KEVIN RAY HENSON, Appellant v. THE STATE OF TEXAS (Dissenting)
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD 1249 12 KEVIN RAY HENSON, Appellant v. THE STATE OF TEXAS ON APPELLANT S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY M EYERS, J., filed a dissenting opinion. DISSENTING OPINION The majority holds that a defendant must raise a speedy-trial claim in the trial court in order to preserve the issue for appellate review. The majority seems to be applying the rules of preservation to a right that is owed to the defendant even though preservation analysis is for error. Failure to request a speedy trial is not an error, thus there is nothing to preserve. If the defendant had requested a speedy trial and the request had been improperly denied then we may be dealing with error preservation, but that did not occur Henson dissent Page 2 here. We should not categorically say that a defendant cannot complain for the first time on appeal that he failed to get his constitutional right to a speedy trial. An appellant is certainly less likely to get relief if he waits until the point of appeal to raise the speedytrial issue, but failure to raise the issue at trial does not in and of itself preclude an appellant from relief.1 The right to a speedy trial is not in the category of complaints that must be preserved under Texas Rule of Appellate Procedure 33.1 by filing a request, objection, or motion in the trial court. Instead, it is waivable only and is not extinguished by inaction alone. There could be reasons that the defendant did not file a motion for a speedy trial and reasons that relief should be granted on appeal. Whether a defendant waived the right to a speedy trial must be analyzed on a case-by-case basis and waiver of the right should not be presumed unless the delay was caused by the defendant. Much like the right to a trial by jury, the record must affirmatively show that the right was consciously waived. The record here does not reflect that the defendant waived his constitutional right to a speedy trial. The court of appeals erred in concluding that Appellant s failure to file a motion for speedy trial or motion to dismiss the indictment for lack of a speedy trial precluded him from appellate review. Because preservation analysis is for error, not for the category of constitutional rights that belong to the defendant unless affirmatively 1 See Barker v. Wingo, 407 U.S. 514, 532 (1972) ( We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. ) Henson dissent Page 3 waived, I respectfully dissent to the majority s holding that a defendant must preserve his right to a speedy trial by raising the issue in the trial court. Filed: September 11, 2013 Publish
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