Paul Thomas Roberts v. State

IN THE TENTH COURT OF APPEALS No. 10-03-00264-CR Paul Thomas Roberts, Appellant v. The State of Texas, Appellee From the 249th District Court Johnson County, Texas Trial Court # F36662 MEMORANDUM Opinion A jury convicted Paul Thomas Roberts of evading arrest or detention in a vehicle, which was elevated to a third degree felony by a prior evading conviction. Roberts pleaded “true” to enhancement allegations, and the court sentenced him to twenty-five years’ imprisonment. Roberts contends in three issues that: (1) his constitutional right to a speedy trial was violated; (2) he should have been convicted of a state jail felony because the prior evading conviction occurred before the Legislature amended the evading statute to create the third degree offense; and (3) the admission of the judgment from the prior evading conviction was an improper comment on the evidence by the trial judge and disqualified the judge because the same judge had signed the prior judgment. We will affirm. Roberts Was Not Denied His Right To A Speedy Trial Roberts contends in his first issue that his constitutional right to a speedy trial was violated by the nine-month delay between his arrest and his trial. Because the delay was less than a year, both parties bear some responsibility for the delay, and Roberts has not shown that his defense was prejudiced by the delay, we will overrule this issue. We assess four non-exclusive factors when considering a speedy trial claim: (1) the length of the delay; (2) the reasons for the delay; (3) the timeliness of the defendant’s assertion of his right to a speedy trial; and (4) any prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972); Shaw v. State, 117 S.W.3d 883, 888-89 (Tex. Crim. App. 2003). The Supreme Court has described the first factor as “a triggering mechanism” for consideration of the remaining factors. Barker, 407 U.S. at 530, 92 S. Ct. at 2192; Shaw, 117 S.W.3d at 889. That Court has observed that a nine-month delay “may be wholly unreasonable under the circumstances.” Barker, 407 U.S. at 528, 92 S. Ct. at 2191; County v. State, 812 S.W.2d 303, 309 (Tex. Crim. App. 1989); but see Tobias v. State, 884 S.W.2d 571, 586 (Tex. App.—Fort Worth 1994, pet. ref’d) (9-month delay not “presumptively prejudicial”); Hart v. State, 818 S.W.2d 430, 437 (Tex. App.—Corpus Christi 1991, no pet.) (same). The delay in Roberts’s case was nine months. Accordingly, we consider the remaining factors. See Barker, 407 U.S. at 528, 92 S. Ct. at 2191; County, 812 S.W.2d at 309. Roberts’s trial was delayed for several reasons. Roberts was arrested in August 2002, a few days after a grand jury presented an indictment against him. Two months later, the State obtained a new indictment with an enhancement allegation. On January 30, 2003, Roberts filed a request for notice of extraneous offenses under Rule of Evidence 404(b) and article 37.07, section 3(g) of the Code of Criminal Procedure. The case was set for jury trial on March 3. The court held a pretrial hearing on the Thursday before trial. Roberts’ counsel stated at that hearing that the State had provided him everything necessary to prepare for trial but asked that the State provide him with a formal notice of its intent to offer extraneous offenses “over the weekend.” The State faxed its notice to Roberts’ counsel on the Sunday before trial at approximately 6:00 p.m.[1] Roberts filed a continuance motion on the morning of trial complaining that the State had not provided reasonably timely notice of its intent to offer the eleven extraneous offenses listed. The prosecutor reminded the trial court of Roberts’ counsel’s statements at the pretrial hearing and insisted that her notice was timely because it had been made “over the weekend.” The prosecutor also declared her intent to seek another indictment if a continuance was granted, adding another enhancement allegation and increasing the range of punishment to that for an habitual offender. The court took the continuance motion under advisement and suggested that the parties confer over the lunch hour to try to resolve the matter. When the hearing resumed, Roberts’ counsel asked the court to rule first on his contention that the extraneous offenses listed in the State’s notice were inadmissible because the notice was late. Counsel observed that a continuance would be unnecessary if the court ruled the extraneous offenses inadmissible. The court noted that the continuance motion had been the focus of the hearing when it was recessed. The prosecutor commented that she would not oppose a continuance. Defense counsel observed that he could withdraw the continuance motion and reiterated that a continuance would be unnecessary if the court ruled the extraneous offenses inadmissible. At this point, the court granted the continuance motion. Roberts’ counsel asked the court not to and stated counsel’s desire to withdraw the motion at that point. The court denied the request to withdraw the continuance motion. Roberts’ counsel argued vehemently that the admissibility of the extraneous offenses should be decided first and that the court should permit the withdrawal of the continuance motion. The court refused to do so and ultimately had Roberts’ counsel escorted from the courtroom. The State obtained another indictment against Roberts later that month, alleging two prior felony convictions to enhance his punishment to that for an habitual offender. Roberts’ counsel filed a motion to recuse the trial judge, which was referred to the presiding judge of the administrative judicial region, who granted it. Thereafter, Roberts’ case was transferred to the other district court in the county. On May 16, the court heard Roberts’ pretrial application for habeas relief premised on speedy trial grounds. After a hearing, the court refused to issue the requested writ. The parties agreed to reappear three days later for further pretrial hearings. On that date, Roberts presented his motion to set aside the indictment on speedy trial grounds. After a hearing, the court took the matter under advisement. The next morning, the court heard further argument on the motion, then denied it. Jury selection began on May 20, about nine and one-half months after Roberts’ arrest. From this review of the pretrial history of Roberts’ case, it appears that both parties bear some responsibility for the delays. Roberts first made a speedy trial claim in March, about seven months after his arrest. He repeatedly asserted his right to a speedy trial during the weeks leading up to his trial. Thus, Roberts made a timely demand for a speedy trial. The right to a speedy trial was designed: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the defendant; and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Shaw, 117 S.W.3d at 890. “Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. However, the other factors are important as well. Roberts testified that the delay caused him prejudice because he lost about $44,000 in wages, he was unable to obtain a promotion he was in line for and the resulting increase in benefits and pay, and that his family is on the verge of bankruptcy because his wife’s earnings are not adequate to pay their bills. Roberts stated that, after he was reindicted, he was “terrified,” had lost sleep, and had become physically ill. He noted that he had been married for only eighteen months and had spent half of the marriage in jail. He testified that the incarceration had been difficult for both his wife and him. Roberts’ testimony is some evidence of prejudice in the form of personal anxiety and concern. The delay was less than a year. Both parties bear some responsibility for the delay. Roberts timely asserted his right to a speedy trial. Although Roberts testified to personal anxiety and concerns brought about because of the delay, he presented no evidence that his defense was impaired in any manner by the delay. Under these circumstances, we cannot say that Roberts’ right to a speedy trial was violated by the nine-month delay. Accordingly, we overrule Roberts’ first issue. The Third Degree Charge Was Proper Roberts contends in his second issue that the State improperly elevated the evading charge to a third degree felony because his prior evading conviction occurred before the Legislature amended the statute to authorize the third degree felony charge. However, this Court has already rejected this contention in a similar case because the date of the prior conviction is not an element of the offense. Powell v. State, No. 10-02-00358-CR, 2004 Tex. App. LEXIS 9368, at *14-15 (Tex. App.—Waco Oct. 20, 2004, pet. filed) (citing State v. Mason, 980 S.W.2d 635, 641 (Tex. Crim. App. 1998); Manning v. State, 112 S.W.3d 740, 743 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)). Accordingly, we overrule Roberts’ second issue. The Trial Judge’s Signature On The Prior Judgment Is Not A Comment On The Evidence Or Testimony By The Judge And Does Not Constitutionally Disqualify The Judge Roberts contends in his third issue that the admission of the judgment for the prior evading conviction, which bears the trial judge’s signature, violates Rule of Evidence 605, article 38.05 of the Code of Criminal Procedure, and article V, section 11 of the Texas Constitution. Roberts objected to the admission of the judgment because it recited that his punishment for the prior conviction was 90 days in jail and included documents referring to a separate felony DWI prosecution. Roberts argued that the admission of the judgment violated Rules of Evidence 401, 402, 403, and 404(b) and (consistent with his second issue) that the prior evading conviction could not be used to make the present offense a third degree felony because it occurred before the Legislature amended the statute to authorize the third degree felony charge. Because Roberts did not contend at trial that the admission of the judgment violated article 38.05, he has not preserved this aspect of his third issue for our review. See Tex. R. Evid. 103(a)(1); Sharp v. State, 707 S.W.2d 611, 619 (Tex. Crim. App. 1986); Hoang v. State, 997 S.W.2d 678, 680 (Tex. App.—Texarkana 1999, no pet.); Moore v. State, 907 S.W.2d 918, 921 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d). Conversely, claims under Rule 605 and article V, section 11 may be raised for the first time on appeal. See Tex. R. Evid. 605 (“No objection need be made in order to preserve the point.”); Johnson v. State, 869 S.W.2d 347, 349 (Tex. Crim. App. 1994) (disqualification under art. V, § 11 may be raised at any time); Madden v. State, 911 S.W.2d 236, 240 (Tex. App.­—Waco 1995, pet. ref’d) (same). Rule 605 provides in pertinent part that “[t]he judge presiding at the trial may not testify in that trial as a witness.” Tex. R. Evid. 605. This rule means that a presiding judge “may not ‘step down from the bench’ and become a witness in the very same proceeding over which he is currently presiding.” Hensarling v. State, 829 S.W.2d 168, 170 (Tex. Crim. App. 1992); George v. State, 20 S.W.3d 130, 140-41 (Tex. App.­—Houston [14th Dist.] 2000, pet. ref’d); accord Franks v. State, 90 S.W.3d 771, 780-81 (Tex. App.­—Fort Worth 2002, no pet.). Here, the trial judge did not “step down from the bench” and testify from the witness stand. Accordingly, no violation of Rule 605 is shown. See id. Article V, section 11 provides in pertinent part: No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case. Tex. Const. art. V, § 11. Roberts does not contend that the trial judge has any personal interest in his case, that he is related to any of the parties or attorneys in the case, or that he has previously served as counsel in the case. Thus, no disqualification under article V, section 11 is shown. Accordingly, we overrule Roberts’ third issue. We affirm the judgment. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs only in the judgment affirming Roberts’s conviction) Affirmed Opinion delivered and filed January 5, 2005 Do not publish [CRPM] [1] Much of the information regarding the pretrial hearing is taken from statements of counsel in the hearing on Roberts’s continuance motion, a transcription of which Roberts attached to his motion to set aside the indictment for violation of his right to a speedy trial. See Santallan v. State, 922 S.W.2d 306, 308 (Tex. App.—Fort Worth 1996, pet. ref’d) (according evidentiary value to undisputed factual assertions of defense counsel in speedy trial hearing); accord Davis v. State, 130 S.W.3d 519, 521-22 (Tex. App.—Dallas 2004, no pet.).