DAVID MARK TEMPLE v. THE STATE OF TEXAS (2025)

OPINION

Affirmed and Opinion filed July 1, 2025.

Belinda Temple's life ended tragically on January 11, 1999, when a person held a shotgun to the back of her head and pulled the trigger. In 2007, a jury convicted her husband, appellant David Mark Temple, of the murder and assessed his sentence at life imprisonment. Appellate courts affirmed his conviction on direct appeal, but appellant obtained a new trial through habeas corpus proceedings. A second jury again convicted appellant of murder, and, following a mistrial on punishment, a third jury sentenced him to life imprisonment in the Texas Department of Criminal Justice—Correctional Institutions Division.

Appellant appeals his second conviction in ten issues, which we group into four categories: (1) the evidence is insufficient to support his conviction; (2) the trial court erred by permitting the State to impeach appellant's father with his testimony from the first trial; (3) Code of Criminal Procedure article 37.07, section 3(c) is unconstitutional; and (4) the trial court violated appellant's constitutional right to a speedy trial.

We conclude that appellant's issues lack merit, and we affirm the trial court's judgment.

Background

A grand jury indicted appellant for Belinda's murder in February 2005. See Tex. Penal Code § 19.02. In November 2007, a jury found appellant guilty as charged in the indictment and assessed punishment at life imprisonment. This court affirmed appellant's conviction, Temple v. State, 342 S.W.3d 572 (Tex. App.—Houston [14th Dist.] 2010), and the Court of Criminal Appeals also affirmed. See Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013).

Appellant filed an application for post-conviction writ of habeas corpus in April 2014. The presiding judge recommended relief be granted. A plurality of the Court of Criminal Appeals granted relief and remanded appellant's case for a new trial. See Ex parte Temple, No. WR-78,545-02, 2016 WL 6903758, at *1, 2 (Tex. Crim. App. Nov. 23, 2016) (plurality op., not designated for publication). The court denied relief on appellant's claims of actual innocence. See id. at *2, 4.¹

Appellant's second jury trial commenced in June 2019. The following is a summary of the evidence presented, viewed favorably to the verdict.

A. Events Before Belinda's Death

Appellant and Belinda began dating in college. They married in 1992 and later worked as teachers. Belinda taught at Katy High School, and appellant was an assistant football coach at Alief Hastings High School. They lived in the Cimarron subdivision of Katy, south of I-10. Their two-story house (the “Temple Home”) occupied the corner lot of a main neighborhood road and was surrounded by similar homes.

According to several witnesses, appellant and Belinda had a strong marriage with no discernable problems. Others who were close to both, however, reported a troubled relationship and suggested that their marriage was unstable. For example, several of Belinda's friends and work colleagues heard appellant disparage Belinda regularly. Appellant often called Belinda “fat” and criticized her housekeeping and child-rearing skills. Appellant also had a “very poor” relationship with Belinda's family, which frustrated Belinda. He considered Belinda's family “white trash” and did not want her or their three-year-old son, Evan, around them.

In the early fall of 1998, appellant confided in a friend, Quinten Harlan, that he had “fooled around” with another woman at his high school reunion. Belinda complained to co-workers about the amount of time appellant spent away from home when she did not know where he was. She thought appellant was having an affair. She also lamented their lack of communication. At that time, Belinda was approximately eight months pregnant, and she expressed frustration to co-workers that, though pregnant, she had to do all the housework and even mow the lawn. She also told fellow teachers that appellant was unhappy about her pregnancy and did not want another child.

During the 1998 fall semester at Alief Hastings High School, appellant met a fellow teacher, Heather Scott. Scott and appellant soon began attending the same happy hours. Eventually, appellant would take Scott home afterwards. Scott confirmed that their relationship became romantic in October 1998. Scott knew appellant was married and learned during their relationship that he had a child. In November, appellant asked his friend Harlan, who also was flirtatious with Scott, about his intentions with her. Appellant asked if Harlan would be willing to leave his wife for Scott, and Harlan replied that he would not. When Harlan asked appellant the same question, appellant said, “I don't know.”

Belinda's twin sister, Brenda, visited the Temple Home from December 1998 through New Year's Day 1999. Brenda noticed significant tension that she had not seen before. She heard appellant chide Belinda for the weight she had gained during pregnancy, telling Belinda she had “a big butt.” Appellant surprised everyone by announcing that he would go hunting over New Year's weekend, which upset Belinda. On January 1, Brenda told Belinda to “put her foot down” and tell appellant to stop going out so often and help Belinda around the house. To Brenda, Belinda's marriage did not appear happy or strong.

Although appellant told Belinda he was going hunting, he actually spent the weekend with Scott from December 31, 1998 to January 2, 1999. He attended Scott's New Year's Eve party. Scott admitted that she and appellant had sexual intercourse at least twice—once before Christmas 1998 and then on New Year's Day 1999. On January 5, Scott told appellant that their relationship was inappropriate and that they probably needed to end it. But on Friday, January 8, after another happy hour, appellant told Scott he was falling in love with her, and she said she felt the same way.

B. The Day Of Belinda's Death

On Monday, January 11, Belinda drove to work with her co-worker, Stacy Nissley. Evan had been sick the night before and was cranky, but Belinda took him to daycare on the way to work because she was trying to save her leave time until after she gave birth. During the drive, Belinda told Nissley that her relationship with appellant was not better and that they still were not communicating. Later that morning, the daycare center called Belinda and asked her to pick up Evan because he had a fever. Belinda tried unsuccessfully to reach appellant, which frustrated her. During lunch, Belinda picked up Evan and took him home. At about 12:30 p.m., appellant arrived home to watch Evan, which allowed Belinda to return to work. Evan had taken medication before Belinda left.

Belinda left school around 3:30 p.m. and drove to the home of appellant's parents, Kenneth and Maureen (the “Parents' Home”), to pick up some soup for Evan. Phone records indicate that Belinda called appellant at 3:32 p.m. from her cell phone. Kenneth testified that Belinda arrived at his house around 3:45 p.m. and left around 3:55. He said that when Belinda arrived, she told him she was “running late” and in a “hurry.” She briefly spoke with Kenneth and then drove home. Kenneth and Maureen also lived in Katy, but north of I-10. The Parents' Home was about a fifteen minute drive from the Temple Home.

According to appellant's statement to Harris County Sheriff's Office (“HCSO”) Detective Chuck Leithner, Belinda arrived at the Temple Home around 3:45 p.m. Appellant and Evan left shortly thereafter. Appellant stated that he took Evan to a park and then stopped at a grocery store north of I-10, where he purchased drinks and cat food. The grocery store video shows appellant and Evan entering the store at 4:32 and leaving at 4:38 p.m.

Sometime between 4:50 and 5:00 p.m., a witness saw appellant driving his truck southbound on Katy Hockley Cutoff, approaching the Morton Ranch intersection. (This intersection was north of the grocery store appellant left at 4:38 p.m.). Appellant and Evan were next seen on video entering a Home Depot store at 5:14 p.m. The Home Depot was about a ten to twenty minute drive from the grocery store, and about a ten to twelve minute drive from the Temple Home.²

In his statement to Detective Leithner, appellant said he returned home around 5:45 p.m. and parked his truck in the garage. Appellant left Evan in the garage and walked into the backyard, where he saw the back door open and the door's window broken. Appellant immediately grabbed Evan and took him across the street to Michael and Peggy Ruggiero's house. Appellant banged on the door and yelled, “Mike, Mike, it's me, David. Let me in.” Michael and Peggy opened the door, and appellant handed Evan to them, told them his house had been broken into, and asked them to call 911. According to Michael, appellant ran back to his house. Michael followed, yelling at appellant to “wait up,” but appellant did not wait and went through the back gate. Michael stopped at the gate when confronted by the Temples' dog Shaka, but he saw appellant enter the house and the back door close behind him.

Upstairs, appellant found Belinda's body in the master bathroom closet. Belinda had been killed by a shotgun blast to the back of her head. At 5:38 p.m., appellant called 911, and law enforcement personnel soon arrived. Appellant walked out the back door and “calmly” said that Belinda had been shot and was dead. He then put Shaka in the garage. The first responding officers described appellant's demeanor as unusual because he did not appear upset and was calm and quiet. Deputies eventually placed him in the back of a patrol car.

Crime-scene investigators began processing the scene. The investigation revealed that a portion of the glass in the back door's window was broken near the doorknob. There was no damage to the interior of the door and no damage to nearby furniture. A key was in the inside doorknob. There was a substantial amount of broken glass in the adjacent living room area in the direction in which the door opened, but no glass was found in the location where one would expect to find it if the window had been broken while the door was closed. An expert testified that the impact that caused the glass to break could not have occurred when the door was closed. There were no other signs of possible forced entry into the house.

Inside, the television had been removed from its stand and sat sideways on the floor. Several drawers were open in the dining room buffet, but the contents were undisturbed. Belinda's purse was found in a downstairs closet, also undisturbed. Upstairs in the bedroom, Belinda's jewelry box was undisturbed. Jewelry belonging to appellant was found in plain view on top of the dresser. No bedroom furniture was disturbed, and two rifles were in the closet.

Investigators found Belinda's body in the master bedroom closet. She had a large shotgun wound in the back of her head, and the right side of her face was gone. There was a significant amount of blood and brain matter around her head and in the closet. Belinda was still wearing the clothes she had worn to school that day, including her shoes. The glasses she wore for driving were found broken in pieces near her head, and it appeared that she had been wearing them when shot. Investigators recovered shotgun pellets and wadding from inside the closet. Some of the pellets were consistent with double-aught size buckshot, and the wadding was consistent with a 12-gauge shotgun. Based on the scene, it was apparent that Belinda was on her knees when she was shot. Autopsy results revealed that the shotgun was fired while it was touching her head. She died instantly, but her unborn child died later due to a lack of oxygen.

Officers searched Belinda's car and found her cell phone and Evan's car seat. No blood was recovered from either vehicle. No shotguns or shotgun ammunition were recovered when officers searched the residence and appellant's storage unit.

Kenneth and Maureen arrived at the scene. That night, HCSO detectives interviewed appellant and his parents at a local substation. It was at this time when appellant provided his written statement to Detective Leithner, who questioned appellant about several apparent inconsistencies. Another detective, Bill Valerio, also interviewed appellant.

After his interviews, appellant was told he could not be eliminated as a suspect. He left the station with his parents.

C. Kenneth Temple's Testimony

A key issue for the defense during the second trial pertained to Kenneth Temple's testimony and how it affected the State's proposed timeline of events on the day of Belinda's murder, January 11.

In his statement to police on January 11, Kenneth said that he arrived at his home from work at 3:30 p.m. and that Belinda arrived about fifteen minutes later at approximately 3:45 p.m. The two visited for a few minutes and then she took the soup and left. Kenneth guessed she left around 3:55 p.m.

During appellant's 2007 trial, Kenneth's testimony varied from his police statement: He said that Belinda arrived at his house at 3:32 p.m. and that she left at 3:45 p.m.

Before appellant's second trial, the parties deposed Kenneth, who had health issues. His video deposition was played during the second trial. Kenneth's deposition testimony was generally consistent with his January 11 statement to police, but not consistent with his testimony during the 2007 trial. On direct examination by appellant's counsel, he stated that he arrived home from work on the day of Belinda's murder at about 3:30 p.m. and that Belinda arrived at his house around 3:45 p.m. According to Kenneth, she stayed no more than ten minutes, and it was a fifteen to twenty minute drive to her house from his. When he went back into the kitchen after Belinda left, he noted that the time was around 3:55 p.m.

On cross-examination, the State impeached Kenneth with his testimony from the 2007 trial. The State questioned Kenneth in detail about his prior trial testimony, pointing out the inconsistencies with his deposition testimony. Kenneth was afforded the opportunity to explain his inconsistent prior testimony. The State's impeachment of Kenneth forms the basis of appellant's second through fourth issues, and we discuss it further below.

C. Neighbor Testimony

The Cimarron neighborhood was a typical suburban residential area, generally considered very safe. Afternoons were usually filled with busy foot and vehicle traffic, school buses, delivery trucks, residents returning from work, adults walking, and children playing outside after school.

Several neighbors testified about what they saw and heard during the afternoon of January 11. At approximately 4:20 p.m., Michael and Peggy Ruggiero were on their daily walk through the neighborhood when they saw a light-colored sedan with two young men inside speed by.

At around 4:30 p.m., two other neighbors heard Jim and Cynthia Parker's dog barking incessantly near the fence the Parkers shared with the Temple Home. However, no one heard the Temples' dog, Shaka, barking at that time.

Sometime between about 4:30 and 4:45 p.m., three elementary school-aged brothers, the Roberts boys, who lived directly behind the Temple Home, heard a loud “boom” as they were watching a movie. Two of them described the sound as a gunshot. Another witness, who lived about two blocks away, heard what he believed were several shotgun blasts at around 5:00 p.m.

Meanwhile, another neighbor, Rosanne Martinez, reported having spent most of the day with her newborn daughter, sitting on a couch and looking out at the Temple Home, which faced her house. She did not hear or see anything unusual in the neighborhood.

Martinez's friend, Angela Vielma, also lived in the Cimarron neighborhood. Vielma walked to Martinez's house that afternoon. As Vielma passed the Temple Home, she saw appellant and Evan in a blue truck pass her and pull into their garage. She saw appellant step out of the truck as the garage door was closing. She believed she arrived at Martinez's house at around 5:25 p.m. Vielma knocked on Martinez's door several times, but no one answered. She waited on the porch, which faced the Temple Home, for five to ten minutes. Vielma did not see anyone coming or going to the Temple Home or hear anything unusual while she waited. Martinez's husband, Joe Cadena, let Vielma inside, and she went to the back of the house to see Martinez. She and Martinez visited for “a while” before they were interrupted by Cadena telling them something was happening across the street. The three went outside and saw law enforcement activity at the Temple Home.

D. Subsequent Events

Two days after Belinda's death, appellant told his father and brothers about his affair with Scott. When appellant saw Harlan shortly after Belinda's death, he asked him how Scott was doing. According to Harlan, it was apparent that appellant's relationship with Scott was continuing.

The day before Belinda's funeral, appellant told her sister, Brenda, that he had not gone hunting over New Year's Day holiday, but that he had instead gone to “a friend's house, and got real drunk and was with a girl.” He assured Brenda that he had not seen the girl, who he refused to name, since.

In late January, investigators learned from a story on television that jewelry had been reported stolen from appellant's home. Before that date, they had received no information that anything had been stolen, and Belinda's jewelry box appeared undisturbed on January 11. They obtained a list of the items reported stolen and distributed it to local pawnshops to no avail.

Shortly after Belinda's funeral, appellant called Harlan to check on Scott. He apologized to Harlan and asked him to tell Scott how sorry he was that she had to go through this. On Valentine's Day 1999, appellant sent Scott a large bouquet of several dozen flowers.

Harlan and his wife testified to the grand jury in April 1999. Afterward, appellant questioned them about their testimony. Appellant told Harlan he should keep his mouth shut. Appellant followed both of them in their cars on at least one occasion, which Harlan's wife found threatening.

E. The Alternate Suspect

Riley Joe Sanders, III (“Joe”) was sixteen and lived with his family next door to the Temple Home. He attended Katy High School and was in Belinda's class. Joe reported that Belinda was a good teacher, who was nice to him and cared about his progress. However, Joe was tardy frequently or skipped class altogether. Belinda was a hall monitor and regularly chastised Joe for his tardiness, although she never took disciplinary action against him.

Joe missed over 280 classes during the 1998-99 school year. He often left campus and drove around to smoke. Before January 11, Belinda spoke about Joe's attendance problems with his mother, who temporarily took away Joe's truck. Belinda also asked Joe to pick up broken bottles from her back yard and to straighten Christmas decorations that Joe and his friends had knocked over.

On January 11, Joe skipped his seventh period class with his friend, Cody Ellis. The two went to Joe's house for a marijuana cigarette, then drove around back roads smoking it. Joe drove Ellis home around 3:30 p.m. Joe returned to his house and called a friend, Michael Granthom, who went to Joe's house with another classmate. The teens drove around in Granthom's car looking for more marijuana. Unable to find any, they went to a nearby convenience store to buy cigarettes before returning to Joe's house. At around 4:45 p.m., Granthom left to pick up his mother from work. Granthom's mother reported that Granthom and his friend were on time to pick her up and acted normally that afternoon. Investigators believed that the car the Ruggieros saw during their afternoon walk was Granthom's.

After his friends left, Joe ate a snack and took a nap on his couch. Joe's father woke him around 6:00 p.m., and they went outside to watch the police activity at the Temple Home. A television reporter at the scene interviewed Joe, who said he had been at school all day. Joe lied during the interview, however, because he did not want his father to learn he had skipped seventh period. He also lied to detectives at first because he was still trying to hide that he had left school early. Joe came to the attention of law enforcement when they were alerted that he had skipped seventh period on the day of Belinda's murder.

Joe cooperated with investigators and provided numerous interviews and statements to police during their investigation. Eventually, however, his parents stopped allowing investigators access to Joe. His parents consented to a search of their home. Investigators recovered two 12-gauge shotguns, and Joe's father gave investigators all the shotgun shells at their home.

Several of Joe's schoolmates were involved in a burglary in early January 1999 (before Belinda's murder) while Joe was out of town on a hunting trip. The perpetrators stole two shotguns and a jewelry box. On January 5, several teens went out to shoot the shotguns, and Joe joined them, taking his father's 12-gauge shotgun without permission. Afterward, Joe realized his father would see him with the shotgun, so he gave it to Ellis to keep until he could return it without his father's knowledge. The shotgun remained with Ellis until Ellis turned it over to investigators following Belinda's murder.

F. Unsuccessful Search For Murder Weapon

Despite extensive searches, investigators never found the murder weapon. They recovered numerous shotguns from various locations, but none of them were linked forensically to Belinda's murder. The 12-gauge shotgun shell used to kill Belinda contained double-aught buckshot and had unusual pink wadding. The shotgun Ellis turned over to detectives—which belonged to Joe's father—contained a spent shell casing that one of the State's experts testified could have been filled with buckshot and wadding consistent with that recovered during Belinda's autopsy, but no forensic evidence linked this gun to the offense. Moreover, none of the shotgun shells found at Joe's home were consistent with the shotgun shell components collected during Belinda's autopsy.

Several witnesses testified that appellant was a hunter and often used shotguns. Appellant had access to 12-gauge shotguns when he was younger. A Temple family friend, Clinton Stockdick, had seen shotguns in the Temple Home, including a shotgun with a sawed-off barrel and what he described as a “pistol grip.” In summer 1998, Harlan saw a box of double-aught shotgun shells in appellant's garage. When police searched appellant's home and storage unit in the immediate aftermath of Belinda's murder, however, they found no shotguns or shotgun ammunition. Sometime in January 1999 after Belinda's murder, Harlan and others helped appellant move out of his house. Harlan and another person, Jennifer Stockdick, saw a box containing shotgun shells and a hunting vest in one of the home's front rooms.

Appellant and Evan lived with appellant's parents until the summer of 2001, when appellant married Heather Scott.

* * *

At the conclusion of his second trial, the jury convicted appellant of murder. The jury was unable to agree on punishment, however, and the trial court declared a mistrial as to punishment only.³ Appellant's new jury trial on punishment commenced in April 2023. The jury assessed appellant's sentence at confinement for life in the Texas Department of Criminal Justice—Correctional Institutions Division and a $10,000 fine. Appellant timely filed a notice of appeal.

Analysis

Appellant presents ten issues for our review, which we group into the following four categories:

1. The evidence is legally insufficient to support his conviction.

2. Regarding the State's cross-examination of Kenneth Temple:

a. the trial court abused its discretion in overruling appellant's objection to the State's impeachment of Kenneth;

b. the trial court abused its discretion in sustaining the State's objection to appellant's former counsel Dick DeGuerin's testimony that would have further explained the circumstances surrounding Kenneth's testimony; and

c. the trial court abused its discretion in refusing appellant's request for a limiting instruction concerning the impeachment of Kenneth.

3. Texas Code of Criminal Procedure article 37.07, section 3(c):

a. is unconstitutional as applied to appellant based on violations of the ex post facto clauses of the United States and Texas constitutions; and

b. violates appellant's due process rights and right to a jury trial as guaranteed by the U.S. and Texas constitutions.

4. The trial court abused its discretion in denying appellant's motion to dismiss based on his constitutional right to a speedy trial.

Sufficiency of the Evidence

In his first issue, appellant argues that no legally sufficient evidence supports his conviction. In particular, he emphasizes that the State's proof was “light on evidence of opportunity and means” because, given Belinda's movements on January 11, appellant had no opportunity to commit the murder, and there is no evidence that appellant owned or possessed a 12-gauge shotgun at any time.

A. Standard of Review

We review the legal sufficiency of the evidence under the familiar Jackson v. Virginia standard. See 443 U.S. 307, 318-19 (1979); Temple, 390 S.W.3d at 360. Under that standard, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. We presume that the jury resolved conflicting evidence and inferences in favor of the verdict. See Braughton v. State, 569 S.W.3d 592, 607-08 (Tex. Crim. App. 2018); Criff v. State, 438 S.W.3d 134, 136-37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd).

We consider both direct and circumstantial evidence, as well as any reasonable inferences from the evidence. See Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016). Circumstantial evidence is as probative as direct evidence and can be sufficient by itself to establish guilt. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In reviewing the evidence, we remain mindful that we defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony, as the jury is the sole judge of those matters. Jackson, 443 U.S. at 326; see Braughton, 569 S.W.3d at 609. This standard applies to both direct and circumstantial evidence. Criff, 438 S.W.3d at 136-37.

B. Application

A person commits murder if he intentionally or knowingly causes the death of another person or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of another. Tex. Penal Code § 19.02(b)(1), (2). As in appellant's previous trial, the only issue was whether appellant killed his wife, which the State had to prove beyond a reasonable doubt.

Appellant concedes that his intimate relationship with Heather Scott provided a motive for murder.⁴ He insists nonetheless that the State failed to prove its case beyond a reasonable doubt because he simply did not have time to kill his wife. He claims, “[t]here is no evidence that an opportunity existed for [appellant] to commit that murder within the time restraints of Belinda's movements and the stipulation of evidence entered that there was no evidence that [Evan] had been a witness to the murder or was present when any violence occurred.”

Appellant relies heavily on the testimony of his father, Kenneth. Kenneth testified that on the day of her murder, Belinda arrived at his house at about 3:45 p.m. and left at around 3:55 p.m. to drive home. Detective Mark Schmidt testified that it took sixteen minutes to drive from the Parents' Home to the Temple Home. Other witnesses stated that the drive took fifteen to twenty minutes. Thus, accepting Kenneth's testimony, Belinda would have arrived at her home between 4:10 and 4:15 p.m. Law enforcement also recorded that it took twelve minutes to drive from the Temple Home to the grocery store where appellant and his son were seen entering at 4:32 p.m. Under appellant's version of events, the latest appellant could have left his home would have been 4:20 p.m. Appellant contends he simply would not have had time to kill Belinda and stage the crime scene in the five to ten minutes they were both at the house.

The jury reasonably may have discounted appellant's timeline argument generally and Kenneth's testimony specifically. Kenneth's testimony was couched in terms of “approximations.” Moreover, as we discuss below, the jury heard that Kenneth testified under oath to a different timeline that would have lent greater support to the State's version of events. Still further, Kenneth's testimony was contradicted by the fact that appellant himself told two separate investigators that Belinda arrived home that day around 3:45 p.m. It is entirely reasonable that the jury was not distracted by the back-and-forth about Kenneth's timeline testimony but instead found more persuasive appellant's statement that Belinda arrived home at 3:45 p.m., or the testimony of other witnesses who established a timeline also supportive of the State's theory. If the jury accepted a timeline of events based on appellant's statements, that would have given him at least thirty minutes to have killed Belinda.⁵ Moreover, appellant does not dispute that he was home alone with a medicated Evan for at least three hours before Belinda arrived after stopping at the Parents' Home, giving him ample time to stage the scene. It is the jury's province to resolve conflicts in the testimony and weigh the credibility of witnesses' testimony. Murray v. State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015).

More generally, appellant's timeline argument does not account for the testimony of other witnesses the jury reasonably could have believed, such as Angela Vielma. During the approximately ten minutes that Vielma waited on Martinez's porch—which faced appellant's home—she did not hear or see anything unusual at appellant's home, despite having seen appellant pull into his garage moments before. Further, according to Vielma, she and Martinez visited for twenty to twenty-five minutes before their visit was interrupted by the happenings at the Temple's home.

In his statement to law enforcement, appellant claimed that when he got home at around 5:45 p.m. and reached the back door, he could see that the door was partially open and the window was broken. He continued, “I immediately went back, got my son, took him across the street to a neighbor's house, and then returned to the house” (emphasis added). But if appellant had immediately taken Evan to Michael Ruggiero's home, Vielma likely would have seen or heard something. Thus, from Vielma's testimony, the jury reasonably could have found that appellant was inside his home for a longer time than he led investigators to believe before he went to the Ruggerios' home. Lying to police is a circumstance of guilt. See Guevara, 152 S.W.3d at 50.

Appellant also made inconsistent statements to law enforcement officials or omitted important facts. For example, appellant told one officer that he had taken Evan to a park on the other side of the Katy Freeway after he left his home, but he later said they went to a neighborhood park. Then he told a different detective that they did not go to any parks at all because Evan did not want to go. He changed his story yet again to say they went to a neighborhood park for about forty-five minutes. Providing inconsistent statements to law enforcement may be a circumstance of guilt. E.g., Temple, 390 S.W.3d at 361; Melgar v. State, 593 S.W.3d 913, 922 (Tex. App.—Houston [14th Dist.] 2020, pet. dism'd).

Additionally, after appellant left the grocery store, he did not drive directly to Home Depot. Thirty-six minutes passed between the time he was seen on video leaving the grocery store and the time he entered Home Depot, even though they are less than twenty minutes apart. Rather, he drove north of the grocery store to the vicinity of the Parents' Home, where he was spotted by another witness. That appellant did not share this fact with police could be interpreted as an attempt to conceal his movements during this critical period. Further, the jury rationally could have concluded that this thirty-six minute window afforded appellant an opportunity to hide a gun and any other evidence before arriving at Home Depot.

Appellant cites other evidence he says supports his innocence, such as testimony regarding a dog barking at the fence by the Temples' yard between 4:30 and 4:45 p.m. and testimony from the Roberts boys that they heard a loud noise like a gunshot between 4:30 and 4:40 p.m. Appellant was not at his house at those times. However, the jury did not have to believe that the “boom” the boys heard was the gunshot that killed Belinda. The closet in which Belinda was killed was described as packed with clothing and other items, which would have dampened loud sounds. The State's crime scene reconstructionist, Tom Bevel, testified that it was improbable that anyone could have heard the shot outside of the Temple Home, and he would be “very surprised” if someone inside another house could have heard the shot. Other witnesses who were outside at that same time heard nothing.

Moreover, no witnesses testified that Shaka was heard barking at any time during the afternoon until the police arrived. Shaka, a full-grown Chow, was reportedly protective of Belinda and would bark when strangers came near the backyard. Detective Leithner testified that when he questioned appellant about how an unknown person could have evaded Shaka to enter the house, appellant appeared “irritated” and did not respond. One might reasonably expect a dog like Shaka to have barked if someone the dog did not recognize, such as an intruder, was on the premises.

Crime Scene Investigator Sergeant Dean Holtke, qualified as an expert in crime-scene staging, opined that the scene at the Temple Home was deliberately arranged to look as if a burglary had occurred. Sergeant Holtke opined that the Temple Home's rear door was open when the glass window was broken, indicating that the scene was staged. He found further support for his view based on the “lack of ransacking,” including open drawers with nothing “messed with” and jewelry left in plain sight. Evidence of staging is a circumstance supporting a determination of guilt. Melgar, 593 S.W.3d at 921.

Appellant also highlights evidence concerning Joe Sanders. As appellant notes, Joe lied to police about his whereabouts on the afternoon of Belinda's death. Joe also had access to a 12-gauge shotgun. Nonetheless, the jury heard Joe's testimony, as well as the testimony of most of the friends he was with when Belinda was killed. The jury was able to assess their credibility and reasonably could have found that Joe had nothing to do with the murder. Appellant's assertion that the spent shell in the Sanders' shotgun “could have been the shell that caused Belinda's death based on the wadding recovered during the autopsy” is countered by expert testimony that none of the shotgun shells recovered from the Sanders' home contained wadding or buckshot that matched what was found during Belinda's autopsy. And no forensic evidence linked the Sanders' shotgun to Belinda's murder. Also important, Joe and Cody Ellis both testified repeatedly, under close questioning from defense counsel, that the Sanders' shotgun was at Ellis's home—rather than in Joe's possession—when Belinda was killed. Ellis testified that the shotgun remained undisturbed under his bed from January 5 to January 28, when he handed it over to detectives after Belinda's murder.

Appellant and Evan were the last people known to have seen Belinda alive. Appellant concedes that he had a motive to kill his wife. The burglary scene in the house appeared to have been staged (poorly), and the jury reasonably could have found that appellant had an opportunity to kill Belinda and arrange the scene. No one saw anything unusual at the Temple Home the day of Belinda's murder, and a jury reasonably could have found it highly unlikely that an intruder would have chosen broad daylight at a busy time of day in a busy subdivision to burglarize the Temple Home.

The evidence supported a conclusion that Belinda was murdered very soon after she arrived home because she had not yet removed her shoes or glasses or placed her keys on the kitchen counter—all her habits when arriving home. Appellant told law enforcement that he was home when Belinda arrived at around 3:45 p.m. and that he took Evan to the park while Belinda rested. However, the evidence showed that appellant left without moving Evan's car seat from Belinda's car to his truck, which was his usual practice. The jury may have inferred that appellant left in a hurry, reinforcing the State's position that appellant was rushing from a crime scene.

Appellant's demeanor and behavior after Belinda's death was suspicious. He did not appear upset by her death, and he expressed concern only for his paramour's state of mind rather than for his wife. His statements to detectives after Belinda's murder were inconsistent, and he behaved threateningly to witnesses who testified to the grand jury. Appellant confronted Harlan about his 1999 grand jury testimony, telling Harlan to keep his mouth shut. He also followed Tammy Harlan during the same time period, which frightened her. An attempt to tamper with a witness is evidence of a consciousness of guilt. Washington v. State, 567 S.W.3d 430, 439 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd).

It is the jury's province to assess the credibility and demeanor of witnesses, and this court is not the fact finder. Temple, 390 S.W.3d at 363. It is also not the State's burden to exclude every conceivable alternative to a defendant's guilt. Id.

While we have not detailed all the evidence the jury may have credited, the facts and reasonable inferences we have summarized are sufficient to support the verdict. Viewing the evidence in the light most favorable to the jury's verdict, we hold that the jury could have found appellant guilty of Belinda's murder beyond a reasonable doubt. The cumulative effect of all the incriminating facts are sufficient to warrant the jury's conclusion. Cf. id. at 361-63. We overrule appellant's first issue.

Impeachment of Kenneth Temple

In his next three issues, appellant urges various errors in the trial court's decision to permit the State to impeach Kenneth with his testimony from appellant's 2007 trial.

A. Background

In his January 11 statement to investigators, Kenneth said that Belinda arrived at his home at approximately 3:45 p.m. They visited for a few minutes, and Kenneth guessed that she left around 3:55 p.m. During appellant's 2007 trial, however, Kenneth's testified that Belinda arrived at his house at 3:32 p.m. and that she left at 3:45 p.m.

This difference in Kenneth's testimony was a significant issue in appellant's habeas proceedings, in which the Court of Criminal Appeals granted relief on Fifth Amendment grounds. Ex parte Temple, 2016 WL 6903758, at *3. A plurality of four judges concluded that the State violated appellant's Brady rights by withholding alternate suspect evidence regarding Joe Sanders. See id. The State's decision to wait until trial to disclose to the defense hundreds of pages containing potentially exculpatory alternate suspect evidence, the court concluded, harmed appellant beyond depriving him of the use of that material in preparing for trial. It also “handicapped defense counsel's overall performance and caused him to lose focus of the importance” of Kenneth's testimony. Id. at *4. The plurality appeared to agree that counsel's failure to prepare Kenneth to testify consistently with his January 11 statement “was the direct result of the State's Brady violations.” Id. Nonetheless, the court declined to grant relief on appellant's Sixth Amendment ineffective assistance of counsel claim. Id. at *4. A fifth judge concurred that relief should be granted, but he would have granted it on ineffective assistance grounds rather than Brady violations, pointing to trial counsel's failure to properly prepare Kenneth to testify. See id. (Yeary, J., concurring). Appellant emphasizes that five judges noted that trial counsel did not review Kenneth's January 11 statement with him in preparation for his 2007 trial testimony.

In advance of the second trial, the parties deposed Kenneth.⁶ On direct examination by appellant's counsel, Kenneth reverted to his initial statement to investigators—that Belinda arrived at his home at around 3:45 p.m. and stayed for “[n]o more than ten minutes.” He said that, when he went back into the kitchen after Belinda left, he noted the time was around 3:55 p.m., and he testified that it was a fifteen to twenty minute drive to her house.

Over appellant's objection, the prosecutor cross-examined Kenneth about his 2007 trial testimony. Kenneth acknowledged that during the 2007 trial, he testified that Belinda arrived at his house at 3:32 p.m. and that she left at 3:45 p.m. He also acknowledged that he had a copy of his January 11 statement and that he reviewed it before testifying in the 2007 trial. He stated, however, that he misspoke during the 2007 trial because he had not received any guidance from Dick DeGuerin, appellant's former trial counsel, before testifying.

On re-direct, Kenneth confirmed that he testified to the grand jury that Belinda arrived at his house at 3:45 and left at 3:55, which was consistent with his January 11 statement and his deposition testimony. He stated again that he had not reviewed his January 11 statement with DeGuerin before testifying in 2007.

Appellant filed a motion to limit Kenneth's cross-examination. In this motion, appellant sought to exclude from jury consideration the State's impeachment of Kenneth about his 2007 trial testimony concerning when Belinda arrived at the Parents' Home on January 11. Appellant argued that permitting the State to impeach Kenneth with his prior testimony would violate appellant's right to a fair trial because the Court of Criminal Appeals granted him a new trial due to the State's Brady violations. Allowing the jury to hear the State's cross-examination of Kenneth regarding his 2007 testimony, appellant continued, would reward the State for its improper conduct. The trial court denied his motion. Consequently, both the guilt/innocence and punishment juries heard Kenneth's deposition, including the State's cross-examination regarding his 2007 trial testimony.

B. Impeachment of Kenneth with 2007 Trial Testimony

In his second issue, appellant contends the trial court abused its discretion in overruling his objections to the State's impeachment of Kenneth with his testimony from the 2007 trial. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). A trial court abuses its discretion if the decision falls outside the zone of reasonable disagreement—that is, the ruling was “so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Id. at 83 (quotation omitted). If the trial court's evidentiary ruling is correct under any applicable theory of law and is reasonably supported by the record, it will not be disturbed even if the trial court gave a wrong or insufficient reason for the ruling. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). We may not substitute our own decision for that of the trial court. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018).

Appellant contends that the State's Brady violations during the first trial prejudiced him because DeGuerin could not prepare Kenneth to testify consistently with his January 11 statement. Remedying that prejudice, appellant urges, required more than a new trial; it required the trial court to exclude from the second trial the State's cross-examination of Kenneth regarding his 2007 trial testimony. As the State puts it, appellant wants the court “to expand the relief for the State's Brady violation to include the suppression of impeachment evidence of [Kenneth].”

Appellant acknowledges that the high court denied habeas relief on Sixth Amendment ineffective assistance of counsel grounds, but part of his argument presupposes that DeGuerin's constitutionally deficient conduct contributed to Kenneth's testimony. “Suppressing evidence and limiting cross-examination are preferred methods for neutralizing the effects of Sixth Amendment violations.” Williams v. State, 707 S.W.3d 233, 239 (Tex. Crim. App. 2024) (observing that excluding or limiting evidence in second trial is preferable to dismissal of charge). To the extent appellant contends that the trial court should have suppressed the State's impeachment of Kenneth to cure a Sixth Amendment violation, we disagree. The trial court could not have fashioned a remedy for a Sixth Amendment violation in 2019 because no court had said that a Sixth Amendment violation had occurred.

The crux of appellant's argument turns on the propriety of evidence suppression in a second trial as a remedy for Brady violations. When the State fails to timely divulge to a defendant potentially material exculpatory evidence (whether directly exculpatory or exculpatory as having impeachment value), the traditional remedy is to reverse the conviction and remand for further proceedings, even when the prosecutor's conduct could be considered “reprehensible.” See Ex parte Mitchell, 977 S.W.2d 575, 578 (Tex. Crim. App. 1997). Generally, a new trial alone remedies the State's withholding of Brady evidence in a prior trial because the defendant may investigate and develop other potential defenses based on the withheld evidence in the second trial. See, e.g., Cook v. State, 940 S.W.2d 623, 627-28 (Tex. Crim. App. 1996); Mitchell, 977 S.W.2d at 578; Ex parte Davis, 957 S.W.2d 9, 14 (Tex. Crim. App. 1997). That is what happened here.

In support of his position that a new trial is itself insufficient, appellant cites Harrison v. United States,⁷ Jackson v. State,⁸ and United States v. Pelullo.⁹ He urges that impeaching Kenneth with his 2007 trial testimony “allows the taint resulting from the State's misconduct to continue into the instant trial.” In Harrison, a jury convicted the defendant of murder. Harrison, 392 U.S. at 220. At his trial, the prosecution introduced three confessions he allegedly made while he was in police custody. After the confessions were admitted, Harrison took the stand and testified to his own version of events. Id. His conviction was reversed on the basis that his confessions had been illegally obtained and were inadmissible against him. Id. At his retrial, the prosecutor did not offer the alleged confessions into evidence; instead, the prosecutor read to the jury his testimony from the prior trial, over the defense counsel's objection. Id. at 221. He was again convicted, and the court of appeals affirmed. Id. The Supreme Court granted certiorari to decide whether Harrison's trial testimony “was the inadmissible fruit of the illegally procured confessions.” Id. The court held that “the same principle that prohibits the use of confessions so [wrongfully] procured also prohibits the use of any testimony impelled thereby—the fruit of the poisonous tree, to invoke a time-worn metaphor.” Id. at 222.

Like Harrison, Jackson and Pellulo involved situations when the defendant testified during a first trial based on the then-existing state of the evidence before learning that the prosecution had withheld Brady material. See Jackson, 2017 WL 3155935, at *2; Pellulo, 105 F.3d at 124. As the Jackson court stated, “[d]uring a second trial, Jackson may refuse to testify, and the trial court must fashion a remedy limiting harm relating to the defendant's decision to waive his Fifth Amendment right and testify in the first trial.” Jackson, 2017 WL 3155935, at *2 (citing Harrison, 392 U.S. at 223). Similarly, the Pellulo court said that a defendant's testimony in a former trial, when impelled by a constitutional violation, must be excluded from subsequent proceedings. Pellulo, 105 F.3d at 125 (also discussing Harrison, 392 U.S. at 221-22).

These cases are distinguishable from appellant's circumstances. Key to the result in Harrison was the defendant's right not to testify. Harrison was limited to the testimony of a defendant who is compelled to testify on his own behalf because of the introduction of an illegally obtained confession. Here, the dispute is not about appellant's testimony. Kenneth is a third-party witness for the defense, not a defendant whose confession or statement was illegally obtained. Harrison's holding expressly does not extend to third-party witness testimony. Harrison, 392 U.S. at 223 n.9 (“We have no occasion in this case to canvass the complex and varied problems that arise when the trial testimony of a witness other than the accused is challenged as ‘the evidentiary product of the poisoned tree.’ ”). Appellant, moreover, does not suggest that Kenneth would not have testified in the first trial but for the State's misconduct.

Another fact distinguishing this case from Harrison is that the State did not attempt to introduce Kenneth's prior testimony during its case-in-chief. Harrison, 392 U.S. at 223 n.9. The State's election to confront him with his prior sworn testimony in cross-examination is a situation to which Harrison's holding does not apply.¹⁰ Appellant has not cited a case that has granted the relief he requests under circumstances like these.

To the extent the trial court had discretion to exclude the State's cross-examination of Kenneth during the second trial because his 2007 trial testimony in some manner resulted from a Brady violation, that discretion is also influenced “by the need to prevent perjury and to assure the integrity of the trial process.” Stone v. Powell, 428 U.S. 465, 488 (1976). Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Harris v. New York, 401 U.S. 222, 225 (1971). By the same token, criminal defendants are not privileged to knowingly rely upon perjured testimony of others. See Knotts v. State, 61 S.W.3d 112, 117 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd). Once a witness testifies in a way that contradicts his prior statements, it is inappropriate to strip an opposing party of “ ‘traditional truth-testing devices of the adversarial process.’ ” Kansas v. Ventris, 556 U.S. 586, 593-94 (2009) (quoting Harris, 401 U.S. at 225). Holding otherwise opens the door to the undesirable instance when the temptation for a witness to commit perjury, if unchallenged, may become too great. See id. The principal cost of any exclusionary principle in this context is, of course, the potential that guilty parties will go free—something that “ ‘offends basic concepts of the criminal justice system.’ ” Herring, 555 U.S. at 701 (quoting United States v. Leon, 468 U.S. 897, 908 (1984)).

A witness's prior inconsistent statements are admissible to impeach the witness. Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App. 1987), cert. denied, 486 U.S. 1002 (1988); Patterson v. State, 632 S.W.2d 809, 811 (Tex. App.—Houston [14th Dist.] 1982, pet. ref'd); Tex. R. Evid. 613(a). Courts are to interpret the rules of evidence concerning prior inconsistent statements liberally in deference to the trial judge's ability to receive any evidence which tends to expose a falsehood. See Aranda, 736 S.W.2d at 707.

Having been placed under oath (during the 2007 trial and his deposition), Kenneth was obliged to speak truthfully and accurately. When Kenneth testified on direct examination during his deposition to a timeline of events that varied from his 2007 trial testimony, the State was entitled to test him in accordance with the rules of evidence. If Kenneth was unsure or confused about the time that Belinda left his home, he could have said so. Instead, he testified to specific times corroborated with specific details of how he remembered the event. That he may have testified to facts that he either did not fully recall or later said he did not believe to be true was a proper consideration for the jury under the present circumstances.

After the State's cross-examination, appellant's counsel rehabilitated Kenneth by establishing among other things that Kenneth's testimony to the grand jury regarding the timeline of January 11, 1999 was consistent with his testimony at the deposition. The jury had before it the substance of each and every timeline statement by Kenneth, which it considered in evaluating his credibility. And the jury also heard Kenneth's explanation for the variance in his testimony.

For these reasons, we are unpersuaded that the trial court was required to prevent the jury during the second trial from hearing the State's cross-examination of Kenneth once he offered inconsistent testimony. We conclude the trial court acted within its discretion. We overrule appellant's second issue.

C. Exclusion of Prior Trial Counsel's Testimony

Appellant argues in his third issue that the trial court reversibly erred by denying his request to call his prior trial counsel, DeGuerin, to testify after Kenneth was impeached with his inconsistent testimony from the first trial. Appellant relies on the rule of optional completeness to urge that DeGuerin should have been permitted to explain the circumstances of Kenneth's prior testimony. In offers of proof during the guilt/innocence and punishment phases, appellant's counsel stated that DeGuerin would testify that he was given a copy of Kenneth's January 11 statement shortly after he was hired to represent appellant. However, because of the volume of evidence that the prosecution disclosed during the first trial, DeGuerin never reviewed the report or spent any time preparing Kenneth for his testimony.

Under rule 107, the “Rule of Optional Completeness,” “[i]f a party introduces part of an act, declaration, conversation, writing, or recorded statement, an adverse party may inquire into any other part on the same subject. An adverse party may also introduce any other act, declaration, conversation, writing, or recorded statement that is necessary to explain or allow the trier of fact to fully understand the part offered by the opponent.” Tex. R. Evid. 107; see also Pena v. State, 353 S.W.3d 797, 814 (Tex. Crim. App. 2011); Sauceda v. State, 129 S.W.3d 116, 122-23 (Tex. Crim. App. 2004). This rule is one of “admissibility [that] permits the introduction of otherwise inadmissible evidence when the evidence is necessary to fully and fairly explain a matter opened up by the adverse party.” Walters v. State, 247 S.W.3d 204, 218 (Tex. Crim. App. 2007) (internal quotation omitted). Rule 107 is “designed to reduce the possibility of the jury receiving a false impression from hearing only a part of some act, conversation, or writing.” Id.

To the extent this rule applies to the present circumstances, there was no false impression left with the jury about the reason Kenneth testified differently at the second trial than he had at the 2007 trial. Kenneth explained the circumstances surrounding his changed testimony during cross-examination:

I did say 3:32. I was in error. My attorney did not -- I had been cast among the wolves without any notice days before I was supposed to testify, without any help, without any assistance, or any guidelines. And when I spoke something that was in error, I did not have the benefit of an attorney to correct it at that moment.

When questioned whether he had reviewed his January 11 statement before testifying in 2007, Kenneth responded that he was not guided on that and that “DeGuerin did not ever review what was going to happen in that courtroom.” On re-direct, Kenneth testified that he never reviewed his January 11 statement with DeGuerin before testifying at the 2007 trial. He further stated that he was not aware that he would be called to testify on November 7, 2007, that he did not review his January 11 statement in the days before he testified in 2007, and that his current trial testimony was consistent with both his 1999 grand jury testimony and his January 11 statement.

For otherwise inadmissible evidence to be admissible under the rule of optional completeness, it must be “on the same subject and must be necessary to make it fully understood.” Pena, 353 S.W.3d at 814 (internal quotations omitted); see Walters, 247 S.W.3d at 218 (“Rule 107 does not permit the introduction of other similar, but inadmissible, evidence unless it is necessary to explain properly admitted evidence.”); Washington v. State, 567 S.W.3d 430, 448 (Tex. App.—Houston [14th Dist.] 2018, pet. ref'd). The record reveals no need for any further explanation as to why Kenneth testified differently in this trial than he did in 2007. He explained that appellant's prior counsel did not prepare him to testify at the 2007 trial by reviewing his prior statements. DeGuerin's testimony providing the same explanation was unnecessary and would have been duplicative. The trial court did not abuse its discretion in denying appellant's request to call DeGuerin to testify.

We overrule appellant's third issue.

D. Refusal of Limiting Instruction

In issue four, appellant contends that, to the extent it was proper to allow the State to cross-examine Kenneth regarding his 2007 trial testimony, the court erred by denying appellant's request for a limiting instruction. The State responds that the trial court properly denied appellant's request because Kenneth's 2007 trial testimony, being non-hearsay, was admissible for all purposes and thus no limiting instruction was warranted.

Witnesses may be impeached by proof of a prior inconsistent statement, oral or written, under oath or not. See Tex. R. Evid. 613; Miranda v. State, 813 S.W.2d 724, 735 (Tex. App.—San Antonio 1991, pet. ref'd). Generally, the prior statements of a witness are hearsay if offered to prove the truth of the matter asserted. See Miranda, 813 S.W.2d at 735. Unless a witness's prior inconsistent statement falls within a hearsay exception, it is admissible only for purposes of impeachment and not as substantive evidence. Id.; see Tex. R. Evid. 613(a); Villyard v. State, No. 01-13-00589-CR, 2014 WL 2048291, at *4 (Tex. App.—Houston [1st Dist.] May 15, 2014, no pet.) (mem. op., not designated for publication). When evidence is admitted for a limited purpose, such as for impeachment, the trial court must, on request, provide a limiting instruction. See Tex. R. Evid. 105(a); see also Irielle v. State, 441 S.W.3d 868, 880 (Tex. Crim. App. 2014). This is so because failing to provide the instruction may improperly result in the jury forming a negative inference about the defendant. Jackson v. State, 992 S.W.2d 469, 477 (Tex. Crim. App. 1999). Such a limiting instruction typically informs the jury that it may consider the prior inconsistent statement only for weighing the witness's credibility and not for any other purpose.

If, however, a prior inconsistent statement is given under oath, subject to perjury at a trial, hearing, or other proceeding, it is not hearsay and is admissible to prove the truth of the matter asserted. See Tex. R. Evid. 801(e)(1)(A); Clark v. State, 881 S.W.2d 682, 695 (Tex. Crim. App. 1994) (previous trial testimony inconsistent with current trial testimony admissible as non-hearsay), cert. denied, 513 U.S. 1156 (1995); Garcia v. State, No. 01-00-00073-CR, 2002 WL 1164135, at *7 (Tex. App.—Houston [1st Dist.] May 30, 2002, pet. ref'd) (mem. op., not designated for publication). These statements may be used as substantive evidence as well as for impeachment purposes. Miranda, 813 S.W.2d at 735.

Kenneth's sworn testimony from the 2007 trial is not hearsay. See Tex. R. Evid. 801(e)(1)(A). Both appellant and the State assert that Kenneth's 2007 testimony was admitted.¹¹ Appellant's point is that it was admissible only for impeachment, and the court should have granted a limiting instruction. Because Kenneth's 2007 trial testimony was not hearsay, however, the jury could consider it as substantive evidence for all purposes, including evidence of appellant's guilt. See Miranda, 813 S.W.2d at 735.

When, as here, a prior inconsistent statement is admitted for purposes other than just impeachment, no limiting instruction is required. Cantrell v. State, 731 S.W.2d 84, 95 (Tex. Crim. App. 1987); Garcia, 2002 WL 1164135, at *7; see also Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001) (because evidence in question was admitted for all purposes, a limiting instruction was not “law applicable to the case,” and the trial court was not required to include a limiting instruction in the charge). When evidence may be considered on any relevant issue in the case, no limiting instruction is necessary. See Prystash v. State, 3 S.W.3d 533, 533 (Tex. Crim. App. 1999). Therefore, the trial court did not err in denying appellant's request for a limiting instruction.

We overrule appellant's fourth issue.

Article 37.07, Section 3(c)

Appellant's fifth through ninth issues all concern Code of Criminal Procedure article 37.07, section 3(c).¹² This article governs the procedures applicable in the punishment phase of a criminal trial. At the time of Belinda's murder in 1999, it provided that when a jury failed to agree on punishment, the court was to declare a mistrial and order a new trial in toto. However, the legislature amended the statute in 2005 to provide that if a jury fails to agree on punishment after a guilty verdict, the court declares a mistrial “only in the punishment phase of the trial, the jury shall be discharged, and no jeopardy shall attach. The court shall impanel another jury as soon as practicable to determine the issue of punishment.” Tex. Code Crim. Proc. art. 37.07, § 3(c).

After returning a guilty verdict in appellant's second trial, the jury was unable to reach a verdict on punishment. The trial court declared a mistrial as to punishment only and impaneled a new jury, and that newly impaneled jury assessed appellant's punishment at imprisonment for life and a $10,000 fine.¹³

A. Ex post facto Prohibition

In his fifth and sixth issues, appellant contends that applying the current version of article 37.07, section 3(c) violates the ex post facto clauses of the United States and Texas constitutions. Both the Texas and federal constitutions prohibit the application of any ex post facto law. U.S. Const. art. I, § 10, cl. 1; Tex. Const. art. I, § 16. The Texas Constitution's provision against ex post facto laws means the same thing as the federal constitution's provision. Grimes v. State, 807 S.W.2d 582, 586 (Tex. Crim. App. 1991); Young v. State, 358 S.W.3d 790, 805 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). Both ex post facto clauses prohibit four types of laws: (1) laws that make an action done before the passing of the law, which was innocent when done, criminal and punish such action; (2) laws that aggravate a crime, or make it greater than it was, when committed; (3) laws that change the punishment and inflict a greater punishment than the law annexed to the crime when it was committed; and (4) laws that alter the legal rules of evidence and require less, or different testimony, to convict the offender than the law required at offense's commission proscription. Carmell v. Texas, 529 U.S. 513, 522 (2000); see Grimes, 807 S.W.2d at 584-87. As the Court of Criminal Appeals explained in Grimes, our sole concern in analyzing an ex post facto claim is whether the statute assigns more severe criminal or penal consequences to an act than did the law in place when the act occurred, and it is irrelevant whether the statutory change touches any vested rights.¹⁴ Grimes, 807 S.W.2d at 587.

Appellant argues that the 2005 amendment imposes a greater punishment than the law in effect at the time of Belinda's death or unfavorably alters the rules of evidence by prohibiting him from introducing evidence in his sentencing retrial that he was, in fact, innocent. We disagree.

In Grimes, the Court of Criminal Appeals addressed whether a similar change to the Code of Criminal Procedure violated either the state or federal ex post facto prohibitions. There the defendant was convicted of aggravated sexual assault and sentenced to life imprisonment and a fine. Id. at 583. Code of Criminal Procedure article 44.29(b) became effective after Grimes's trial but before his conviction was reversed on appeal and provided that, if the court of appeals or the Court of Criminal Appeals ordered a new trial to a defendant based on errors made only in the punishment phase, the cause should be remanded for a new trial on punishment only: “ ‘the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial․’ ” Id. (quoting the version of Tex. Code Crim. Proc. art. 44.29(b) in effect at the time of the appeal).

The court of appeals reversed Grimes's conviction for errors made only during the punishment phase, but determined that applying the version of article 44.29(b) in effect at the time of the appeal would contravene ex post facto prohibitions, and thus ordered the trial court to provide Grimes with a new trial on guilt as well. Id. The Court of Criminal Appeals, however, reversed. Id.

The Grimes court identified the four categories of laws that violate the ex post facto clauses, listed above. Id. at 584-86. The court determined that “application of Article 44.29(b) does not punish as a crime an act previously committed, which was innocent when done; it does not make more burdensome the punishment for a crime after its commission; [and] it does not deprive appellant of any defense available according to law at the time when the act was committed.” Id. at 587. Accordingly, the court concluded, its application was not prohibited by the state or federal constitutions' ex post facto provisions. Id. Courts have rejected similar challenges. See Goodwin v. State, 815 S.W.2d 586, 587-88 (Tex. Crim. App. 1991); Rodriguez v. State, 808 S.W.2d 496, 497 (Tex. Crim. App. 1991); Johnson v. State, 900 S.W.2d 475, 479-80 (Tex. App.—Beaumont 1995), aff'd as modified, 930 S.W.2d 589 (Tex. Crim. App. 1996) (per curiam); Urbano v. State, 808 S.W.2d 519, 520-21 (Tex. App.—Houston [14th Dist.] 1991, no pet.).

Appellant has not identified any meaningful distinction between awarding a new trial solely on punishment based on reversible error that occurred only in the punishment stage of trial (as in Grimes) and a trial court's declaration of a mistrial and ordering a new trial on punishment when a jury is unable to agree on punishment after conviction (as here). Like article 44.29(b), article 37.07, section 3(c) does not punish as a crime an act previously committed, which was innocent when done; it does not make more burdensome the punishment for a crime after its commission; and it does not deprive appellant of any defense available according to the law at the time the act was committed. Cf. Grimes, 807 S.W.3d at 587. Thus, its application does not violate the ex post facto clauses of the United States or Texas constitutions.

Appellant argues that Texas ex post facto jurisprudence is incorrect, but we are bound by these decisions. E.g., Pacas v. State, 612 S.W.3d 588, 596 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd) (“As an intermediate court of appeals, we are bound to follow the precedent of the court of criminal appeals.”); accord Tex. Const. art. V, § 5(a) (providing that Court of Criminal Appeals is the final authority for criminal law in Texas); see also Ex parte Davis, 947 S.W.2d 216, 220 (Tex. Crim. App. 1996) (noting that prohibition against retroactive laws does not apply to purely procedural changes in the law).

We overrule appellant's fifth and sixth issues.

B. Texas Constitution's Retroactive Legislation Ban

In his seventh issue, appellant contends that applying the current version of article 37.07, section 3(c) violates the Texas constitution's ban against retroactive legislation. See Tex. Const. art. I, § 16. This contention fares no better. As the Grimes court explained, assuming this proscription against retroactive legislation applies to criminal cases,¹⁵ it “has never been made applicable to statutes merely affecting matters of procedure which do not disturb vested, substantive rights.” Grimes, 807 S.W.2d at 587. The Grimes court explained, “Clearly, a defendant has no vested right to an entirely new trial when errors relating only to the assessment of his punishment are committed.” Id. The court concluded that the constitutional prohibition against retroactive legislation is not violated by article 44.29(b)'s application.

Again, we see no meaningful distinction between article 44.29(b)'s application and the application of article 37.07, section 3(c). Both provisions permit a retrial on punishment only when a defendant has been found guilty by a jury. See Tex. Code Crim. Proc. arts. 37.07, § 3(c), 44.29(b). In either situation, whether due to errors during the punishment phase or because a convicting jury cannot agree on punishment, a defendant receives a new punishment trial without a second opportunity to challenge his guilt or innocence. Article 37.07, section 3(c)'s application to cases where a convicting jury is unable to agree on punishment does not violate Texas's constitutional prohibition against retroactive legislation. Cf. Grimes, 807 S.W.2d at 587.

We overrule appellant's seventh issue.

C. Jury Trial and Due Process Rights

In his eighth and ninth issues, appellant asserts that applying article 37.07, section 3(c) violates his right to have the same jury decide both guilt/innocence and punishment. He urges that this article “prohibited the punishment jury to hear all of the evidence presented at the guilt/innocence phase of the second trial.” But a defendant has no constitutional right to jury sentencing; instead, defendants are statutorily privileged to opt for jury assessment of punishment. Tanner v. State, 707 S.W.3d 371, 377 (Tex. Crim. App. 2024) (plurality op.); Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006). That being true, a defendant likewise has no constitutional right to the have the same jury decide guilt/innocence and punishment. Erazo v. State, 260 S.W.3d 510, 511-13 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd).

We overrule appellant's eighth and ninth issues.

Speedy Trial

In his tenth issue, appellant contends that the trial court abused its discretion by denying his motion to dismiss the charge because the State violated his Sixth Amendment right to a speedy trial. He attacks the two-and-one-half year period between December 19, 2016 (when the Court of Criminal Appeals issued its mandate granting him a new trial) and June 20, 2019 (when his second trial began). This delay, appellant adds, was exacerbated by the five-year delay to charge him and the State's suppression of exculpatory evidence involving Joe Sanders for a decade.

The Sixth Amendment guarantees a criminally accused's right to a speedy trial. See U.S. Const. amends. VI, XIV. A prompt trial advances three interests: freedom from oppressive pretrial incarceration; mitigation of the anxiety and concern accompanying public accusation; and avoidance of impairment to the accused's defense. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).

The Supreme Court has instructed lower courts to weigh multiple factors in determining whether a speedy trial deprivation has occurred. Barker v. Wingo, 407 U.S. 514, 530 (1972); see Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). These include the length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Barker, 407 U.S. at 530; Roque v. State, 693 S.W.3d 771, 775 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (op. on reh'g). While the State has the burden of justifying the length of delay, the defendant has the burden of proving the assertion of the right. Cantu, 253 S.W.3d at 280. The defendant must also make at least a prima facie showing of prejudice—that the length of delay was presumptively prejudicial. See Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014). We examine the Barker factors individually, and then we must balance all of the factors together to determine whether appellant's right to a speedy trial was violated. Cantu, 253 S.W.3d at 281. In this analysis,

[n]o one factor is either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Instead, the four factors are related and must be considered together along with any other relevant circumstances. As no factor possesses talismanic qualities, courts must engage in a difficult and sensitive balancing process in each individual case.

Id. (quotations omitted); see Barker, 407 U.S. at 522 (“[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case․”).

We review a trial court's assessment of the Barker factors under a bifurcated standard. See Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). For factual questions, the standard is abuse of discretion. Id. Because appellant did not prevail in the trial court, we presume that any disputed fact issues were resolved in favor of the State, and we defer to the implied findings of fact that the record supports. Id. For legal questions, including the overall balancing of the four factors, the standard is de novo. Id.

The following is the chronology of relevant events:

1. Belinda was murdered on January 11, 1999.

2. Appellant was arrested for murder on November 30, 2004.

3. Appellant was indicted for murder on February 28, 2005.

4. Appellant's first jury trial commenced on October 15, 2007.

5. A jury convicted appellant on November 15, 2007 and sentenced him to life in prison on November 19, 2007.

6. This court affirmed appellant's conviction and sentence on December 21, 2010, and the Court of Criminal Appeals affirmed that decision on January 16, 2013. See Temple v. State, 342 S.W.3d 572 (Tex. App.—Houston [14th Dist.] 2010), aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013).

7. Appellant filed an application for a writ of habeas corpus on April 7, 2014.

8. The habeas court held a ten-week hearing on that application in December 2014 and January and February 2015.

9. The habeas judge recommended relief be granted on July 8, 2015.

10. The Court of Criminal Appeals granted relief and remanded appellant's case for a new trial on November 23, 2016. Ex parte Temple, 2016 WL 6903758, at *1. Mandate issued on December 19, 2016.

11. Appellant was released on bond on December 28, 2016.

12. The Harris County District Attorney moved to recuse herself and her office as the prosecutor in the instant case on May 5, 2017.

13. On May 17, 2017, the trial court appointed two District Attorneys pro tem (“DAPT”) to oversee the case. That same day, appellant filed a motion to depose Kenneth Temple.

14. On May 23, 2017, the DAPT sought to obtain the State's file from the Harris County District Attorney's Office.

15. On June 23, 2017, the DAPT obtained the entire case file from the Harris County District Attorney's Office.

16. On July 19, 2017, the State requested adequate time to prepare for Kenneth's deposition.

17. On October 10, 2017, the trial court asked the State to decide by December 12, 2017 whether to proceed again to trial.

18. Kenneth's deposition was taken on November 13, 2017.

19. On December 13, 2017, the State filed an opposed motion for extension of time to make a decision regarding disposition of this case.

20. On December 15, 2017, the trial court set the case for trial (over the State's objection) to begin on June 8, 2018.

21. On April 20, 2018, the State filed an opposed motion for continuance. Appellant opposed the continuance in part on speedy-trial grounds.

22. Appellant filed his motion to dismiss for speedy trial violations on April 23, 2018.

23. The trial court granted the State's motion for continuance, resetting the trial to February 4, 2019.

24. The trial court heard appellant's motion to dismiss for speedy trial violations on October 1, 2018. The trial court took the matter under advisement.

25. Appellant's second jury trial commenced on June 20, 2019.

26. The trial court denied appellant's motion to dismiss on July 2, 2019.

A. Length of Delay

The starting factor is a “double enquiry.” Doggett v. United States, 505 U.S. 647, 651 (1992). Our obligation to address and weigh the Barker factors does not arise unless the defendant first shows that the interval between accusation and trial “has crossed the threshold dividing ordinary from presumptively prejudicial delay.” Gonzales, 435 S.W.3d at 808; see Cantu, 253 S.W.3d at 281. “[I]f the defendant can make a threshold showing of presumptive prejudice, a court must then proceed to consider each of the remaining Barker factors and weigh them.” Gonzales, 435 S.W.3d at 808.

We generally measure the length of delay from the time the accused is arrested or formally charged. Gonzales, 435 S.W.3d at 809 (citing United States v. Marion, 404 U.S. 307, 313 (1971)). “There is no set time element that triggers the analysis,” but the Court of Criminal Appeals has held that “a delay of four months is not sufficient while a seventeen-month delay is.” Cantu, 253 S.W.3d at 281; see also Gonzales, 435 S.W.3d at 808. A delay approaching one year from formal accusation or arrest until trial has been found excessive, triggering the Barker inquiry. See Cantu, 253 S.W.3d at 281; Shaw v. State, 117 S.W.3d 883, 888-89 (Tex. Crim. App. 2003); Celestine v. State, 356 S.W.3d 502, 507 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

To determine whether the delay period is long enough to have presumptively prejudiced appellant, we must first identify the relevant time period to which the Sixth Amendment applies. The parties dispute this threshold issue. Our context is atypical, because we are not looking simply at the time period between arrest or indictment and an initial trial. Appellant was indicted for murder, tried, and convicted. He pursued a direct appeal unsuccessfully but later obtained habeas relief in the form of a new trial. He was released from confinement, tried again, and convicted again. Appellant first raised a speedy trial complaint in 2018 while awaiting retrial.

Appellant urges us to consider three discrete periods in assessing whether his speedy trial right has been violated: (1) from his arrest in November 2004 to his first trial in October 2007; (2) from 2007 to 2016, when he pursued direct appellate and habeas relief; and (3) the time period after the high court granted a new trial. For its part, the State argues that the only pertinent time period is from December 2016 to his retrial.

In the retrial context, Court of Criminal Appeals decisions describing the relevant length of delay have been unclear. In Emery v. State, the court calculated the length of delay for speedy trial purposes from the date of indictment until the date of retrial. 881 S.W.2d 702, 708 (Tex. Crim. App. 1994). Two years later in Knox v. State, the court again addressed a speedy trial claim after a second trial but this time considered only the period of time from the grant of habeas relief to the district court's subsequent order requiring the State to begin retrial within 90 days. 934 S.W.2d 678, 681 (Tex. Crim. App. 1996). The Knox court did not include any time prior to Knox's conviction, the three-year period of the direct appeal, or the subsequent three years of post-conviction state and federal habeas corpus proceedings. See id. In 2003, in Shaw, the court calculated the length of delay period from date of indictment until the second trial, as it had done in Emery. 117 S.W.3d at 889. In none of these cases did the court explain the reasons for each calculation.

The high court's most recent decision on the matter is more illuminating, but nonprecedential. In 2009, the court held that the period of time for a speedy trial analysis in the retrial context began to run, at the earliest, on the date the defendant's conviction and sentence were reversed. Soffar v. State, No. AP-75,363, 2009 WL 3839012, at *39 (Tex. Crim. App. Nov. 18, 2009) (not designated for publication) (per curiam).¹⁶ Although Soffar is unpublished and we do not rely on it as precedent,¹⁷ the court noted that its holding aligned with Supreme Court cases and other state appellate courts. Id. at *39 & n.148 (citing United States v. Ewell, 383 U.S.116, 120-21 (1966), and state cases).

In 2016, the Supreme Court decided Betterman v. Montana, which presented the discrete issue whether the Sixth Amendment's speedy trial guarantee applies to the sentencing phase of a criminal prosecution. 578 U.S. 437, 439 (2016). There, the court clarified that the speedy trial right attaches when a defendant is arrested or formally accused, but detaches and does not apply once a defendant has been found (or pleads) guilty. See id. at 439, 448. As the court explained, the speedy trial right implements the presumption of innocence but terminates upon conviction, after which the presumption no longer applies. Id. at 442, 448-49. The sole remedy for a speedy trial violation—dismissal of the charges—ordinarily “would not be in order once a defendant has been convicted.” Id. at 445.

Since Betterman, the Court of Criminal Appeals apparently has not applied the Barker analysis in context of a retrial. But at least three Texas intermediate appellate courts have done so.¹⁸ See Williams v. State, 642 S.W.3d 896 (Tex. App.—Tyler 2021, no pet.); State v. Davis, 549 S.W.3d 688 (Tex. App.—Austin 2017, pet. ref'd); Hartfield v. State, 516 S.W.3d 57 (Tex. App.—Corpus Christi 2017, pet. ref'd). In Williams and Hartfield, the courts considered only the time period after the defendants' convictions were reversed. Williams, 642 S.W.3d at 900 (discussing Betterman and holding speedy trial clock began to run when defendant's conviction was reversed); Hartfield, 516 S.W.3d at 65 (not discussing the issue, but calculating length of delay from the time conviction was vacated until hearing on motion to dismiss for violation of right to speedy trial).

In Davis, the trial court set aside the indictment on the defendant's motion based on a speedy trial violation. Davis, 549 S.W.3d at 696. The State appealed, and the court of appeals, noting the sparsity of cases on the subject, considered the “greatest possible time span”—from indictment to dismissal—in the interest of justice. Id. at 698 n.1. After weighing and balancing the Barker factors, the court held that the defendant was not denied his right to a speedy trial and reversed. Id. at 710. In a concurring opinion, Justice Goodwin examined the cases mentioned above and expressed her view that the only period of delay that ought to be considered for the speedy trial analysis is the period after the defendant receives appellate relief from the first conviction. Id. at 711-13 (Goodwin, J., concurring).

Mindful of this case law, we turn to appellant's position. As to the first and second time periods he identifies—from his 2004 indictment to his 2007 trial, and then through 2016, when the high court ordered a new trial—appellant argues that the delay during this period should be considered and count against the State because the State suppressed alternative suspect evidence.

Betterman forecloses appellant's contention that we include in the Barker length of delay analysis the time period between his first conviction in 2007 and the grant of habeas relief in 2016. The speedy trial right does not apply during that period. Betterman, 578 U.S. at 439, 448-49; see Williams, 642 S.W.3d at 900.

As to the period from appellant's indictment in 2004 to his first trial in 2007, he was presumed innocent and benefitted from the speedy trial guarantee during this time. Betterman, 578 U.S. at 441. Appellant urges us to weigh this period against the State, however, not because the State took too long to bring him to trial, but because the State failed to disclose alternative suspect evidence that was not revealed until years later. A defendant's protection against this type of prosecutorial misbehavior is found in the Due Process Clause, which appellant successfully invoked in his habeas proceeding. He secured appropriate relief and had a full opportunity to present alternative suspect evidence to a new jury. We are unpersuaded that appellant is entitled to the additional relief of outright dismissal under a speedy trial framework for a due process violation that the Court of Criminal Appeals has already remedied. See, e.g., Cook, 940 S.W.2d at 627-28 & n.7 (“Because we find that it is possible ․ to neutralize the taint of the State's prior misconduct while preserving society's interest in prosecution of criminal activity by reversal and remand, we reject the remedy advocated by appellant, namely dismissal of the prosecution with prejudice and thereby precluding retrial.”); Mitchell, 977 S.W.2d at 578 (explaining that remedy for taint of prosecutorial misconduct in withholding potentially exculpatory evidence is reversal of conviction and remand to trial court for further proceedings, which is not barred by the double jeopardy clause); Ex parte Davis, 957 S.W.2d at 13-14 (despite finding prosecutorial misconduct “reprehensible,” remedy was reversal of conviction on appeal, not dismissal of charge). There is no indication here that the State intended to deprive appellant of his right to a speedy trial at any time before 2007.

Holding otherwise would lead to rather unpalatable outcomes. For example, when a defendant obtains a reversal of a conviction, he may be retried in the normal course of events. Ewell, 383 U.S. at 121. This rule “protects the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error.” Id. Accepting appellant's position would seriously undermine this policy because it would permit—if not require—dismissal of charges on speedy trial grounds almost any time a convicted person obtains a reversal. Such an interpretation of the speedy trial right “would place a premium upon collateral rather than upon direct attack because of the greater possibility that immunization might attach.” Id.

Which brings us to the third delay period appellant identifies—after December 2016. Although Betterman makes clear that the speedy trial right does not extend beyond conviction, the court expressly left for another day whether “the right reattaches upon renewed prosecution following a defendant's successful appeal, when he again enjoys the presumption of innocence.” Betterman, 578 U.S. at 441 n.2. Arguments presented to us by both sides presuppose that the right reattached after December 2016, so we will presume as much without analyzing the issue.

Thus, for purposes of the first Barker factor, we will exclude from the analysis the time period before December 2016. See Betterman, 578 U.S. at 448; Williams, 642 S.W.3d at 900.¹⁹ After appellant's conviction was reversed in 2016, the second trial did not begin until June 2019. The State concedes that this time period suffices to trigger a Barker inquiry as it exceeds the “delay approaching one year” that courts have found sufficiently excessive. See Cantu, 253 S.W.3d at 281; Shaw, 117 S.W.3d at 888-89; Celestine, 356 S.W.3d at 507. Moreover, we consider the extent to which the delay extends beyond the “bare minimum needed to trigger judicial examination of the claim.” Doggett, 505 U.S. at 652. The delay here was more than double the minimum needed to trigger the inquiry. This factor weighs against the State, and we proceed to consider the remaining Barker factors.

B. Reasons for Delay

The burden of justifying the delay falls on the State. Cantu, 253 S.W.3d at 280. The particular reasons for the delay will determine how heavily this factor should weigh against the State. Zamorano, 84 S.W.3d at 649; State v. Wei, 447 S.W.3d 549, 554 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). Although intentional or deliberate prosecutorial delay will weigh heavily against the State, neutral reasons, such as negligence or overcrowded courts, weigh less heavily. Zamorano, 84 S.W.3d at 649-50 (citing Barker, 407 U.S. at 531). And a valid delay should not weigh against the State at all. Wei, 447 S.W.3d at 554 (citing State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999)).

Complicated cases, as opposed to ordinary street crimes, make a longer delay more tolerable. See Deeb v. State, 815 S.W.2d 692, 705-06 (Tex. Crim. App. 1991) (explaining that fifteen-month delay from indictment to trial was not undue because of the complex nature of the case); see also Montez v. State, No. 08-23-00026-CR, 2024 WL 378861, at *7 (Tex. App.—El Paso Jan. 31, 2024, no pet.) (mem. op., not designated for publication) (case involved “documents and exhibits measured in gigabytes,” thirty testifying witnesses, and the recusal of the district attorney and appointment of pro tem counsel to represent the State; most of delay in preparing for trial did not weigh heavily against the State); Holland v. State, Nos. 07-22-00162-CR, 07-22-00163-CR, 07-22-00164-CR, 07-22-00165-CR, 2023 WL 3179233, at *3 (Tex. App.—Amarillo May 1, 2023, pet. ref'd) (mem. op., not designated for publication) (delay slightly exceeding one year did not weigh heavily against State because of serious and complex charges against appellant). And justifiable delays do not count against the government. See Gonzales, 435 S.W.3d at 810; see Shaw, 117 S.W.3d at 889-90 (State entitled to a reasonable period in which to prepare case).

In response to appellant's motion, the State presented numerous reasons for the two and one-half years' time span between the December 2016 mandate and the commencement of appellant's second trial:

Two weeks after the mandate issued, a new Harris County District Attorney took office and she pledged to fully evaluate the instant case to determine whether the Defendant should be subject to a retrial. Four months later, she recused her office, citing a conflict of interest, and the undersigned were appointed. The undersigned then inherited a case that consisted of 33 boxes of files. The case includes an offense report of some 1,400 pages and transcripts of 30 witnesses called to testify during grand jury investigations. The case also includes the transcripts of a five-week jury trial and a ten-week writ hearing. Additionally, the file is replete with various investigations that occurred since the time of the Defendant's trial․

Upon receiving the case, the undersigned candidly informed defense counsel and this Court of the State's intent to objectively review the instant case thoroughly before determining whether the Defendant should stand trial again. It would be strange indeed, if the State's good-faith determination about whether to re-prosecute the Defendant should count against the State.

Much of the relevant delay resulted from the State's evaluation of this complicated case to consider whether a new trial was warranted and for two new prosecutors to review the voluminous files to adequately prepare for trial. Appellant has not questioned this explanation. The reasons proffered by the State are justifiable, given this case's complexity, its lengthy procedural history, the extensive materials to review, and the District Attorney's and special prosecutor's efforts to evaluate whether appellant should be tried again at all. This first factor, therefore, does not weigh heavily against the State, if at all. See Montez, 2024 WL 378861, at *6-7; cf. also Balderas v. State, 517 S.W.3d 758, 768-71 (Tex. Crim. App. 2016); Shaw, 117 S.W.3d at 890; Davis, 549 S.W.3d at 701-04.

C. Assertion of Right

Although a defendant's failure to assert his speedy trial right does not waive the right, it does “make[s] it difficult for a defendant to prove he was denied a speedy trial.” Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). A defendant's failure to timely demand a speedy trial “strongly” indicates that he did not really want a speedy trial and that he was not prejudiced by the lack of one. Id. Accordingly, a defendant's assertion of his speedy trial right (or his failure to assert it) “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Cantu, 253 S.W.3d at 283; accord Balderas, 517 S.W.3d at 771; Gonzales, 435 S.W.3d at 810-11. Further, filing a motion to dismiss instead of a motion for speedy trial generally weakens a speedy trial claim because it shows a desire to have no trial instead of a speedy one. Cantu, 253 S.W.3d at 283 (citing Zamorano, 84 S.W.3d at 651 n.40).

Appellant's first conviction was reversed in December 2016, but he waited until April 2018—after the approximately one-year period courts have found to be an excessive delay—before asserting speedy trial complaints. Moreover, because appellant invoked his speedy trial right via a motion to dismiss, his claim is much less forceful. See Cantu, 253 S.W.3d at 283; Roque, 693 S.W.3d at 778. “The constitutional right to a speedy trial exists to ensure speedy trials, not to create an opportunity for a criminal defendant to have his case dismissed by voluntarily accepting delay and then strategically asserting the right and relying on the very delay he purposefully endured.” Johnson v. State, 901 S.W.2d 525, 530 (Tex. App.—El Paso 1995, pet. ref'd); see also Shaw, 117 S.W.3d at 890; State v. Dominguez, No. 03-16-00095-CR, 2017 WL 4583210, at *4 (Tex. App.—Austin Oct. 12, 2017, no pet.) (mem. op., not designated for publication) (“Dominguez's deliberate decision to avoid attempting to move his case into court for 32 months weighs very heavily against him.”).

This factor weighs against appellant.

D. Prejudice to the Accused Resulting from Delay

“Because ‘pretrial delay is often both inevitable and wholly justifiable,’ the fourth Barker factor examines whether and to what extent the delay has prejudiced the defendant.” Cantu, 253 S.W.3d at 285 (quoting Doggett, 505 U.S. at 656). We must analyze this factor “in light of the defendant's interests that the speedy-trial right was designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to minimize the accused's anxiety and concern, and (3) to limit the possibility that the accused's defense will be impaired.” Id.

Of these forms of prejudice, the last “is the most serious ‘because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ ” Id. (quoting Dragoo, 96 S.W.3d at 316). Impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony can rarely be shown. Barker, 407 U.S. at 532. Affirmative evidence of particularized prejudice is not essential to every speedy trial claim because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify. Doggett, 505 U.S. at 655. And the presumption of prejudice grows and intensifies over time. Id. at 656. However, the presumption of prejudice to a defendant's ability to defend himself can be “extenuated ․ by the defendant's acquiescence” in the delay. Id. at 658.

The defendant has the burden to make some showing of prejudice. Balderas, 517 S.W.3d at 772. When a defendant makes a “prima facie showing of prejudice,” the State carries “ ‘the obligation of proving that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay.’ ” Munoz, 991 S.W.3d at 826 (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App. 1973)). In Doggett, when the government's negligence caused a trial delay six times as long as that generally sufficient to trigger judicial review, the court held that the defendant was entitled to relief unless the presumption of prejudice is extenuated or “persuasively rebutted.” Doggett, 505 U.S. at 658.²⁰

We will address the two ways in which appellant contends he was prejudiced by the delay; separately, we have also independently studied the record to determine whether the presumptive prejudice was extenuated or “persuasively rebutted.” Doggett, 505 U.S. at 658. In conducting our review, we focus on the period since the issuance of the appellate mandate in December 2016. See Davis, 549 S.W.3d at 708.

Turning to the forms of prejudice identified above, appellant was released on bond shortly after mandate issued in December 2016. Thus, appellant did not suffer oppressive pretrial incarceration as a form of prejudice during the relevant delay period. As to the second interest—minimizing the accused's anxiety and concerns—appellant does not address this consideration.

Appellant focuses on the third consideration, impairment to the defense. First, he asserts that he “attempted to locate and identify the witnesses that might have walked out of the school with Belinda on January 11, 1999,” who he claims were “never identified.” These witnesses, appellant argues, might have supported his timeline theory. This is not the first time appellant has raised this argument—he litigated this issue during the multi-week habeas hearing. See Ex parte Temple, 2016 WL 6903758 (Yeary, J., concurring). Judge Yeary summarized this issue:

The School Witnesses: Another investigating officer, Detective Tracy Shipley, interviewed several witnesses at Belinda's school with respect to certain matters, including what time Belinda had left the school to return home on the day she was murdered. Defense counsel was given a copy of Shipley's offense report at trial which summarized these interviews. None of these witnesses could say precisely what time Belinda drove off. The timing of Belinda's departure was critical. The later Belinda left the school, the later she would have arrived, first at her in-laws' home to pick up some homemade soup, and then at her own home. This would have narrowed Applicant's window of opportunity to have staged the burglary, killed Belinda, cleaned himself up afterwards from the inevitable blow-back from the shotgun blast, and then loaded [Evan] into his truck to leave the scene.

These witness interviews were tape-recorded, however, and defense counsel was not made aware of the audio recordings during trial. Telephone records that were admitted at trial showed that Belinda called Applicant at about 3:30 p.m. Applicant claims that the audio recordings reveal that two of the school witnesses could establish that Belinda was still in the parking lot of her school when she spoke to Applicant on her phone. This was exculpatory, Applicant claims, because it demonstrated that she had not yet left the school as late as 3:30, when the phone records showed that this conversation took place.

The record does not support Applicant's contention. The writ record contains the actual audio recording of one of these two witnesses, Courtney Ferguson, which I have listened to. Ferguson does not say at any point in the interview that she ever saw Belinda talking on her phone. The audio recording of her testimony lacks the exculpatory value Applicant attributes to it. The recording of the statement of the other witness, Margaret Christen, is not in the writ record, so I cannot presently tell whether she ever said that she saw Belinda on the phone. Additionally, Applicant claims that both Ferguson and Christen identified a third witness, Denise Lavoris, who was present and who (as the habeas court finds) “would have helped the defense timeline.” But the record reveals nothing about what Lavoris might have had to say about whether Belinda was on the phone with Applicant while still in the school parking lot. It is thus pure speculation to say that she would have been helpful to the defense at trial.

Id.

The record regarding these two witnesses was further developed at the hearing on appellant's motion to dismiss. At the hearing, the State introduced a recording of an interview with Lavoris, in which she specifically stated she did not recall seeing Belinda on a cell phone when she was leaving. Christen, who testified at appellant's second trial, stated that Belinda left her office between 3:20 and 3:30 p.m., and she did not see Belinda leave the school. Neither Ferguson nor Lavoris testified at appellant's second trial, and appellant does not suggest that they were unavailable.

As the Supreme Court has explained, “[b]efore trial ․ an estimate of the degree to which delay has impaired an adequate defense tends to be speculative. The denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trial—when prejudice can be better gauged—would also be denied.” United States v. MacDonald, 435 U.S. 850, 858-59 (1978). Here, appellant filed his speedy trial motion before the second trial, but we have the record from that trial and can better gauge what, if any, prejudice resulted due to any purportedly dimming memories. Appellant has not directed us to any witnesses, other than those discussed above, who would or may have offered additional exculpatory evidence had the second trial occurred sooner than it did. Appellant did not call either Ferguson or Lavoris to testify at his second trial nor does he suggest on appeal that they were unavailable. And Christen's testimony did not aid appellant's cause.

Appellant also cites the State's withholding of alternative suspect evidence in support of his prejudice argument. He again emphasizes that potential exculpatory evidence regarding Joe Sanders was not disclosed timely. As we have explained, however, appellant secured habeas relief based on that prosecutorial misconduct, and he received a new trial. Many witnesses testified at the second trial relevant to his defensive alternative suspect theory, and appellant does not identify any witness he wanted to call but could not due to unavailability. We note that most if not all material witnesses relevant to appellant's defensive theory had previously provided written statements, grand jury testimony, or testimony at the first trial. The record does not indicate that any material defensive testimony, previously unsecured, was missing or unavailable after December 2016. Nor is there evidence that any defense witness was unavailable during the second trial because of the delay from December 2016 to June 2019.²¹ When, during the second trial, any alternative suspect witness had difficulty recalling facts, the attorneys regularly refreshed the witness's memory with prior statements without objection. And although several witnesses stated that they did not remember certain details, such as how many or which officers they spoke to, on which days they were interviewed, or how often Joe or his friends skipped school, appellant has not identified, nor have we found, indications that any material facts were forgotten during the relevant time period.

Finally, we presume that the delay here adversely affected appellant's ability to defend himself, but this presumption is extenuated by appellant's longtime acquiescence in the delay. See Dragoo, 96 S.W.3d at 315.

Thus, we conclude that appellant has not shown that he suffered prejudice resulting from the delay from December 2016 to June 2019 in the respects he claims. Moreover, we conclude that the present record sufficiently extenuates the delay and persuasively rebuts the presumptive prejudice. This factor does not weigh in appellant's favor.

E. Balancing the Factors

The “balancing test as a whole ․ is a purely legal question.” Cantu, 253 S.W.3d at 282. The accused's burden of proof in showing that he asserted the right, along with the degree of prejudice shown by the record “ ‘varies inversely’ with the State's degree of culpability for the delay,” and, thus, “the greater the State's bad faith or official negligence and the longer its actions delay a trial, the less a defendant must show actual prejudice or prove diligence in asserting his right to a speedy trial.” Id. at 280-81. We must apply the balancing test “with common sense and sensitivity to ensure that charges are dismissed only when the evidence shows that a defendant's actual and asserted interest in a speedy trial has been infringed.” Id.

Here, the only delay that could be said to weigh against the State is the two and one-half years between the Court of Criminal Appeals mandate and the start of appellant's second trial. This delay was not intended to hamper the defendant or otherwise motivated by an illegitimate purpose, and thus, it weighs only slightly against the State, if at all. However, the third Barker factor, assertion of the speedy trial right, weighs against appellant under the facts of this case. He waited sixteen months after his conviction was reversed before asserting the right and even then raised the issue in a motion to dismiss, as opposed to a motion for a speedy trial. See Balderas, 517 S.W.3d at 773. This factor weighs heavily against appellant. Regarding the fourth factor, appellant appears to have acquiesced to much of the delay, and the record sufficiently rebuts any presumptive prejudice. We hold that the four Barker factors, balanced together, weigh against a speedy trial violation. See id.; see also Roque, 693 S.W.3d at 779; Davis, 549 S.W.3d at 710.

Appellant, however, likens his circumstances to two cases in particular that he claims compel reversal and dismissal. See Orand v. State, 254 S.W.3d 560 (Tex. App.—Fort Worth 2008, pet. ref'd); Deluna v. State, 05-10-01339-CR, 2012 WL 3642308 (Tex. App.—Dallas Aug. 27, 2012, pet. ref'd) (mem. op., not designated for publication). In both Orand and Deluna, the courts of appeals reversed the defendants' convictions on speedy trial grounds and rendered judgments of acquittal. A close study of each decision, however, shows they do not aid appellant's cause.

In Orand, the State failed to apprehend the defendant for over eleven years after he was indicted and offered no explanation why. Orund, 254 S.W.3d at 566-67. The court weighed this factor “very, very heavily” against the State. Id. at 567. Although the defendant did not assert his right to a speedy trial until after judgment, the court did not weigh that fact heavily against him because he went to trial merely six months after arrest, and he did not acquiesce to the delay. Id. at 568-69. Regarding prejudice, the court noted that, due to the eleven years that passed between indictment and arrest—during which the defendant did not know he had been indicted—his memory faded, he could not contact witnesses, and his ability to find and question witnesses or cross-examine the State's witnesses had impaired his defense. Id. at 569-70.

Deluna was another case where years passed (eight) between the defendant's indictment and his arrest. Deluna, 2012 WL 3642308, at *2. As in Orand, the State offered no explanation for its failure to arrest the defendant—even though he was twice in custody on unrelated charges—and the defendant did not know he had been indicted. Id. at *4. The substantial delay between indictment and arrest, like in Orand, made it impossible for the defendant to conduct an effective investigation or cross-examine witnesses against him. Id. at *5-6.

As is apparent from our discussion, appellant's circumstances are quite different from those in Orand and Deluna.

We overrule appellant's tenth issue.

Conclusion

Having overruled each of appellant's issues, we affirm the trial court's judgment.

FOOTNOTES

1.   The habeas trial judge recommended relief be granted on appellant's Brady claim, see Brady v. Maryland, 373 U.S. 83 (1963), but denied relief on appellant's ineffective assistance of counsel and actual innocence claims. See Ex parte Temple, 2016 WL 6903758, at *1, 3. Four Court of Criminal Appeals judges agreed with the trial court. See id. Judge Yeary, in a concurring opinion, would have granted relief on appellant's ineffective assistance claim rather than on his Brady claim. See id. (Yeary, J., concurring).

2.   The second law enforcement official to interview appellant on January 11, Detective Bill Valerio, noted that appellant “evaded direct questions regarding the time period in which he visited Home Depot.”

3.   After the mistrial on punishment, appellant filed two separate applications for pretrial writs of habeas corpus, both of which the trial court denied. This court affirmed. See Ex parte Temple, 636 S.W.3d 332, 334 (Tex. App.—Houston [14th Dist.] 2021, pet. ref'd).

4.   “Motive is a significant circumstance indicating guilt.” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); see also Nisbett v. State, 552 S.W.3d 244, 265 (Tex. Crim. App. 2018) (“Marital difficulty can establish a motive for murder.”).

5.   The doctor who performed Belinda's autopsy estimated her time of death at between 2:00 and 7:00 p.m. But officers testified she likely died before 4:40 p.m. because of unanswered phone calls from her sister and Kenneth around that time.

6.   Kenneth had a stroke in or around 2014. The parties took his deposition in 2017.

7.   392 U.S. 219 (1968).

8.   No. 01-12-00656-CR, 2013 WL 3155935 (Tex. App.—Houston [1st Dist.] June 20, 2013, pet. ref'd) (mem. op., not designated for publication).

9.   105 F.3d 117 (3d Cir. 1997).

10.   In Harris v. New York, 401 U.S. 222 (1971), a case decided after Harrison, the Supreme Court held that a confession obtained in violation of the defendant's Miranda rights could be used to impeach the defendant, even though that statement was inadmissible in the prosecution's case-in-chief. Id. at 224-26. The court explained that “the shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Id. at 226.

11.   A transcribed copy of Kenneth's 2007 trial testimony was neither offered nor admitted.

12.   Appellant refers to article 39.14, section 3(c) in his issues presented, but only discusses article 37.07, section 3(c) in support of these issues. Article 39.14 pertains to discovery in a criminal trial and does not have any bearing on his argument.

13.   Before the jury was impaneled, appellant filed an application for pretrial writ of habeas corpus, challenging the constitutionality of article 37.07, which the trial court denied. This court affirmed the trial court's decision. See Ex parte Temple, 636 S.W.3d at 334.

14.   A “vested right” is a right that was acquired under a law existing at a particular point in time. Young, 358 S.W.3d at 806 n.8.

15.   As the State notes, courts have observed article I, section 16 applies only in civil cases and consistently hold that statutes relating to procedures or remedies do not fall within this constitutional ban. E.g., Brooks v. Tex. Employers Ins. Assoc., 358 S.W.2d 412, 414-15 (Tex. App.—Houston [14th Dist.] 1962, writ ref'd n.r.e.). The Grimes court “assumed without deciding” that it applies in criminal cases, and we do as well. Grimes, 807 S.W.2d at 587.

16.   Soffar's conviction was reversed based on his counsel's ineffective assistance during the first trial. The court rejected Soffar's argument that the speedy trial right, which effectuates the presumption of innocence, should apply after conviction. Id. at *39. Further, the court stated that accepting Soffar's position that the speedy trial analysis should include the period of delay from arrest through retrial would mean that,an individual whose conviction is later reversed may be immune from re-prosecution based on the denial of the right to a speedy trial. Such a result would undermine the policy interests that have been preserved by the Supreme Court's interpretation of the Speedy Trial Clause—society's interest in prosecuting persons accused of crimes, “rather than granting them immunization because of legal error at a previous trial” and making it more probable that appellate courts will overturn convictions when necessary.Id. (quoting Ewell, 383 U.S. at 121).

17.   Tex. R. App. P. 77.3.

18.   We have found one intermediate appellate court case pre-dating Betterman that calculated the length of delay from denial of petition for certiorari until retrial. Clarke v. State, 928 S.W.2d 709, 713-14 (Tex. App.—Fort Worth 1996, pet. ref'd).

19.   Other state court decisions, both pre- and post-Betterman, follow similar reasoning. See, e.g., State v. Ford, 519 P.3d 456, 458-59 (Kan. 2022); State v. Rohwedder, 436 P.3d 324, 329 (Ut. App. 2018); State v. Kula, 254 Neb. 962, 579 N.W.2d 541, 546 (1998); Icgoren v. State, 103 Md. App. 407, 653 A.2d 972, 978 (1995); Mitchell v. State, 572 So.2d 865, 870-71 (Miss. 1990).

20.   In an unpublished disposition, the Court of Criminal Appeals has construed Doggett to mean that, when the delay is presumptively prejudicial, the accused is absolved from the requirement to demonstrate prejudice. Gonzales v. State, No. PD-0724-12, 2013 WL 765575, at *1 (Tex. Crim. App. Feb. 27, 2013) (not designated for publication).

21.   One witness, Officer Valerio, who interviewed appellant on January 11, 1999, could not be located. But the parties stipulated to what he would have said, based on his offense report. That stipulation was admitted into evidence, and Detective Leithner read it to the jury.

Kevin Jewell Justice