James Gambrell, Jr. v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00176-CR
No. 10-23-00181-CR

JAMES GAMBRELL,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 12th District Court
Walker County, Texas
Trial Court Nos. 30096 & 30238

MEMORANDUM OPINION

In appellate cause numbers 10-23-00176-CR and 10-23-00181-CR, pro se appellant,

James Gambrell, complains about the trial court’s denial of his “’Motion to Dismiss’ for

lack of speedy trial.” Specifically, in three issues that are identical in both appellate cause

numbers, Gambrell contends that: (1) the trial court erred by denying his motion to

dismiss for lack of a speedy trial; (2) the trial court erred by refusing to acknowledge

purported prosecutorial misconduct stemming from the Walker County District
Attorney’s Office contacting Child Protective Services (“CPS”) upon Gambrell’s arrest for

abandoning/endangering a child with intent to return; and (3) his trial counsel was

ineffective for failing to insist on a speedy trial. Because we overrule all of Gambrell’s

issues in both appeals, we affirm the judgment of the trial court.

Background

On August 26, 2021, in trial court cause number 30096, which corresponds with

appellate cause number 10-23-00176-CR, Gambrell was charged by indictment with

assault family violence with a prior conviction for assault family violence. This

indictment alleged that he struck Marshaye Carrington, a person with whom Gambrell

had a dating relationship, in the face with his hand.

Later, on November 22, 2021, in trial court cause number 30238, which

corresponds with appellate cause number 10-23-00181-CR, Gambrell was charged by

indictment with two counts of aggravated assault with a deadly weapon and one count

of unlawful possession of a firearm by a felon. Among other things, this indictment

alleged that Gambrell threatened Yolanda Lawson and Carrington with imminent bodily

injury by using or exhibiting a deadly weapon, a firearm. The indictment also included

an enhancement paragraph referencing Gambrell’s prior felony conviction for accident

causing serious bodily injury or death.

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Although represented by counsel, Gambrell filed multiple pro se motions for

speedy trial and motions to dismiss. After a hearing, the trial court denied Gambrell’s

latest motion to dismiss for lack of speedy trial.

Thereafter, Gambrell entered into a plea agreement with the State. Gambrell

pleaded guilty to one count of aggravated assault with a deadly weapon and the

enhancement paragraph in trial court cause number 30238. The trial court accepted

Gambrell’s guilty plea, made a deadly-weapon finding, found Gambrell guilty, and

found the enhancement paragraph to be true. Counsel for Gambrell then filed a motion

requesting that the trial court consider admitted unadjudicated offenses—namely, the

charged offense in trial court cause number 30096 and the remaining charged offenses in

trial court cause number 30238—during sentencing such that further prosecution of the

unadjudicated offenses would be barred. The State agreed to the motion, and the trial

court granted the motion and ordered the dismissal of the remaining charged offenses.

The trial court sentenced Gambrell to eight years in prison and certified Gambrell’s

right to appeal matters raised by written motion filed and ruled on before trial and not

withdrawn or waived. These appeals followed.

Appellate Cause Number 10-23-00176-CR (Trial Court Cause Number 30096)

GAMBRELL’S SPEEDY-TRIAL CLAIM

In his first issue in appellate cause number 10-23-00176-CR, Gambrell argues that

the trial court erred by denying his motion to dismiss for lack of a speedy trial. However,

Gambrell v. State Page 3
as mentioned above, the trial court signed an order dismissing all of the remaining

charged offenses, including the offense charged in this appeal. Because the indictment in

this appeal was dismissed, we conclude that this complaint is moot. See Jack v. State, 149

S.W.3d 119, n.10 (Tex. Crim. App. 2004) (“A case becomes moot on appeal when the

judgment of the appellate court can no longer have an effect on an existing controversy

or cannot affect the rights of the parties.”); Chacon v. State, 745 S.W.2d 377, 378 (Tex. Crim.

App. 1988) (noting that “generally a cause, issue[,] or proposition is or becomes moot

when it does not, or ceases to, rest on any existing fact or right”); see also In re Shanks, No.

13-14-00328-CR, 2014 Tex. App. LEXIS 7818, at **2-3 (Tex. App.—Corpus Christi July 17,

2014, orig. proceeding) (mem. op.) (per curiam) (dismissing a mandamus petition

because relator’s speedy-trial complaint was mooted when the trial court granted the

State’s motion to dismiss the indictment). Accordingly, we overrule Gambrell’s first issue

in appellate cause number 10-23-00176-CR.

PROSECUTORIAL MISCONDUCT

In his second issue, Gambrell contends that the trial court erred by refusing to

acknowledge purported prosecutorial misconduct stemming from the Walker County

District Attorney’s Office’s contact with CPS upon Gambrell’s arrest for

abandoning/endangering a child with intent to return. Specifically, Gambrell complains

that the State made “false allegations” of child endangerment when addressing the

Gambrell v. State Page 4
absence of Carrington as a witness at trial during the hearing on Gambrell’s motion for

speedy trial.

Generally, to preserve error regarding alleged prosecutorial misconduct, an

appellant must: (1) object on specific grounds; (2) request an instruction to disregard any

matter improperly placed before the jury; and (3) move for mistrial. See Penry v. State,

903 S.W.2d 715, 764 (Tex. Crim. App. 1995); see also Salas-Trevino v. State, No. 10-19-00089-

CR, 2020 Tex. App. LEXIS 6969, at *4 (Tex. App.—Waco Aug. 27, 2020, no pet.) (mem. op.,

not designated for publication). The record does not demonstrate that Gambrell satisfied

each of the elements listed above to preserve error regarding alleged prosecutorial

misconduct.

And even if he had preserved this complaint, we note that section 261.101(b) of the

Texas Family Code provides that:

If a professional has reasonable cause to believe that a child has been abused
or neglected or may be abused or neglected, or that a child is a victim of an
offense under Section 21.11, Penal Code, and the professional has
reasonable cause to believe that the child has been abused as defined by
Section 261.001, the professional shall make a report not later than the 48th
hour after the hour the professional first has reasonable cause to believe that
the child has been or may be abused or neglected or is a victim of an offense
under Section 21.11, Penal Code.

TEX. FAM. CODE ANN. § 261.101(b). Thus, under section 261.101(b) of the Texas Family

Code, the State was required to report any abuse or neglect if there was reasonable cause.

See id. And other than bald assertions that the allegations of child endangerment were

false, Gambrell does not direct us to any evidence in the record demonstrating that the
Gambrell v. State Page 5
State did not have reasonable cause to report. We therefore overrule Gambrell’s second

issue.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his third issue, Gambrell asserts that his trial counsel was ineffective for failing

to emphasize Gambrell’s speedy-trial claims.

As noted above, Gambrell negotiated a plea with the State, and the trial court

certified Gambrell’s right to appeal only those matters raised by written motion and ruled

on before trial and not withdrawn or waived. See TEX. R. APP. P. 25.2(a)(2)(A); Ex parte

Reedy, 282 S.W.3d 492, 501 (Tex. Crim. App. 2009) (“Following a negotiated guilty plea, a

defendant has only a limited right to appeal; he may appeal only those matters that were

raised by written motion filed and rule on before trial, or specific issues that the trial court

has granted him permission to appeal.” (internal citation & quotation omitted)). The

record does not contain a ruling nor permission from the trial court regarding the right

to appeal a claim for ineffective assistance of counsel. Because Gambrell did not raise nor

obtain permission to appeal an ineffective-assistance-of-counsel claim, we overrule

Gambrell’s third issue in appellate cause number 10-23-00176-CR.

Appellate Cause Number 10-23-00181-CR (Trial Court Cause Number 30238)

GAMBRELL’S SPEEDY-TRIAL CLAIM

In his first issue in appellate cause number 10-23-00181-CR, Gambrell argues that

the trial court erred by denying his motion to dismiss for lack of a speedy trial.

Gambrell v. State Page 6
The Sixth Amendment to the United States Constitution guarantees that an

“accused shall enjoy the right to a speedy . . . trial.” U.S. CONST. amend. VI. This right

was made applicable to the states by the Due Process Clause of the Fourteenth

Amendment. Id. amend. XIV; see Klopfer v. North Carolina, 386 U.S. 213, 223-26, 87 S. Ct.

988, 993-95, 18 L. Ed. 2d 1 (1967). The Texas Constitution likewise provides the accused

the right to a speedy trial. TEX. CONST. art. 1, § 10. The Texas Court of Criminal Appeals

has traditionally analyzed the denial of a speedy trial under state law using the factors

outlined in federal law. See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992); see

also State v. Wei, 447 S.W.3d 549, 553 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).

We review a trial court’s decision on a speedy-trial claim under a bifurcated

standard. State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011). Legal issues

are reviewed de novo while factual findings are reviewed for an abuse of discretion. Id.

If a violation of a defendant’s right to a speedy trial is established, the only possible

remedy is dismissal of the prosecution. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim.

App. 2003) (citing Strunk v. United States, 412 U.S. 434, 440, 93 S. Ct. 2260, 2263, 37 L. Ed.

56 (1973)); Porter v. State, 540 S.W.3d 178, 181 (Tex. App.—Houston [1st Dist.] 2017, pet.

ref’d).

Typically, a speedy-trial claim is evaluated through the balancing test outlined in

Barker v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2191-93, 33 L. Ed. 2d 101 (1972). The

Gambrell v. State Page 7
Barker factors are the length of the delay, the reason for the delay, the defendant’s

assertion of his right, and prejudice to the defendant. Id.

Length of Delay

The length of the delay is measured from the time the defendant is arrested or

formally accused until the time of trial or a defendant’s demand for a speedy trial.

Gonzales v. State, 435 S.W.3d 801, 809 (Tex. Crim. App. 2014); Dragoo, 96 S.W.3d at 313;

Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). This factor is, to some extent,

a triggering mechanism, so that there is no necessity for inquiry into the other factors that

go into the balance until passage of a period of time that is, on its face, unreasonable

under the circumstances. Barker, 407 U.S. at 530, 92 S. Ct. at 2192; see Dragoo, 96 S.W.3d at

313. In general, a delay approaching one year is unreasonable enough to trigger the full

Barker analysis. Dragoo, 96 S.W.3d at 313.

In trial court cause number 30238, Gambrell was indicted for, among other things,

one count of aggravated assault with a deadly weapon on November 22, 2021. Although

represented by counsel, Gambrell first asserted his right to a speedy trial in a pro se

motion filed on August 31, 2022. He filed a subsequent pro se speedy-trial motion on

November 10, 2022, and pro se motions to dismiss on April 26, 2023, and May 3, 2023.

This delay is long enough to trigger the full Barker analysis, and this factor weighs against

the State.

Gambrell v. State Page 8
Reason for Delay

When a court assesses the second Barker factor, “different weights should be

assigned to different reasons” for the delay. Barker, 407 U.S. at 531, 92 S. Ct. at 2192;

Dragoo, 96 S.W.3d at 314. Some reasons are valid and “serve to justify appropriate delay.”

Dragoo, 96 S.W.3d at 314. However, in the absence of an assigned reason for the delay, a

court may presume neither a deliberate attempt on the part of the State to prejudice the

defense nor a valid reason for the delay. Id.

At the hearing on Gambrell’s motion to dismiss for lack of speedy trial, the trial

court denied Gambrell’s motion and noted the following:

Mr. Gambrell, your case will be one of the cases on the docket for trial next
month. I don’t know if it will be reached or not. Unfortunately[,] we can
only try one a month. I have got to share this courtroom with Judge Ridley,
and we each have two other counties to go to. But I’m aware that you have
been in jail for 285 days. So we will get to you as soon as we can. All right.

Additionally, Carrington, who was a victim and witness, was missing for an extended

period of time. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192 (“Finally, a valid reason, such

as a missing witness, should serve to justify appropriate delay.”). Gambrell testified that

he did not know where Carrington was, and the record also shows subpoenas for

Carrington returned unserved. Furthermore, some of the delay is attributable to the large

number of pro se filings by Gambrell even though he was represented by counsel, as well

as Gambrell being a fugitive and his arrest for state-jail felony abandoning/endangering

a child with intent to return and misdemeanor possession of marihuana in San Jacinto

Gambrell v. State Page 9
County, Texas, after his release on bail. See State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim.

App. 1999) (“And delay which is attributable in whole or in part to the defendant may

even constitute a waiver of a speedy trial claim.”); see also Dickey v. Florida, 398 U.S. 30,

48, 90 S. Ct. 1564, 1574, 26 L. Ed. 2d 26 (1970) (Brennan, J., concurring) (noting that a

defendant may be “disentitled to the speedy-trial safeguard in the case of a delay for

which he has, or shares, responsibility”). We conclude that this factor weighs against

Gambrell.

Assertion of the Right

A defendant has the responsibility to assert his right to a speedy trial. Cantu v.

State, 253 S.W.3d 273, 283 (Tex. Crim. App. 2008). The lack of a timely demand for a

speedy trial strongly indicates that a defendant did not really want a speedy trial and that

he was not prejudiced by the lack of one. Dragoo, 96 S.W.3d at 314. Filing for a dismissal

instead of a speedy trial will generally weaken 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.

Gambrell filed several motions for speedy trial, but he also filed motions to

dismiss, which, as stated in Cantu, weakened his speedy-trial claim. See id. Additionally,

the record reflects that around the time Gambrell first asserted his speedy-trial right,

appointed counsel filed a writ of habeas corpus on behalf of Gambrell, arguing that

Gambrell’s bail was excessive. Based on our review of the record, we cannot say that this

factor weighs in favor of Gambrell.

Gambrell v. State Page 10
Prejudice to the Accused

When a court assesses the final Barker factor, it must do so in light of the interests

of defendants the speedy-trial right was designed to protect, which includes the

following: (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. See Barker, 407 U.S. at 532, 92 S. Ct. at 2193; see also Dragoo, 96 S.W.3d at 316.

Gambrell’s complaint regarding prejudice is that during his incarceration, he lost

his job, spent all his financial resources, lost his home, and can no longer locate his

prospective witness, Carrington. He further contends that he suffered a greater degree

of anxiety and concern than otherwise associated with being charged with a crime,

although there is nothing in the record to substantiate that other than this blanket

assertion in Gambrell’s brief to this Court.

Gambrell was indicted in trial court cause number 30238 on November 22, 2021.

He later made bail in this matter on March 9, 2022. However, on July 20, 2022, the State

filed a motion to revoke Gambrell’s bail because he was arrested and charged with a state-

jail felony offense of abandoning/endangering a child with intent to return and a class B

misdemeanor offense of possession of marihuana in an amount less than two ounces

while out on bail. The trial court signed an order revoking Gambrell’s bail and increased

the bail amount for each offense in this matter.

Gambrell v. State Page 11
The time from when Gambrell was first indicted in trial court cause number 30238

until when he ultimately pleaded guilty was approximately eighteen months, although,

as mentioned above, Gambrell was not incarcerated for that entire period. Nevertheless,

Gambrell received credit on his sentence for his pretrial incarceration. This amounted to

533 days of credit. See Starks v. State, 266 S.W.3d 605, 612 (Tex. App.—El Paso 2008, no

pet.) (holding that appellant’s twenty-five month pretrial incarceration was not

oppressive when appellant received credit on his sentence for time served and appellant

ultimately pleaded guilty to the charges); United States v. Casas, 425 F.3d 23, 34-35 (1st Cir.

2005) (holding defendants’ allegations of anxiety and concern during a forty-one month

period of pretrial incarceration was insufficient to show a violation of the speedy-trial

right when time served was credited against sentences they received upon conviction);

see also Brunson v. State, No. 10-08-00312-CR, 2009 Tex. App. LEXIS 8922, at **9-11 (Tex.

App.—Waco Nov. 18, 2009, no pet.) (mem. op., not designated for publication) (holding

that a sixteen-month period of pretrial incarceration was not oppressive because

appellant received credit on his sentence for time served after pleading guilty to the

charged offense).

And as to Gambrell’s claim of having suffered from heightened anxiety and

concern, we note that any criminal charge is certain to bring a level of anxiety and concern

with it; however, Gambrell failed to introduce any evidence that the anxiety he suffered

either was abnormal or caused his case prejudice. See Brunson, 2009 Tex. App. LEXIS

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8922, at *11 (citing Goodrum v. Quarterman, 547 F.3d 249, 263 (5th Cir. 2008)

(“[G]eneralized expressions of anxiety and concern amount to little more than a nominal

showing of prejudice.”). Gambrell has not demonstrated sufficient personal or defense

prejudice. As such, this factor weighs against Gambrell.

Balancing

In balancing the four factors, we find that although the delay was lengthy and

Gambrell had been in jail for an extended period of time, Gambrell contributed to the

delay, Gambrell’s assertion of the speedy-trial right conflicted with appointed counsel’s

efforts to reduce Gambrell’s bail, and the prejudice to Gambrell was slight. Therefore,

when balanced together, the weight of the four factors is against a finding of a violation

of Gambrell’s right to a speedy trial. Accordingly, the trial court did not err by denying

Gambrell’s motion to dismiss for lack of a speedy trial. We overrule Gambrell’s first issue

in appellate cause number 10-23-00181-CR.

PROSECUTORIAL MISCONDUCT

In his second issue in appellate cause number 10-23-00181-CR, Gambrell reasserts

his second issue from appellate cause number 10-23-00176-CR—that is, the Walker

County District Attorney’s Office engaged in prosecutorial misconduct by contacting CPS

upon Gambrell’s arrest for abandoning/endangering a child with intent to return.

Specifically, Gambrell complains that the State made “false allegations” of child

endangerment when addressing the absence of Carrington as a witness at trial during the

Gambrell v. State Page 13
hearing on Gambrell’s motion for speedy trial. We have already addressed the merits of

this contention in appellate cause number 10-23-00176-CR. Thus, for the same reasons as

addressed in appellate cause number 10-23-00176-CR, we overrule Gambrell’s second

issue in appellate cause number 10-23-00181-CR.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his third issue, Gambrell complains that his trial counsel was ineffective for

failing to emphasize Gambrell’s speedy-trial claims.

As mentioned in our analysis of Gambrell’s third issue in appellate cause number

10-23-00176-CR, Gambrell negotiated a plea with the State, and the trial court certified

Gambrell’s right to appeal only those matters raised by written motion and ruled on

before trial and not withdrawn or waived. See TEX. R. APP. P. 25.2(a)(2)(A); Ex parte Reedy,

282 S.W.3d at 501 (“Following a negotiated guilty plea, a defendant has only a limited

right to appeal; he may appeal only those matters that were raised by written motion filed

and rule on before trial, or specific issues that the trial court has granted him permission

to appeal.” (internal citation & quotation omitted)). The record does not contain a ruling

nor permission from the trial court regarding the right to appeal a claim for ineffective

assistance of counsel. Because Gambrell did not raise nor obtain permission to appeal an

ineffective-assistance-of-counsel claim, we overrule Gambrell’s third issue in appellate

cause number 10-23-00181-CR.

Gambrell v. State Page 14
Conclusion

Having overruled all of Gambrell’s issues in appellate cause number 10-23-00176-

CR and 10-23-00181-CR, we affirm the judgment of the trial court.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray dissents.)
Affirmed
Opinion delivered and filed January 4, 2024
Do not publish
[CR25]

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