been prejudiced by delay because, had the

revocation hearing been held “previous to 7/08/08, defendant would have had no

murder conviction available for sentencing consideration.”

From July 1, 2009 through July 6,

2009, an associate judge held a hearing on the State’s Amended Motion to Revoke

and appellant’s Amended Motion to Dismiss.

The associate judge denied appellant’s Amended Motion to Dismiss,

granted the State’s Amended Motion to Revoke, and ordered appellant’s ten-year

sentence to be cumulative of his Harris County murder conviction sentence and,

thus, begin after his 25-year sentence is served. Appellant was credited for 632 days already served.

On July 13, 2009, appellant

appealed the associate judge’s ruling, seeking a de novo hearing with the

presiding judge. On October 26, 2009,

appellant filed a Second Amended Motion for Speedy Trial (“Second Amended

Motion to Dismiss”), again seeking dismissal or, alternatively, a sentence of

no more than five years to run concurrently with appellant’s Harris County

sentence. In this unverified motion,

appellant argued that he was prejudiced by the delay in holding a hearing on

the State’s motion to revoke.

Specifically, he claimed that he “suffered serious physical and

emotional abuse from Harris County jail guards during his 5 years plus wait”

and that this “abuse and fear of being tormented and psychically injured

culminated in an involuntary plea to the offense of murder in Harris

County.” Appellant also argued that the

death of his girlfriend was an accident, and that he and his family endured

long-term stress during his five-year incarceration under the threat of a

cumulative sentence in this case.

Finally, he complained that he could no longer locate the co-defendants

or the complainant in the underlying robbery case, who he anticipated would

testify “in mitigation on Defendant’s behalf saying that it was an impulsive

acquiescence to join in to right a perceived wrong between two parties involved

in the use of controlled substances and that Defendant was using controlled

substances at the time in question.”

According to appellant, “[b]oth would testify that the Defendant was

unarmed and just stood there at the time.”

On November 24-25, 2009, the

presiding judge held a hearing on appellant’s Second Amended Motion to Dismiss

and the State’s Amended Motion to Revoke.

A. The Trial Court’s Judgment

On November 25, 2009, the presiding judge denied

appellant’s Second Amended Motion to Dismiss, granted the State’s Amended

Motion to Revoke, and sentenced appellant to 10-years’ confinement, consecutive

to follow his 25-year Harris County sentence.

Appellant was credited for 824 days already served.

On December 18, 2009, the trial

court entered a Judgment Nunc Pro Tunc, changing the 824-day credit for time

served to “4 Years and 168 days” credited for time served.

B. This Appeal

Appellant seeks reversal of the

trial court’s revocation order through three points of error: (1) “the trial

court erred in denying appellant’s motion requesting dismissal for lack of a

speedy trial,” (2) “the trial court erred in cumulating its sentence on a

conviction lacking finality,” and (3) the trial court erred in finding the

Harris County murder conviction “sufficient legally for the culmination

order.”

Speedy Trial

In his first point of error,

appellant argues that the trial court erred by denying his motion requesting

dismissal for lack of a speedy trial. He

contends that his “pretrial incarceration period should be measured from

December 15, 2004 because of the state’s gross negligence in releasing

Appellant” after he tested positive for drug use. “The end date,” he argues, “should be

November 24, 2009 when the final hearing began” on his de novo appeal from the

associate judge’s ruling. Because this

period is almost five years, appellant argues that the delay was presumptively

unreasonable.

Appellant further asserts that “the

[S]tate provided no reason for the delays,” that “Appellant, by his actions,

asserted his rights to a speedy trial in both [the Harris County and Fort Bend]

cases,” and that he was prejudiced because he was “sentenced on the basis of

commission of murder and felony assault on a law enforcement officer . . .

instead of being sentenced on the basis of drug usage, technical violations and

the instant robbery case.”

A. Applicable law

The right to a speedy trial is

guaranteed by the Sixth Amendment of the United States Constitution and applies

to the states through the Fourteenth Amendment. Barker

v. Wingo , 407 U.S. 514, 515 , 92 S. Ct. 2182, 2184 (1972). An accused is also guaranteed the right to a

speedy trial by the Texas Constitution. Tex.

Const. art. I, § 10; see also Tex. Code Crim. Proc. Ann . art. 1.05

(Vernon 2005). Texas courts look to the

federal courts to determine constitutional rights and apply the test

articulated in Barker for a

speedy-trial analysis. Harris v. State , 827 S.W.2d 949, 956

(Tex. Crim. App. 1992). The Barker test requires a reviewing court

to balance four factors to determine whether one’s right to a speedy trial has

been violated: (1) the length of delay; (2) the reason for the delay; (3)

defendant’s timely assertion of his speedy-trial right; and (4) prejudice to

the defendant resulting from the delay. Barker , 407 U.S. at 530 , 92 S. Ct. at

2192 . As the reviewing court, in

evaluating a speedy trial claim, we review factual issues for abuse of

discretion and legal issues de novo. State v. Munoz , 991 S.W.2d 818, 821

(Tex. Crim. App. 1999).

B.

Application

1. Length of Delay

The length of the delay is

considered a “triggering mechanism” — absent a presumptively prejudicial delay, a reviewing court need not

consider the other Barker factors. Barker ,

407 U.S. at 530 , 92 S. Ct. at 2192 . The

Court of Criminal Appeals has recognized generally that delays of eight months

or longer is presumptively unreasonable, thereby triggering a speedy-trial

analysis. Harris v. State , 827 S.W.2d 949, 956 (Tex. Crim. App. 1992); see also Doggett v. United States , 505

U.S. 651 , 647 n.1, 112 S. Ct. 2686 , 2691 n.1 (1992) (holding delay

“presumptively prejudicial at least as it approaches one year”). This Court has likewise held that an eight-month

delay is presumptively unreasonable. Ervin v. State , 125 S.W.3d 542, 546

(Tex. App.—Houston [1st Dist.] 2002, no pet.).

The State argues that the relevant

period runs not from December 15, 2004 (the date he tested positive for drug

use), but instead from the date the motion to revoke was filed on February 24,

2005. It further contends that the

period would end on June 1, 2009, the date the hearing began before the

associate judge, rather than November 24, 2009 (the date of the presiding

judge’s de novo hearing). In any event,

the State concedes that the delay in this case exceeding four years “weigh[s]

against the State, but is not necessarily dispositive of this case.” We therefore evaluate appellant’s claim under

the remaining Barker factors.

2. Reason for Delay

The State bears the burden to

justify a presumptively unreasonable delay. Phillips

v. State , 650 S.W.2d 396, 400 (Tex. Crim. App. 1983). A deliberate attempt

to delay the trial to hamper the defense weighs heavily against the government.

Barker ,

407 U .S. at 531, 92 S. Ct. at 2192 .

Here, appellant was incarcerated on

murder charges in Harris County for much of the pendency of the underlying

revocation proceedings. He was sentenced

in the murder case on July 8, 2008 and transferred from Harris County to prison

facilities. He was then transported to

Fort Bend four months later, on November 13, 2008, and appointed an attorney

less than two weeks later. Appellant’s

only argument for weighing the “reason for delay” Barker factor against the State is his assertion that “with the

knowledge of drug use and Appellant’s criminal history, the state should have,

at a minimum, requested that the Appellant be placed in custody or placed in a

drug treatment facility and filed a motion to revoke on December 15,

2004.” Appellant thus insists that the

“delays should be weighed heavier on the state because of its gross negligence

in the failure to act in a reasonable manner on December 15, 2004 and

incarcerate the Appellant.”

A delay that is caused by a neutral

event, not “due to ‘a deliberate attempt to delay the trial’” should not be

weighed against the State. State v. Williams , 90 S.W.3d 913, 920

(Tex. App.—Corpus Christi 2002, no pet.) (citing Barker , 407 U.S. at 531 , 92 S.Ct. at 2182 ). At least one other court of appeals has

declined to weigh against the State time that the defendant “was free or was

confined for other charges unrelated to the current matters.” Wade v.

State , 83 S.W.3d 835, 839 (Tex. App.—Texarkana 2002, no pet.). The reason for delay in this case should

weigh only slightly, if at all, against the State.

3. Assertion of Speedy Trial Right

A defendant’s assertion of his

right to a speedy trial is entitled to strong evidentiary weight. Barker ,

407 U.S. at 531 – 32, 92 S. Ct.

at 2192 – 93. Likewise, a defendant’s failure to assert the

right to a speedy trial makes it difficult to prove that he was denied a speedy

trial. Id . at 532, 92 S. Ct. at 2193 ; Shaw v.

State , 117 S.W.3d 883, 890 (Tex. Crim. App. 2003); Dragoo v. State , 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).

Here, appellant never requested a

speedy trial. Rather, he filed a motion

to dismiss on the first day of the revocation hearing. “Filing for a dismissal instead of a speedy

trial will generally weaken a speedy-trial claim because it shows a desire to

have no trial instead of a speedy one.” Cantu

v. State , 253 S.W.3d 273, 283 (Tex. Crim. App. 2008) (citing Zamorano v. State , 84 S.W.3d 643 , 651

n.40 (Tex. Crim. App. 2002)). “Under Barker , appellant’s failure to

diligently and vigorously seek a rapid resolution is entitled to ‘strong

evidentiary weight.’” Id . at 284.

Appellant concedes that he never

filed a motion for speedy trial in the Fort Bend revocation proceedings. Nonetheless, without citation to the record,

he insists that he, “by his actions, asserted his rights to a speedy trial in

both” the Harris County and Fort Bend proceedings. Specifically, he contends that his lawyer in

his Harris County case “ignored [his] need and his verbalized strong desire for

a speedy trial.”

But similar to the defendant in Cantu , “appellant never requested a

speedy trial; he sought only an outright dismissal and tried to prove that he

acted on the desire for a speedy resolution.” 253 S.W.3d at 284 – 85. The

trial court was not presented any evidence in support of assertion that he

previously sought a speedy trial, and appellant cites none here. Appellant’s failure to ever request a speedy

trial in the Fort Bend revocation proceedings before filing a motion for

dismissal weighs heavily against appellant.

4. Prejudice Caused by the Delay

The defendant bears the burden to

make a prima facie showing of prejudice.

State v. Munoz , 991 S.W.2d

818, 826 (Tex. Crim. App. 1999). If

shown, the State must prove that “the accused suffered no serious prejudice

beyond that which ensued from the ordinary and inevitable delay.” Id .

(quoting Ex parte McKenzie , 491

S.W.2d 122, 123 (Tex. Crim. App. App. 1973)). We assess prejudice “in the light of the

interests of defendants which the speedy trial right was designed to protect”

in determining prejudice caused by the delay.

Barker , 407 U.S. at 532 , 92 S.

Ct. at 2193 . The right to a speedy trial

is designed to protect the following three interests of a defendant: (1)

prevention of oppressive pretrial incarceration; (2) minimization of anxiety

and concern of the accused; and (3) limiting the possibility of impairment of

the accused’s defense. Id . The last type of prejudice is the most

serious, although a defendant’s claim that his right to a speedy trial was

violated does not absolutely require that he demonstrate prejudice to his ability

to present a defense. Zamorano v. State ,

84 S.W.3d 643, 652 (Tex. Crim. App. 2002).

Delay does not per se prejudice a defendant. See

Barker , 407 U.S. at 521 , 92 S. Ct. at 2187 . Considering that the State bears the burden of

proof at trial, delay can be either employed or acquiesced to as a defense

tactic. Appellant argues that the delay

subjected him to oppressive pretrial incarceration in Harris County, where he alleged

that he did not receive proper medical care and was “verbally abused and tortured.” This argument, however, goes strictly to the

delay occasioned by delays in his murder trial in Harris County that were not

impacted by when his revocation hearing occurred.

In arguing that the delay caused

him to suffer anxiety and concern, appellant contends that he and his family

suffered an “unusually difficult emotional period during his incarceration in

the Harris County Jail” because (1) he would not have killed his girlfriend if

Fort Bend had him in custody after his failed drug test in December 2004; (2)

he was injured by guards in Harris County jail, causing hospitalization in one

instance; (3) his family feared for his well-being because they heard reports

of the death of a Harris County inmate around the time that appellant was

beaten by guards; (4) he would not have been falsely charged with two more

felony assaults while awaiting trial in Harris County; and (5) he would not

have suffered all of the pain and injuries had he received a speedy trial. “Evidence of generalized anxiety, though

relevant, is not sufficient proof of prejudice under the Barker test.” Cantu , 253 S.W.3d at 286 . This is especially true here, where appellant

does not identify anxiety and concern specific to the revocation proceedings in

Fort Bend County, but rather anxiety related to his confinement awaiting murder

trial in Harris County.

Specific to prejudice in Fort Bend

County, appellant argues that he was “sentenced on the basis of commission of

murder and felony assault on a law enforcement officer . . . instead of being

sentenced on the basis of drug usage, technical violations and the instant

robbery case.” This argument ignores

that the Fort Bend court could revoke his probation if the State established that

he murdered his girlfriend by a preponderance of the evidence without regard

for whether he was yet, or ever, convicted of that crime in Harris County. See, e..g. , Shaw v. State , 622 S.W.2d 862, 863

(Tex. Crim. App. 1981). Thus, had his

Fort Bend revocation hearing been held while he was in Harris County awaiting

his murder trial, that fact would not, as appellant contends, mean that his

murder and assault charges would not have been considered despite their not yet

being the subject of a conviction in Harris County.

The State argues that, rather than

prejudice his defense, appellant could reasonably have believed that delaying

the revocation until after resolution of the Harris County charges was a

reasonable strategy. Appellant concedes

as much, noting in his brief that had the Harris County case resolved itself — as he hoped — with an acquittal or, alternatively, a manslaughter or negligent homicide

conviction, “far better odds existed [that] a lesser sentence” to be served

consecutively would have been imposed in the Fort Bend revocation proceedings. Because what appellant characterizes as

prejudice from delay in the Fort Bend revocations proceedings are attributable

to his time awaiting trial on Harris County murder charge or attributable to

his own actions, we hold that appellant has not demonstrated any prejudice

caused by delay.

In sum, appellant has not

demonstrated that the trial judge’s ruling denying his motion to dismiss was

unsupported by the evidence. “From this

record, one could conclude that appellant did not really want a speedy trial;

he wanted only a dismissal” of his revocation proceedings. Cantu ,

253 S.W.3d at 286 . The fact that the

majority of the delay and prejudice claimed by appellant is related to his

Harris County murder charge rather than the Fort Bend revocation proceedings,

coupled with the fact that appellant never asserted a right to a speedy trial

before requesting dismissal on the eve of the revocation hearing, supports the

trial court’s refusal to dismiss. We

overrule appellant’s first point of error.

CUMULATING SENTENCE

In his second point of error,

appellant asserts that, because there was a habeas corpus petition pending

challenging his murder conviction at the time of the revocation hearing, this

Court should conclude that murder conviction was not final, hold that a

nonfinal conviction cannot be used to cumulate a sentence and, finally, reform

the order in this case to require appellant’s sentences to run

concurrently. See Beedy v. State , 250 S.W.3d 107, 110 (Tex. Crim. App. 2008)

(remedy for unlawful cumulation order is reformation of the judgment). In support, appellant cites Beal v. State , which holds that a

conviction on direct appeal is not final until the mandate issues for purposes of

using that conviction as a “prior conviction” enhancement in an

indictment. 91 S.W.3d 794, 796 (Tex.

Crim. App. 2002).

The State argues that Beal is inapplicable because it dealt

with an enhancement in an indictment, which is not at issue in this case. Here, appellant’s sentence was not enhanced

with the murder conviction — it was made

cumulative to his sentence for murder pursuant to article 42.08 of the Texas

Code of Criminal Procedure. That section

provides:

When the same defendant has been convicted in

two or more cases, judgment and sentence shall be pronounced in each case in

the same manner as if there had been but one conviction. Except as provided by

Sections (b) and (c) of this article, in the discretion of the court, the

judgment in the second and subsequent convictions may either be that the

sentence imposed or suspended shall begin when the judgment and the sentence

imposed or suspended in the preceding conviction has ceased to operate, or that

the sentence imposed or suspended shall run concurrently with the other case or

cases, and sentence and execution shall be accordingly.

Tex. Code Crim. Proc Ann . art.

42.08(a) (Vernon 2006).

We agree with the State. Appellant cites no authority, and we have

located none, supporting the proposition that a pending collateral attack on a

final judgment of conviction through a habeas corpus proceeding renders that

conviction not final. Nor has appellant

cited any authority extending Beal’s date-of-final-conviction

analysis to article 42.08 cumulation orders.

We overrule appellant’s second point of error.

SUFFICENCY OF THE EVIDENCE TO SUPPORT CUMULATION

Related to appellant’s second point

of error, he argues in his third point of error that the trial court abused its

discretion by ordering consecutive sentences because the alleged lack of

finality of the murder conviction renders it legally insufficient to support

the cumulation order. For the reasons we

overruled appellant’s point of error two, we overrule point of error three.

CONCLUSION

We affirm the trial court’s

judgment.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Sharp and Brown.

Do

not publish. Tex. R. App. P. 47.2( b).