Rene Rivera Hernandez v. State ( 2015 )

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
ii
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
iii
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.
iv
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).
v
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.
1
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
2
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.
3
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)
4
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 e-
filing on the date of the filing of the original with the Clerk of this Court.
/s/ John J. Harrity, III
John J. Harrity, III
5