Rene Rivera Hernandez v. State

ACCEPTED 14-15-00045-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 8/25/2015 5:10:45 PM CHRISTOPHER PRINE CLERK

No. 14-15-00045-CR In the COURT OF APPEALS FILED IN 14th COURT OF APPEALS For the HOUSTON, TEXAS FOURTEENTH SUPREME JUDICIAL DISTRICT 8/25/2015 5:10:45 PM At Houston CHRISTOPHER A. PRINE Clerk

Appeal in No. 11-dcr-056418 th 434 District Court of Fort Bend County, Texas

RENE RIVERA HERNANDEZ Appellant v THE STATE OF TEXAS Appellee

STATE’S APPELLATE BRIEF

Counsel for Appellee JOHN F. HEALEY DISTRICT ATTORNEY 268TH JUDICIAL DISTRICT FORT BEND COUNTY, TEXAS

JOHN J. HARRITY, III ASSISTANT DISTRICT ATTORNEY FORT BEND COUNTY, TEXAS SBN # 09133100 John.Harrity@fortbendcountytx.gov 309 South Fourth Street, 2nd floor Richmond, Texas 77469 281-341-4460 (Tel.) 281-238-3340 (Fax)

IDENTIFICATION OF PARTIES

Pursuant to Tex. R. App. P. 38.1, a complete list of the names of all interested parties is provided below so the members of this Honorable Court may at once determine whether they are disqualified to serve or should recuse themselves from participating in the decision of the case.

Appellant: Appellee: RENE RIVERA HERNANDEZ THE STATE OF TEXAS

Counsel for Appellee/State: Address(es): JOHN F. HEALEY, JR. Fort Bend County District Attorney District Attorney’s Office of Fort Bend County, Texas 301 Jackson Street, Rm 101 268TH Judicial District Richmond, Texas 77469

MARK LAFORGE (Same) Assistant District Attorney Fort Bend County, Tx. (Trial)

JOHN J. HARRITY, III (Same) Assistant District Attorney Ft. Bend County, Tx. (Appeal Only)

Counsel for Appellant: Address(es): Toni L. Sharretts 11054 North Hidden Oaks (Trial and Appeal) Conroe, Texas 77384 iceattorney@aol.com

Trial Judge: The Hon. James H. Shoemake 434th District Court of Fort Bend County, Texas

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TABLE OF CONTENTS

SECTION PAGE IDENTIFICATION OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 REPLY TO APPELLANT’S FIRST POINT OF ERROR. . . . . . . . . . . . . . . . . . . . 2 PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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INDEX OF AUTHORITIES

CASES PAGE Amador v. State, 221 S.W.3d 666, 673, 677 (Tex. Crim. App. 2007). . . . . . . . . 2, 3 Barker v. Wingo, 407 U.S. 514 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Henson v. State, 407 S.W.3d, 764, 768-69 (Tex. Crim. App. 2013), cert denied, 134 S.Ct. 934 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Newman v. State, 331 S.W.3d 447, 449 n. 5 (Tex. Crim. App. 2011). . . . . . . . . 2, 3 Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004). . . . . . . . . . . . . 2

STATUTES AND RULES

Tex. R. App. P. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT

The State does not believe oral argument is necessary in the present case. However, should the Court decide that it wants to hear oral argument in this case, the State would request that it be allowed to present oral argument.

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No. 14-15-00045-CR In the COURT OF APPEALS For the FOURTEENTH SUPREME JUDICIAL DISTRICT At Houston

Appeal in No. 11-dcr-056418 th 434 District Court of Fort Bend County, Texas

RENE RIVERA HERNANDEZ Appellant v THE STATE OF TEXAS Appellee

TO THE HONORABLE COURT OF APPEALS: STATEMENT OF THE CASE

On November 18, 2014, Appellant’s case was called for trial. (C.R. 100). A jury found Appellant guilty of the offense of aggravated assault with a deadly weapon and the same jury assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for 10 (Ten) years with a recommendation that said sentence be suspended, and a fine of $10,000. (C.R. 101).

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STATEMENT OF FACTS

The State challenges all factual assertions in the Appellant’s brief pursuant to Tex. R. App. P. 38 and submits its account of the facts as follows and within its reply to Appellant’s points of error.

SUMMARY OF THE ARGUMENT

Appellant failed to preserve his sole issue on appeal. Appellant’s complaints entitle him to no relief on appeal.

REPLY TO APPELLANT’S FIRST POINT OF ERROR

In his sole issue, appellant argues that the State violated his constitutional right to a speedy trial when tried almost six years after formal accusation. (App. Br. p. 2). Appellant makes no argument or citation to the reporter’s record where this issue was ever raised at trial. The clerk’s record on appeal including the docket sheet make no reference to any motion indicating that appellant’s complaint on appeal was ever raised at trial. On appeal, the reviewing court “can assess only the evidence that is actually in the appellate record or “was before the trial court at the time of the trial court’s ruling.” Amador v. State, 221 S.W.3d 666, 673, 677 (Tex. Crim. App. 2007). Although the rules of appellate procedure may be used to supplement the record with an omitted item, it “cannot be used to create new evidence.” Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004).

In order to review a speedy-trial claim on appeal, the appellate court evaluates and weighs a non-exhaustive list of factors, including the length of the delay, the reason for the delay, the defendant’s assertion of his speedy-trial right, and the prejudice from the alleged delay. See Newman v. State, 331 S.W.3d 447, 449 n. 5 (Tex. Crim. App. 2011)(listing the factors set out in Barker v. Wingo, 407 U.S. 514 (1972). Without a record of Appellant’s motion for speedy-trial, or the record of any *3 hearing had on the same, the reviewing court cannot evaluate the necessary factors, or whether Appellant ever filed a motion, secured a ruling or was in any way prejudiced by a violation of his right to a speedy-trial.

Appellant has failed to present a record demonstrating that he ever filed a motion for speedy-trial, much less denied his right to a speedy trial. See Newman, 331 S.W.3d at 450. Appellant bears the burden of developing and bringing forth a record on appeal to show that the trial court erred. Amador, 221 S.W.3d at 675. Even if Appellant did present a motion for speedy-trial and loses at the trial level, he still bears the burden of bringing forth the record as a reviewing court presumes that the trial court resolved any disputed fact issues in the State’s favor.

Further, the Court of Criminal Appeals held in Henson v. State, 407 S.W.3d, 764, 768-69 (Tex. Crim. App. 2013), cert denied, 134 S.Ct. 934 (2014) that a defendant must raise a speedy-trial claim in the trial court for the issue to be preserved for appeal. Appellant has failed to present a record that he ever demanded a speedy-trial at the trial court level. Appellant has failed to preserve his sole issue on appeal, that he was denied his right to a speedy-trial for appellate review. Appellant’s sole point of error should be overruled.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, it is respectfully submitted that all things are regular and that this Court find no reversible error in Appellant’s conviction, affirm the judgment and sentence in all things, and order execution of the judgment and sentence in accordance with the opinion of the Court.

Respectfully submitted, John F. Healey, Jr. District Attorney, Fort Bend County 268th Judicial District

/s/ John J. Harrity, III John J. Harrity, III Assistant District Attorney Fort Bend County, Texas SBN # 09133100 John.Harrity@fortbendcountytx.gov 301 Jackson Street, Room 101 Richmond, Texas 77469 281-341-4460 (office) 281-341-8638 (fax)

CERTIFICATE OF COMPLIANCE

This is to certify that in accordance with Texas Rule of Appellate Procedure 9.4(i)(3), this State’s Appellate Brief has been reviewed by the word count function in WordPerfect, and contains 1218 words in its entirety.

/s/ John J. Harrity, III John J. Harrity, III

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrument has been forwarded to Appellant’s attorney of record, Toni L. Sharretts, 11054 North Hidden Oaks, Conroe, Texas 77384 or via email at iceattorney@aol.com, or via efiling on the date of the filing of the original with the Clerk of this Court.

/s/ John J. Harrity, III John J. Harrity, III