Stanley Deon Harper v. State

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

         No. 02-17-00016-CR
    ___________________________

  STANLEY DEON HARPER, Appellant

                     V.

         THE STATE OF TEXAS


  On Appeal from the 89th District Court
        Wichita County, Texas
       Trial Court No. 56,707-C


   Before Gabriel, Kerr, and Birdwell, JJ.
         Opinion by Justice Kerr
                                       OPINION

       After the State agreed to drop the enhancement paragraphs in exchange for

appellant Stanley Deon Harper’s guilty plea, Harper entered what the prosecutor,

defense counsel, and the trial court all referred to as an “open plea” to the offense of

aggravated assault with a deadly weapon, and the trial court sentenced him to the

maximum 20 years in prison. In three issues, Harper contends that (1) his

constitutional right to a speedy trial was violated; (2) trial counsel rendered ineffective

assistance; and (3) trial counsel’s ineffective assistance rendered his guilty plea

involuntary. Holding that we have no jurisdiction over Harper’s second and third

issues, we dismiss them. We do have jurisdiction over his first issue but overrule it and

affirm the trial court’s judgment.

I. Factual Background

      On April 5, 2015, the police received a 911 call reporting that a man named

“Stanley” was assaulting the female caller. On the 911 recording, the woman can be

heard identifying her attacker as “Stanley” numerous times. When the police arrived at

the woman’s apartment, they found her with a stab wound.

      The woman (complainant) told the police that she had been asleep and had

heard a large crash, so she got up to investigate and saw Harper, her ex-boyfriend, 1

crawling in through the (now) broken kitchen window. The complainant also told the

      1
       When later testifying for the defense, the complainant referred to Harper as
her husband.


                                            2
police that Harper proceeded to attack and stab her, after which she grabbed her

phone and called 911. Harper then took her phone and fled.

      Although the complainant told the police that Harper had stabbed her, she was

uncooperative and initially refused to be taken to the hospital. While at her apartment,

the police saw—in addition to the broken kitchen window—that her door had been

kicked in from an earlier reported incident in March 2015 that had also involved

Harper.

      Thereafter the complainant’s unwillingness to cooperate persisted. She later

maintained that she had inflicted the stab wound on herself and signed non-

prosecution affidavits.

II. Procedural Background

      In its indictment, the State alleged that Harper committed the offense of

aggravated assault with a deadly weapon. 

Tex. Penal Code Ann. § 22.02

(a)(2) (West

2011). As alleged, the offense was a second-degree felony, punishable by

imprisonment for a term between two and twenty years and a fine not to exceed

$10,000. 

Id.

 § 12.33 (West 2011), § 22.02(b). The State also alleged two prior felony

convictions in an enhancement paragraph, which, if found true, changed his

punishment range to imprisonment in the penitentiary “for life, or for any term of not

more than 99 years or less than 25 years.” Id. § 12.42(d) (West Supp. 2018).

      The State and Harper ultimately entered a plea-bargain agreement under which

the State agreed to drop the enhancement allegations and Harper agreed to plead

                                           3
guilty to aggravated assault with a deadly weapon, thus reducing his punishment range

to the milder two-to-twenty years plus a fine up to $10,000. On the actual punishment

that might be assessed within that reduced range, the State, Harper, and the trial court

all agreed that Harper was entering an “open plea.”

       After hearing evidence, the trial court sentenced Harper to 20 years in the

penitentiary and no fine. In its judgment, under the section entitled, “Terms of Plea

Agreement,” the trial court wrote, “None—Open to Court.” In the State’s brief, it

asserts that Harper “went open to the judge in return for the State dropping two

enhancement paragraphs from his indictment.” Harper’s brief says that “[i]n return

for his plea of guilt, the State dropped the felony enhancement paragraphs of the

indictment.” Nonetheless, the form entitled “Trial Court’s Certification of

Defendant’s Right of Appeal” incorrectly indicates, among the several options

available for the court to check, that Harper’s case “is not a plea-bargain case and the

defendant has the right to appeal.”

III.   No jurisdiction over issues two and three

       In issues two and three, Harper argues that trial counsel rendered ineffective

assistance by not subpoenaing the complainant, who by the time of trial was a known

exculpatory witness, and that trial counsel’s ineffective assistance rendered his guilty

plea involuntary.

       Although neither the State nor Harper discusses any jurisdictional issue, we

must independently satisfy ourselves that jurisdiction exists. See Jones v. State,

                                           

4 42 S.W.3d 143, 147

 (Tex. App.—Amarillo 2000, no pet.); see also Tex. Code Crim.

Proc. Ann. art. 44.02 (“Defendant May Appeal”) (West 2018); Tex. R. App. P.

25.2(a)(2).

       A. Article 44.02—the relevant statute

       The code of criminal procedure provides:

       A defendant in any criminal action has the right of appeal . . . , however,
       before the defendant who has been convicted upon . . . his plea of guilty
       . . . and the court, upon the election of the defendant, assesses
       punishment and the punishment does not exceed the punishment
       recommended by the prosecutor and agreed to by the defendant and his
       attorney may prosecute his appeal, he must have permission of the trial court,
       except on those matters which have been raised by written motion filed
       prior to trial. . . .
Tex. Code Crim. Proc. Ann. art. 44.02 (emphasis added).

       B. Rule 25.2(a)(2)—the relevant rule

       The applicable appellate rule provides:

       In a plea bargain case—that is, a case in which a defendant’s plea was
       guilty or nolo contendere and the punishment did not exceed the
       punishment recommended by the prosecutor and agreed to by the
       defendant—a defendant may appeal only:

              (A) those matters that were raised by written motion filed and
                  ruled on before trial, or

              (B) after getting the trial court’s permission to appeal.

Tex. R. App. P. 25.2(a)(2).




                                             5
      C. Defining an “open plea”

      Because Harper entered what everyone referred to as an “open plea,” both the

parties and the trial court effectively concluded that his appeal fell outside article

44.02 and rule 25.2(a)(2), affording him an absolute right to appeal.

      The Tyler Court of Appeals has remarked that “[t]he term ‘open plea’ is an

imprecise legal term of art. In some instances, it has been defined to involve a plea

where charge bargaining, but not sentence bargaining, has occurred.” Kassube v. State,

Nos. 12-08-00364-CR, 12-08-00365-CR, 

2010 WL 697362

, at *2 n.3 (Tex. App.—

Tyler Feb. 26, 2010, no pet.) (mem. op., not designated for publication); see 25 Am.

Jur. Trials § 69 (May 2018 Update) (“A plea agreement in which the trial court has

discretion over the length of the sentence is referred to as an ‘open plea.’” (quoting

Edsall v. State, 

983 N.E.2d 200, 204

 (Ind. App. 2013))). That is precisely how the trial

court and the parties used “open plea” in this case: one arising out of a charge

bargain. 2 In other words, in exchange for Harper’s guilty plea, the State agreed to alter

the charges against him and thus decrease the punishment range.

      But the Kassube court continued, “In other instances, [‘open plea’] has been

defined to involve a plea where no plea bargaining of any kind has occurred,” noting


      2
        At least one court has balked at using the term “open plea” to describe a
charge bargain. See Threadgill v. State, 

120 S.W.3d 871, 872

 (Tex. App.—Houston [1st
Dist.] 2003, no pet.) (“The cap was also written in the plea papers and the court’s
judgment. We hold that anything in the record indicating that there was no agreed
recommendation did not convert this proceeding into an open plea.”).


                                            6
that Black’s Law Dictionary does not define an “open plea.” 

2010 WL 697362

, at *2 n.3.

In keeping with that alternative view, one court has described it as a guilty plea

without the benefit of any agreement with the State. Zapata v. State, No. 13-08-00632-

CR, 

2010 WL 196889

, at *4 (Tex. App.—Corpus Christi Jan. 21, 2010, pet. ref’d)

(mem. op., not designated for publication) (“A cold plea is equivalent to an open plea,

which is a plea of guilty without the benefit of an agreement with the state.”

(footnotes omitted)). Years earlier, in a dissent, Judge Cochran similarly defined an

“open plea” as “a guilty plea entered without any previous agreement with the

government.” Bowie v. State, 

135 S.W.3d 55

, 69 n.11 (Tex. Crim. App. 2004) (Cochran,

J., dissenting).

       The common denominator of both types of “open plea” is that the defendant

pleads guilty without an agreement about the precise punishment he will receive—that

is, without a sentence bargain (as in, for example, pleading guilty in exchange for a five-

year prison term). The two types of “open plea” (as cases use the term) differ, though,

in that sometimes the guilty plea itself is a product of a plea bargain, and sometimes it

is not. So, unsatisfyingly, although the term “open plea” accurately conveys that a

defendant’s precise punishment is unresolved, it simultaneously obscures whether the

guilty plea itself resulted from a charge bargain.

       As noted, Black’s Law Dictionary does not define “open plea.” Kassube,

2010 WL 697362

, at *2 n.3. But Black’s does define—under the entry for “plea



                                             7
bargain”—both “charge bargain” and “sentence bargain,” two terms used in Kassube.

Id.

      D. Defining “charge bargains” and “sentence bargains”

      A charge bargain means this, “Criminal law. A plea bargain whereby a

prosecutor agrees to drop some of the counts or reduce the charge to a less serious

offense in exchange for a plea of either guilty or no contest from the defendant.”

Charge bargain, Black’s Law Dictionary (10th ed. 2014).

      A sentence bargain is different, “An agreement between a prosecutor and a

defendant whereby the defendant promises to plead guilty or no contest to the stated

charge in return for a lighter sentence. Usu. a judge must approve the bargain.”

Sentence bargain, Black’s Law Dictionary.

      E. Charge bargains, open pleas, article 44.02, and rule 25.2(a)(2)

      A sentence bargain falls easily and obviously within article 44.02’s and rule

25.2(a)(2)’s clear language. But the State and Harper reached a charge bargain, and the

record reflects that that is why they and the trial court all saw Harper’s plea as “open”:

his precise punishment had been left unresolved for the trial court to decide.

      But the fundamental question is not whether Harper entered an “open plea”

but whether article 44.02 and rule 25.2(a)(2) apply to a charge bargain. Our answer is

“yes,” because that is the answer the court of criminal appeals has given.

      Where a charge bargain effectively caps the maximum punishment, the court of

criminal appeals has held that a charge bargain falls within rule 25.2(a)(2). See Shankle

                                            8
v. State, 

119 S.W.3d 808, 813

 (Tex. Crim. App. 2003). Because the charge bargain at

issue here does precisely that, we hold that notwithstanding the fact that Harper

entered an “open plea”—that is, one in which his precise punishment was left

unresolved—article 44.02 and rule 25.2(a)(2) nevertheless apply. See 

id.

      F. No permission to appeal

      Because the trial court’s initial certification incorrectly reflected that Harper had

not entered a plea bargain, we abated the appeal to have the court sign an amended

certification. The trial court later ruled that Harper’s case was “a plea-bargain case, but

matters were raised by written motion filed and ruled on before trial and not

withdrawn or waived, and the defendant has the right to appeal.”

      For us to have jurisdiction over Harper’s second and third issues, the court had

to have chosen the particular option on the promulgated form that says it “is a plea-

bargain case, but the trial court has given permission to appeal, and the defendant has

the right of appeal.” Because the trial court did not so choose, we hold that we lack

jurisdiction over Harper’s second issue (ineffective assistance of counsel) and third

issue (involuntary plea), both of which were raised post-trial, and dismiss them. See

Griffin v. State, 

145 S.W.3d 645, 648

 (Tex. Crim. App. 2004); Woods v. State, 

108 S.W.3d 314, 315

 (Tex. Crim. App. 2003); Onkst v. State, No. 03-15-00795-CR, 

2017 WL 2628065

, at *1–2 (Tex. App.—Austin June 14, 2017, no pet.) (mem. op., not

designated for publication); Osborne v. State, No. 03-16-00802-CR, 

2017 WL 1315342

,

at *2 (Tex. App.—Austin Apr. 5, 2017, pet. ref’d) (mem. op., not designated for

                                            9
publication); Chabera v. State, No. 01-03-00630-CR, 

2004 WL 909243

, at *1 (Tex.

App.—Houston [1st Dist.] Apr. 29, 2004, no pet.) (mem. op., not designated for

publication); Ozuniga v. State, No. 04-03-00464-CR, 

2004 WL 297989

, at *1–2 (Tex.

App.—San Antonio Feb. 18, 2004, no pet.) (mem. op., not designated for

publication).

       Although neither our analysis nor our disposition is novel, we have laid out the

problem in some depth so that trial courts, prosecutors, and defense counsel can be

more attuned to this jurisdictional issue, which is one that we see fairly frequently.

IV.    Speedy Trial

       In contrast to his second and third issues, Harper’s first issue—the alleged

speedy-trial violation—addresses a matter raised by written motion filed and ruled on

before trial, a situation not requiring the trial court’s permission before raising it on

appeal. As noted earlier, the trial court’s amended certification correctly reflects this.

We will therefore address Harper’s first issue. See Tex. Code Crim. Proc. Ann.

art. 44.02; Tex. R. App. P. 25.2(a)(2); Onkst, 

2017 WL 2628065

, at *1–2 (asserting

jurisdiction over ruled-on pretrial motions and affirming). 3


       3
         Nothing in the clerk’s record or reporter’s record suggests that Harper, as part
of his plea bargain, waived his right to appeal. See Lundgren v. State, 

434 S.W.3d 594, 599

 (Tex. Crim. App. 2014) (holding that when a defendant voluntarily waives the
right to appeal to secure the benefits of a plea bargain, a later notice of appeal fails to
initiate the appellate process); Richardson v. State, Nos. 02-15-00271-CR, 02-15-00272-
CR, 

2016 WL 6900901

, at *4–5 (Tex. App.—Fort Worth Nov. 23, 2016, pet. ref’d)
(mem. op., not designated for publication) (holding defendant validly waived his right
to appeal); but see Ex parte De Leon, 

400 S.W.3d 83, 88, 90

 (Tex. Crim. App. 2013)

                                            10
       A. The record

       From start to finish, Harper’s case went from April 5, 2015, to November 30,

2016—or approximately 20 months.

       The events of 2015 show the case’s start and progression toward a possible trial

in early 2016:

   • April 5: Harper was arrested.

   • April 7: The trial court appointed William Hull Jr. to represent Harper.

   • May 6: The State procured its first indictment.

   • July 2: Hull filed a motion for speedy trial.

   • August 7: Hull filed a motion for a competency examination.

   • August 7: The trial court granted the competency-examination motion.

   • August 8: Harper filed a pro se motion for speedy trial in which he requested,
     among other relief, a dismissal.

   • August 13: The complainant filed a non-prosecution affidavit.

   • September 29: Harper’s competency evaluation was completed.

   • October 8: Harper wrote a letter to the trial judge asking about the status of his
     speedy-trial motion.

   • November 20: The State re-indicted Harper.

   • November 20: Hull filed a motion to dismiss for violating Harper’s right to a
     speedy trial.



(holding that trial court’s permission to appeal trumped waiver of right to appeal);
Alzarka v. State, 

90 S.W.3d 321

, 322–24 (Tex. Crim. App. 2002) (same).

                                           11
   • December 1: Hull filed a motion to determine Harper’s sanity.

   • December 2: The trial court signed an order to have Harper’s sanity examined.

   • December 3: The State filed its announcement that it was ready.

   • December 3: The trial court signed an order setting a pretrial conference for
     February 18, 2016.

   • December 7: The State filed a Brady-evidence notice asserting that the
     complainant had filed a non-prosecution affidavit and that the complainant had
     asserted that she was under the influence of methamphetamine and alcohol at
     the time of the offense, that she was an MHMR (mental health and mental
     retardation) patient, that Harper did not stab her, and that she stabbed herself.
     See Brady v. Maryland, 

373 U.S. 83, 87

, 

83 S. Ct. 1194

, 1196–97 (1963) (“[T]he
     suppression by the prosecution of evidence favorable to an accused upon
     request violates due process where the evidence is material either to guilt or to
     punishment, irrespective of the good faith or bad faith of the prosecution.”).

   • December 21: The complainant filed another non-prosecution affidavit.

   • December 23: Harper filed a pro se motion to dismiss for “Indictment Delay.”
     See Tex. Code Crim. Proc. Ann. art. 32.01 (West Supp. 2018).

      So by 2015’s end, Harper’s case was set for a pretrial conference on February

18, 2016. In 2016, however, Harper’s case took several unexpected turns.

   • February 12: Harper filed a pro se motion requesting new counsel. Harper stated
     that he was aware that the complainant had filed a non-prosecution affidavit
     and that she (the complainant) was upset at Hull because Hull had not yet
     gotten his case dismissed. Harper complained that Hull knew about the non-
     prosecution affidavit but did nothing to free him.

   • February 18: At the pretrial conference, Harper vacillated between keeping Hull
     and having new counsel; his dilemma was that having new counsel would mean
     a trial delay, but Harper ultimately asserted that he wanted new counsel. Also at
     this hearing, the trial court announced that it had just received the report on
     Harper’s competence and sanity and that Harper had been found both
     competent and sane.


                                         12
   • February 18: The trial court appointed Lee Ann Marsh to represent Harper and
     released Hull as Harper’s court-appointed attorney.

   • February 18: The trial court signed an order setting a pretrial conference for
     April 14, 2016.

   • March 31: Marsh, like Hull before her, filed a motion to have Harper’s sanity
     examined.

   • March 31: The trial court signed an order to have Harper examined for mental
     illness, mental retardation, or insanity at the time of the offense.

   • April 14: (The date set for the next pretrial conference in the court’s February
     18, 2016 order.) The trial court signed another pretrial conference order and
     scheduled the next pretrial conference for June 16, 2016. The trial court also
     signed an order appointing Rick Bunch and releasing Marsh as Harper’s
     counsel.

   • June 16: It is not clear what happened at the June 16, 2016 pretrial conference,
     but the case did not go to trial.

   • August 18: At a pretrial hearing, the prosecutor asserted that the previous
     defense counsel (Hull) had requested DNA testing. Harper personally agreed to
     pass the case for trial until the DNA results came back.

   • October 24: Bunch filed a speedy-trial motion to dismiss. The trial court set the
     motion for a hearing on November 17, 2016.

   • November 17: The State filed a response to Harper’s motion to dismiss.

   • November 17: The hearing on Harper’s motion to dismiss was on the record.

      By this point, Bunch asserted that Harper had been in jail 591 days—since

April 5, 2015. In response, the prosecutor asserted that the “State ha[d] always been

ready.”

      About the delays, the prosecutor explained that the DNA testing was done at

Harper’s—not the State’s—request because the State thought DNA testing was


                                         13
unnecessary and that Harper had agreed to the delays to get the DNA results. At the

hearing, the prosecutor stated that the DNA lab had indicated that it would be

another month or two before it would have the results and that at no point had

Harper asked the State to scuttle his DNA request.

       The prosecutor further explained that trial settings were passed twice because

Harper wanted to fire his attorney and that each time a new attorney got appointed,

the new attorney had to get up to speed and would file various new motions.

       In February 2016, the prosecutor had tried to negotiate with Hull, but the

negotiations went nowhere because Harper insisted that the State simply dismiss his

case. And Hull—not the State—had the case taken off the trial docket in 2015 while

everyone awaited the competency evaluation.

       On November 17, summing up her position, the prosecutor said: “I believe

there has been very little delay that is attributable to the State[,]” and added, “I believe

almost all of the delay in this case is attributable to the Defendant . . . from firing his

attorneys, from multiple repetitive psychological evaluations, and then requests for

testing that, in my opinion, would have no bearing on the case.”

       After the State asserted that it was willing to proceed without the DNA

evidence, Bunch, with Harper’s express approval, also agreed to proceed without the

DNA evidence.

       The trial court set the case for trial on November 28 and denied the motion to

dismiss.

                                            14
   • November 28: At the pretrial hearing, the trial court again denied Harper’s
     motion to dismiss for violating his right to a speedy trial and informed the
     parties that it was calling a jury on November 29, 2016.

   • November 29: On the record, the parties acknowledged that the State had agreed
     to dismiss the first and second enhancement paragraphs in exchange for
     Harper’s guilty plea. Harper signed a confession. The record shows that the
     State received the DNA results—which showed that Harper’s, the
     complainant’s, and a third person’s DNA were on the knife used to stab the
     complainant—and shared them with Bunch.

   • November 29: The court heard punishment evidence.

   • November 30: The court sentenced Harper.

       B. Standard of Review

       The Sixth Amendment to the United States Constitution guarantees the

accused’s right to a speedy trial. Zamorano v. State, 

84 S.W.3d 643, 647

 (Tex. Crim.

App. 2002); Orand v. State, 

254 S.W.3d 560, 565

 (Tex. App.—Fort Worth 2008, pet.

ref’d). In determining whether this right has been violated, courts weigh and balance

four factors: (1) length of the delay; (2) reasons for the delay; (3) assertion of the right;

and (4) prejudice to the defendant resulting from the delay. See Barker v. Wingo,

407 U.S. 514

, 530–32, 

92 S. Ct. 2182

, 2191–93 (1972) (creating test under federal

constitution); Cantu v. State, 

253 S.W.3d 273

, 280 n.16 (Tex. Crim. App. 2008) (stating

that test under Texas constitution uses same four Barker factors); see also State v. Jones,

168 S.W.3d 339

, 346–52 (Tex. App.—Dallas 2005, pet. ref’d) (applying Barker factors

to motion to dismiss for alleged speedy-trial violation).




                                             15
      Once the Barker test is triggered, courts analyze the claim by weighing the

strength of the four factors and balancing their relative weights in light of both the

State’s and the defendant’s conduct. Cantu, 

253 S.W.3d at 281

. No one Barker factor is

a necessary or sufficient condition to finding a speedy-trial violation; rather, the

factors are related, and courts should evaluate them in conjunction with any other

relevant considerations. 

Id.

      We apply a bifurcated standard of review when reviewing a trial court’s

decision on a speedy-trial claim. State v. Munoz, 

991 S.W.2d 818, 821

 (Tex. Crim. App.

1999). We review the trial court’s factual determinations for an abuse of discretion

and review de novo how it applied the law to the facts. 

Id.

      C. Discussion

             1. Length of delay: presumptively unreasonable

      We measure the delay’s length from the time the defendant is arrested or

formally accused. United States v. Marion, 

404 U.S. 307

, 321 n.12, 

92 S. Ct. 455

,

463 n.12 (1971). Unless the delay was long enough to be presumptively prejudicial, no

further inquiry is necessary. Barker, 

407 U.S. at 530

, 

92 S. Ct. at 2192

. Generally,

depending on the charged crime’s nature, courts have found post-accusation delay

presumptively prejudicial when it approaches one year. Doggett v. United States, 

505 U.S. 647

, 652 n.1, 

112 S. Ct. 2686

, 2691 n.1 (1992); Shaw v. State, 

117 S.W.3d 883, 889

 (Tex.

Crim. App. 2003).




                                           16
       Here, the delay was about a year and eight months, which is presumptively

unreasonable. See Shaw, 

117 S.W.3d at 889

. We will thus analyze the other Barker

factors.

             2. Reasons for the delay: attributable to Harper

       If a presumptively prejudicial delay has occurred, the State bears the initial

burden of justifying the delay. Emery v. State, 

881 S.W.2d 702, 708

 (Tex. Crim. App.

1994), cert. denied, 

513 U.S. 1192

 (1995). Different weights are assigned to different

reasons. Munoz, 

991 S.W.2d at 822

. A deliberate attempt to delay a trial, for example,

is weighed heavily against the State, while more neutral reasons, such as negligence or

overcrowded dockets, are still weighed against the State but less heavily. 

Id.

 If the

record is silent regarding the reason for the delay, it weighs against the State but not

heavily, because courts do not presume that the State has tried to prejudice the

defense. Dragoo v. State, 

96 S.W.3d 308, 314

 (Tex. Crim. App. 2003); Zamorano,

84 S.W.3d at 649–50.

       Harper complains that the State deliberately delayed his trial by re-indicting him

on November 20, 2015, and adding only enhancement allegations, something that he

argues could have been accomplished with a notice and that did not require a re-

indictment. See Brooks v. State, 

957 S.W.2d 30

, 33–34 (Tex. Crim. App. 1997). We

disagree that re-indicting Harper delayed his trial. As noted above, Harper’s

competency and insanity issues prevented the case from going to trial in 2015, so the



                                           17
manner in which the State added the enhancements in November 2015 played no part

in any delay.

       The delays after 2015 were similarly attributable to Harper. The February

2016 trial setting was passed because he wanted (and obtained) different counsel—

Marsh for Hull. The April 2016 trial setting appears to have been passed for the same

reason—this time Harper got Bunch for Marsh. The June 2016 trial setting appears to

have been passed for DNA-result purposes, and the August 2016 setting

unquestionably was passed for DNA reasons. Harper, not the State, wanted the DNA

testing. In October 2016, the parties were still waiting on the DNA results, and it was

only then that Harper agreed to proceed without them, so the trial was reset for

November 2016 and was resolved at that time.

       Because the delays were attributable to Harper, this factor weighs against him.

                3. The defendant’s assertion of his right: weighs in Harper’s favor

       The third Barker factor that a trial court must consider is the defendant’s

assertion of his right to a speedy trial. 

407 U.S. at 531

, 92 S. Ct. at 2192; Munoz,

991 S.W.2d at 825

. A defendant is responsible for asserting or demanding this right.

Munoz, 

991 S.W.2d at 825

. An accused’s repeated (but futile) requests for a speedy

trial weigh heavily in favor of dismissing the charge. See Murphy v. State, 

280 S.W.3d 445, 454

 (Tex. App.—Fort Worth 2009, pet. ref’d).

       Hull filed Harper’s first speedy trial motion less than three months after his

incarceration. Harper himself filed a pro se motion slightly more than a month later

                                          18
and asked about its status some two months after filing the motion. Hull then filed a

motion to dismiss in November 2015, more than seven months after Harper’s arrest.

Harper himself filed a pro se motion to dismiss in December 2015. After a hiatus

spanning several months, Bunch moved to dismiss in October 2016. The trial court

denied the motion on November 28, 2016. Harper unquestionably asserted his right,

and this factor weighs in his favor.

             4. Prejudice to the defendant resulting from the delay: no
                prejudice

       The final Barker factor examines whether and to what extent the delay has

prejudiced the defendant. Cantu, 

253 S.W.3d at 285

. Generally, three interests are

considered in determining prejudice: (1) preventing oppressive pretrial incarceration;

(2) minimizing the accused’s anxiety and concern; and (3) limiting the possibility that

the defense will be impaired. Barker, 

407 U.S. at 532

, 

92 S. Ct. at 2193

. But proof of

actual prejudice is not required when the delay is excessive, because such a delay

“presumptively compromises the reliability of a trial in ways that neither party can

prove or even identify.” Shaw, 

117 S.W.3d at 890

. If an accused can show prejudice,

the burden shifts to the State to prove that the accused suffered no serious prejudice

beyond that which ensued from ordinary and inevitable delay. Munoz, 

991 S.W.2d at 826

.

       Here, Harper appears to have been adamant about a speedy trial because he

knew that the complainant was either uncooperative or had filed non-prosecution



                                          19
affidavits. But an affidavit of non-prosecution is not a “get-out-of-jail-free card.” Such

an affidavit is nothing more than another potential evidentiary piece, and the State can

pursue a conviction notwithstanding the affidavit. See Hill v. State, 

392 S.W.3d 850, 854

 (Tex. App.—Amarillo 2013, pet. ref’d). A complainant’s non-prosecution

affidavit is comparable to a recantation, something a factfinder is fully entitled to

disbelieve or disregard. See Duarte v. State, No. 13-16-00198-CR, 

2017 WL 5184836

, at

*4 (Tex. App.—Corpus Christi Nov. 9, 2017, no pet.) (mem. op., not designated for

publication).

      On this record, the State still had (1) the complainant’s 911 call in which she

identified “Stanley” as her attacker, (2) her statements to the police that Harper

attacked and stabbed her with a knife, and (3) various means to impeach her after-the-

fact contention that she had stabbed herself, such as her initial reluctance to cooperate

with the police and her later admission that she used drugs. We note that the

complainant testified at Harper’s punishment hearing, but despite her attempts to help

him, the trial court assessed a 20-year sentence—the maximum available under the

charge bargain. We can conclude only that she did not come across as particularly

persuasive.

      Nor has Harper persuaded us that he suffered prejudice. If anything, the delays

worked to his benefit. The initial delays allowed, at his counsel’s requests, mental

health professionals to evaluate Harper’s sanity at the time of the offense and his

competence to stand trial. The later delays allowed Harper to change counsel twice

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and to get DNA evidence. And the State’s plea-bargain offer, which significantly

reduced Harper’s punishment range, did not come until the very last setting. The

record shows that Harper had 19 prior convictions, four of which were felonies. On

this record, the State’s waiving the enhancement allegations was no small concession.

             5. Holding

      Although Harper asserted his right to a speedy trial, he worked at cross-

purposes. Early delays were attributable to questions regarding his competency to

stand trial and then to his sanity when committing the offense. Harper’s twice

changing his counsel and his insisting on having DNA evidence thereafter caused

additional delays. These postponements were consistently designed to benefit or

accommodate Harper, not the State. The record also supports the conclusion that

what Harper actually sought was to avoid trial entirely by getting his case dismissed

based on the complainant’s non-prosecution affidavits. Harper, not his counsel, was

the first one to seek a dismissal in his August 2015 pro se motion for speedy trial, and

in his February 2016 pro se motion to appoint new counsel, Harper made it clear that

he wanted new counsel because his attorney had not gotten his case dismissed, not

because his counsel had failed to get his case tried. We are reluctant to rule that

Harper was denied his constitutional right on a record that suggests that he wanted no

trial at all, much less a speedy one. See Barker, 

407 U.S. at 536

, 92 S. Ct. at 2194–95.

Finally, the delay worked to Harper’s benefit: the plea-bargain he agreed to capped his

maximum sentence at five years less than what his minimum sentence would have

                                          21
been without the plea bargain if he had gone to trial and been convicted. See 

id.

 at

530–32, 92 S. Ct. at 2191–93. We hold that the trial court neither abused its discretion

factually nor erred legally by denying Harper’s motion to dismiss. See Zamorano,

84 S.W.3d at 648

; Munoz, 

991 S.W.2d at 821

.

      We overrule Harper’s first issue.

V.    Conclusion

             Having overruled Harper’s first issue and dismissed his second and third

issues, we affirm the trial court’s judgment.




                                                      /s/ Elizabeth Kerr
                                                      Elizabeth Kerr
                                                      Justice

Publish

Delivered: January 10, 2019




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