source: Caselaw Access Project

author: SHARON G. LEE, J.,

license: Public Domain

text:
    Charles H. WEBB v. Christian WERNER, et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Sept. 20, 2004 Session.
    Oct. 28, 2004.
    Permission to Appeal Denied by Supreme Court March 7, 2005.

      Douglas R. Beier, Morristown, for Appellant Charles H. Webb.
    Kenneth W. Ward, Knoxville, for Appel-lee Allstate Insurance Company.
   OPINION

SHARON G. LEE, J.,

delivered the opinion of the court, in which

HERSCHEL P. FRANKS, P.J. and CHARLES D. SUSANO, JR., J., joined.

This is an automobile accident case wherein the Plaintiff sued the driver of the other vehicle, Christian Werner, a Swiss citizen, and Allstate Insurance Company, Plaintiffs uninsured motorist insurance carrier. Allstate moved for. summary judgment, alleging that since .Plaintiff failed to obtain timely service of process against Werner, pursuant to Tenn. R. Civ. P. 3, the Plaintiffs action was barred by the one-year statute of limitations. The trial court granted Allstate summary judgment as regards Plaintiffs personal injury claim. We affirm the judgment of the trial court in this interlocutory appeal.

I. Factual Background

Plaintiff and the Defendant Christian Werner were injured in an automobile collision on March 22, 1999. On January 12, 2000, Plaintiff filed the instant lawsuit against Werner, who Plaintiff alleged rear-ended his vehicle; Avis Rent-a-Car, which allegedly rented to Werner the vehicle he was driving; and Allstate, Plaintiffs uninsured motorist insurance carrier. The same day Plaintiff filed his complaint, a summons was issued to Werner at the address listed on the police report, Schut-zenstr 25, 8953, Dietikon, Switzerland, 01141796015682. This summons was not sent to Switzerland but was retained by Plaintiffs counsel who, according to his affidavit filed February 3, 2003, attempted to personally serve Werner in Hamblen County, Tennessee. Werner was never served with process. A summons, which was issued to Allstate on January 12, 2000, was served on Allstate.

Over a year passed and on November 27, 2001, Plaintiff caused an alias summons to be issued to Werner at the same Switzerland address. Plaintiff also caused an alias summons to be issued to Werner through the Tennessee Secretary of State. Both of these alias summonses were returned to the court, marked “Unbekannt, Inconnu, Sconoseiuto.”

Allstate filed a motion for summary judgment on February 5, 2002, alleging that Plaintiff failed to obtain service of process on Werner as required by Tenn. R.Civ.P. 3, and that his claim must fail due to the applicable one-year statute of limitations for personal injuries found at Tenn. Code Ann. § 28-3-104.- The trial court granted Allstate’s motion with respect to Plaintiffs claim for personal injuries. Plaintiff moved for permission to take an interlocutory appeal of the court’s decision pursuant to Tenn.R. App.P. 9, which the trial court and this court granted.

II.Issue Presented for Review

The sole issue raised by Plaintiff in this appeal is whether the trial court erred in granting summary judgment to Allstate regarding Plaintiffs personal injury claim.

III.Standard of Review

A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn.R.Civ.P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard all countervailing evidence. Id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial.... In this regard, Rule 56.05 [now Rule 56.06] provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court’s grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the trial court’s grant of summary judgment is de novo on the record before this court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

IV.Analysis

In support of its argument that the trial court correctly dismissed Plaintiffs personal injury claim against Allstate because he allowed his claim against Werner to lapse, Allstate relies on the rule stated as follows in Winters v. Jones, 932 S.W.2d 464 (Tenn.App.1996):

A plaintiff who fails to establish legal liability against a defendant tortfeasor cannot impose liability upon her uninsured motorist carrier for the acts of that ■ same tortfeasor ... Thus, when through inattention or neglect a plaintiff allows her cause of action against the tortfeasor to lapse, ■ she is precluded from obtaining a recovery from the insurer as well.

Winters, 932 S.W.2d at 465-66 (citations omitted); see also Hooper v. State Farm Mut. Auto. Ins. Co., 682 S.W.2d 505, 507 (Tenn.App.1984). Therefore, if Plaintiff failed to satisfy the requirements of Tenn. R.Civ.P. 3 as regards Werner, then the trial court’s grant of summary judgment in Allstate’s favor must be affirmed.

Tennessee Rule of Civil Procedure 3 provides as follows:

All civil actions are commenced by filing a complaint with the clerk of the court. An action is commenced within the meaning of any statute of limitations upon such filing of a complaint, whether process be issued or not issued and whether process be returned served or unserved. If process remains unissued for 30 days or is not served within 30 days from issuance, regardless of the reason, the plaintiff cannot rely upon the original commencement to toll the running of a statute of limitations unless the plaintiff continues the action by obtaining issuance of new process within one year from issuance of the previous process or, if no process is issued, within one year of the filing of the complaint. (Emphasis added)

Our Supreme Court has recently stated the following in construing the requirements of Rule 3 in relation to the Tennessee saving statute:

Rule 3 anticipates that, when a plaintiff has failed to serve process on a defendant within thirty days of commencement, the plaintiff will continue the action by issuing process on the original complaint within one year of prior issuance, or if no prior issuance, within one year of filing the complaint.
We hold that Rule 3 permits a plaintiff who has not issued process within thirty days or has not served process within thirty days of issuance to rely upon the original commencement date to satisfy a statute of limitations only if the plaintiff continues the action within one year of first issuance, or if no issuance has occurred, within one year of filing the complaint, by issuing new process on the original complaint.

Frye v. Blue Ridge Neuroscience Center, P.C., 70 S.W.3d 710, 716-17 (Tenn.2002) (emphasis in original); see also Clark v. McClung, 2003 WL 22994304 at *5, C/A No. M2003-00552-COA-R3-CV (Tenn.App.M.S. Dec. 17, 2003) (“As Stempa [v. Walgreen Co, 70 S.W.3d 39 (Tenn.App.2001) ] and Tillman [v. Haffey, 63 S.W.3d 367 (Tenn.App.2001) ] confirm, Tenn. R.Civ.P. 3 imposes a strict one year time frame in which process must be issued or re-issued to toll the statute of limitations.”).

As noted above, Plaintiff issued process to Werner at the Switzerland address on January 12, 2000. This process was never sent to Switzerland nor was it ever served. Plaintiff did not subsequently attempt to re-issue process until November 27, 2001, roughly 22 months later. These facts are not in dispute; however, Plaintiff argues that the Tennessee uninsured motorist statute, Tenn.Code Ann. § 56-7-1206(d), operates to relieve him of the one-year requirement of TenmR.Civ.P. 3. Tenn. Code Ann. § 56-7-1206(d) provides as follows:

(d) In the event that service of process against the uninsured motorist, which was issued to the motorist’s last known address, is returned by the sheriff or other process server marked, “Not to be found in my county,” or words to that effect, or if service of process is being made upon the secretary of state for a nonresident uninsured motorist and the registered notice to the last known address is returned without service on the uninsured motorist, the service of process against the uninsured motorist carrier, pursuant to this section, shall be sufficient for the court to require the insurer to proceed as if it is the only defendant in such a case.

The record contains a copy of the summons issued to Werner on January 12, 2000 at the Switzerland address, with a handwritten notation at the bottom, stating “was unable to locate and find the Defendant in Hamblen County ... failed to serve this summons within 30 days after its issuance because [Defendant] not to be found in Hamblen County w/in 30 days,” and signed by Plaintiff’s counsel. There is no date indicating when the summons was returned or when the note at the bottom was written. There is also no indication in the record that this document was ever filed with the trial court.

The record also contains a handwritten affidavit of Plaintiffs counsel, dated January 31, 2003 and filed February 3, 2003, nearly one year after Allstate’s motion for summary judgment was filed, which states in relevant part as follows:

Original process was caused by virtue of a Summons upon the filing of this Complaint on January 12, 2000.
At that time, we had information that the Defendant, Christian Werner’s last known address was in Hamblen Co., TN, and that he was connected with one of the industrial plants or businesses here in Hamblen Co. and also that he was going to college here ...
I was the one who tried to serve the process. We were unable to locate the Defendant, Christian Werner in Ham-blen Co. at that last known address. The Summons got misplaced, but was found and returned and is true and accurate.

In the case of Winters v. Jones, 932 S.W.2d 464 (Tenn.App.1996), the plaintiff presented an argument similar to the Plaintiffs argument in the case at bar. The Winters court found a lack of due diligence by the plaintiff, stating as follows:

[W]e believe the statute requires a more diligent effort on the plaintiffs part to preserve her rights, and the rights of her insurer, against the tortfeasor ... [T]he requirement of service upon the tortfeasor is not imposed on the plaintiff as an empty formality, but as a practical means of maintaining the insurer’s right to recover from the responsible party, once it has paid the policyholder ... In the present case, the plaintiff cannot proceed directly against the insurance company in accordance with the provisions of Tenn.Code Ann. § 56 — 7—1206(d) because even though she managed to elicit a “Not to be found in my county” response on the return of process, she did not serve, or attempt to serve, the responsible party at his last known address.

Winters, 932 S.W.2d at 465-66, Tennessee courts have consistently imposed a requirement of due diligence in attempting to locate and serve process on a defendant in cases such as the present one. Winters, supra; Lam v. Smith, 891 S.W.2d 207, 212 (Tenn.1994); Clark v. McClung, supra, 2003 WL 22994304 (Tenn.App.2003); Grubbs v. Pilkington, 2001 WL 1660826, 2001 Tenn.App. LEXIS 943, C/A No. M2000-02965-COA-R3-CV (Tenn.App. W.S. filed Dec. 28, 2001); Ballard v. Ardenhani, 901 S.W.2d 369, 374 (Tenn.App.1995); Carr v. Borchers, 815 S.W.2d 528, 532 (Tenn.App.1991).

The Winters and Ballard cases cited above demonstrate that while Tenn. Code Ann. § 56-7-1206(d) allows a plaintiff to proceed directly against an uninsured motorist carrier under certain circumstances even if the uninsured motorist is never successfully served with process, see Brewer v. Richardson, 893 S.W.2d 935 (Tenn.1995), a plaintiff is still required to make a duly diligent effort to serve process on the uninsured motorist, and when this diligent effort is lacking and an unreasonable amount of time has passed, a plaintiff cannot use the uninsured motorist statute to avoid the requirements of Tenn. R.Civ.P. B. We are aware of the result reached by this court in the cases of Lady v. Kregger, 747 S.W.2d 342 (Tenn.App.1987) and Little v. State Farm Mut. Ins. Co., 784 S.W.2d 928 (Tenn.App.1989); however, in neither case did the court find a lack of due diligence by the plaintiff.

In the present case, Allstate filed a Tenn.R.Civ.P. 56.03 statement of material facts along with its motion for summary judgment. One of the material facts alleged by Allstate is that “[bjetween January 12, 2000, and November 27, 2001 [when alias summonses were issued], Plaintiff made no other attempts to serve process on the defendant, Christian Wer-ner.” Plaintiffs filed response admits this fact is undisputed. Although Plaintiff caused a summons to be issued on January 12, 2000, there is no showing that he ever attempted to deliver it to Werner’s last known address in Switzerland.

Under the above-cited authorities and the plain language of Tenn.R.Civ.P. 3, we hold that the trial court did not err in ruling Plaintiff failed to show the required due diligence in attempting to serve process on Werner. There is no showing that Plaintiff made any effort in this regard for some 22 months after the complaint was filed.

The judgment of the trial court is affirmed and the case remanded for such other action as may be necessary, consistent with this opinion. Costs on appeal are assessed to the Appellant, Charles H. Webb, for which execution may issue, if necessary.

      . The trial court subsequently granted Avis Rent-a-Car summary judgment, and Plaintiff has not appealed this ruling.

      . Nowhere in the record or the parties’ briefs is there a translation or other explanation as to what these words mean, but the translation is not relevant to the dispositive issues of this appeal.

      . Tenn.Code Ann. § 28-l-105(a).


author: KELLER, P.J.,

text:
    Carlos KELLY, Appellant v. The STATE of Texas.
    No. PD-0023-04.
    Court of Criminal Appeals of Texas.
    April 13, 2005.

      Randy Mack, Corpus Christi, for Appellant.
    Betty Marshall, Asst. Prosecuting Attorney, Austin, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

KELLER, P.J.,

delivered the opinion of

the Court in which

MEYERS, PRICE, HOLCOMB, and COCHRAN, JJ„ joined.

We granted review to determine whether the court of appeals erred in its speedy trial analysis. We conclude that the court of appeals erred in several respects.

I. BACKGROUND

A. Facts

Appellant was arrested on May 6, 2001. He was charged with possession of more than four grams of a controlled substance (the present offense) and was released on bond. The State also filed a motion to revoke probation in a prior case — alleging the present offense as grounds for revocation. Appellant was indicted on July 20, 2001, and the State filed an announcement of ready on that date. Appellant appeared for arraignment on August 21, 2001.

In a motion for physical inspection of the evidence, filed on September 21, 2001, appellant asserted that he had a good faith belief that the amount of substance seized was less than the State claimed. Appellant subsequently appeared for a setting on September 27, 2001, but his attorney was absent. Appellant and his attorney both appeared at a setting on October 18, 2001. On October 22, 2001, the State submitted the seized substance for analysis by the Texas Department of Public Safety (DPS). While analysis was pending, another setting occurred on November 13, 2001, but defense counsel did not appear at this setting. On December 6, 2001, the DPS laboratory provided a report that concluded the amount of controlled substance was 0.92 grams.

Another setting occurred on December 17, 2001 and again defense counsel did not appear. He did appear for the next setting, on February 7, 2002. The motion to revoke in the prior case was heard on February 27, 2002. Appellant’s probation was revoked, and he was sentenced to five years imprisonment.

On June 12, 2002, the State sent a letter to the district clerk announcing that the case was “now ready to be set on the criminal docket” and requesting a trial setting on July 9, 2002. Appellant appeared for the setting on July 9, 2002, but was late for court. The trial court reset the case for July 29, 2002. On July 10, 2002, the State filed an unopposed motion for continuance on the ground that one of its witnesses was required to undergo training to renew a certification and would be unavailable on July 29.

On August 2, 2002, appellant filed a motion to dismiss on speedy trial grounds. The trial court reset the case to September 17, 2002 and later to October 7, 2002. Appellant’s motion to dismiss was heard on October 7, 2002, which was also the date of trial. During the hearing, appellant testified that he had been employed before his arrest, but could not find work because he was required to repeatedly appear at court. He also explained that he was required to seek transportation to and from court from other family members, who were also inconvenienced. Appellant also claimed that he was “real worried” because of the pendency of the case, which he understood to be a second-degree felony, as charged by the State. He further testified that his memory of events surrounding his search and arrest was not as clear as it was immediately after the events. On cross-examination, appellant acknowledged that his attorney had told him that the laboratory tests confirmed the actual amount of controlled substance at less than a gram. He also admitted that his probation reporting requirements in the prior case required him to miss work and to travel farther than his court appearances in the present case demanded.

The prosecutor testified that he could have been ready for trial before receiving the laboratory analysis in December of 2001 because he could have ordered the lab analysis to be expedited. He did not do so because the case was not set for trial and it was expensive for the lab to take things out of order. Other than the comments about the lab and the brief unavailability of a prosecution witness (discussed above), the prosecutor provided no explanation for the seventeen-month delay in this case.

The trial court denied the motion to dismiss without issuing findings of fact. That same day, appellant pleaded no contest to possession of less than one gram of a controlled substance, a lesser offense than that alleged in the indictment. Pursuant to a plea agreement, the trial court deferred adjudication, assessed a fine of $1500, and placed appellant on community supervision for five years, to begin upon release from imprisonment in the companion case.

B. Court of Appeals Opinion

On original submission, the court of appeals addressed appellant’s speedy trial claim under the four-factor balancing test set out in Barker v. Wingo, which requires balancing the following factors: (1) length of delay, (2) reason for delay, (3) assertion of the right, and (4) prejudice. The court initially found that the seventeen-month delay in this case was sufficiently long to trigger examination of the other Barker factors, and in fact, was more than twice as long as the minimum amount of time held necessary to do so. The court further found that the State did not have good reasons for the delay and concluded that the cause of the delay was the State’s negligence. In reaching this conclusion, the court observed the following: (1) the State could have, but did not, expedite laboratory testing of the seized controlled substance, (2) cases in the district court were set in accordance with the request of the prosecutor, and the prosecutor was slow in requesting a trial setting, (3) assuming arguendo that the certification training for one of the State’s witnesses was a good excuse, the State did not explain why the trial could not have been set in the months preceding the training deadline or shortly after training was completed, and (4) the State provided no explanation for the delay of the case for eight months after the companion probation revocation case was resolved in February of 2002.

With regard to the “assertion of the right” factor, the court of appeals found that appellant’s failure to oppose the State’s motion for continuance of the July 29, 2002, trial setting was the equivalent of the single “not ready” announcement attributable to the defendant in Zamorano v. State. Observing that appellant asserted his right to a speedy trial four days after the continued setting, the court concluded that the third Barker factor weighed against the State.

Finally, the court of appeals reviewed the prejudice factor de novo because “the State did not refute the facts asserted by Kelly with regard to the prejudice the delay caused him.” The court conceded that prejudice was mitigated by the fact that appellant was on bail and that appellant failed to prove any specific prejudice to the preparation and presentation of his defense. Nevertheless, the court of appeals held that the prejudice factor weighed in appellant’s favor because appellant testified to an inability to find a job due to the time commitment imposed by court appearances and because appellant testified that the severity of the charged, second-degree offense worried him.

After the court of appeals issued its original opinion, the State filed a motion to supplement the record and a motion for rehearing. The motion to supplement requested that the record be supplemented with resetting docket notices signed by appellant and/or his attorney during the pendency of this case. The notices indicated that appellant’s attorney was not present in court on three dates. In its motion for rehearing, the State urged three circumstances justifying the delay in this case: “(1) trial counsel’s absence from three pre-trial court appearances; (2) ongoing plea negotiations that were hampered by trial counsel’s absence; and (3) the prosecutor’s trial of one jail case after February 27, 2002.”

In a written opinion, the court of appeals granted the motion to supplement but denied rehearing. The court rejected the argument that defense counsel may have hampered plea negotiations because the prosecutor “did not testify that plea negotiations were ongoing or that negotiations were hampered by defense counsel’s absence.” The court further questioned whether “counsel’s absence from court for pre-trial appearances on days that the accused personally appeared is a reason for delay that weighs against the accused.” In any event, the court held that at least two of the three absences were irrelevant because they occurred before laboratory testing was completed, and “[ujntil the test results were back, any plea negotiations would have centered on the ‘overcharged’ second-degree felony, not the state jail felony to which Kelly ultimately pleaded.”

With regard to the State’s argument that some of the delay was due to the State giving priority to a jail case, the court observed that the prosecutor never testified that the delay of appellant’s case was due to a crowded docket or that the jail case delayed the trial of appellant’s case. The court pointed out that the prosecutor never testified to how long the jail case took to try.

II. ANALYSIS

As the court of appeals stated, Barker v. Wingo sets out the appropriate test for evaluating speedy trial claims. In conducting a speedy trial analysis under the Barker test, we review legal issues de novo but give deference to a trial court’s resolution of factual issues. We conclude that the court of appeals’s opinion is mistaken in three respects, two of which relate to the resolution of factual issues and one of which relates to a purely legal question. We address each of these in turn.

A. Factual Issues — Deference to the Trial Court

1. The Ability to Draw Inferences from the Facts (Reasons for Delay)

In this case, what it means to give deference to the resolution of factual issues warrants some discussion. We have held that the standard for evaluating factual' issues within the context of a speedy trial claim is the same as the standard for reviewing historical fact issues in the context of a motion to suppress. Under this standard, deference must be given not only to a trial court’s resolution of disputed facts, but also to the drawing of reasonable inferences from the facts. In Manzi v. State, we discussed the United States Supreme Court’s holding in Anderson v. City of Bessemer City that deference must be given to trial court findings even when those findings do not turn upon the assessment of credibility and demeanor. Anderson referred not only to a trial court’s evaluation of the reliability of documentary evidence but also to the trial court’s ability to draw inferences from undisputed facts: “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.” The reasons for giving deference when evaluating the credibility of affidavits — that trial judges have acquired expertise as factfinders and that re-litigating the facts entails substantial costs with only a negligible contribution to accuracy— apply equally to the drawing of inferences. Moreover, the trial judge’s personal knowledge of the parties and the sequence of events do in fact place him in a better position to draw inferences than an appellate court without such familiarity.

With regard to the “reasons for delay” factor, the court of appeals failed to properly defer to the trial court’s ability to draw inferences from the facts. Contrary to the court of appeals’s conclusion, the trial court could have inferred that defense counsel’s failure to appear at three settings caused some of the delay in the case. And as the court of appeals pointed out, one of the absences occurred after the substance had been analyzed — indicating that defense counsel’s own readiness was not, in fact, solely dependent on the progress of the laboratory testing.

Moreover, while the prosecutor did not testify to the existence of ongoing plea negotiations, the trial court could have inferred it from the circumstances. Plea negotiations are an extremely common occurrence, as the vast majority of criminal cases are resolved by negotiated settlement. The trial court had reason to believe that plea negotiations began as early as September 21, 2001, when appellant first claimed that the amount of controlled substance was substantially less than what was charged, and there was even greater reason to believe that negotiations were ongoing after the State’s own testing revealed that appellant’s claim was correct. Indeed, one rational explanation for the eight-month delay after the resolution of companion revocation case could be that the parties were still wrangling over the amount and type of punishment to be imposed. And in fact, the present case was resolved by plea bargain.

Moreover, the court of appeals errs to discount plea negotiations before the receipt of laboratory test results on the ground that such negotiations could not involve the lesser offense. Appellant placed the State on notice that he anticipated test results showing a substantially smaller amount of controlled substance, and the parties could well have taken into account in plea negotiations the possibility that laboratory analysis would confirm appellant’s claim.

2. The ability to disbelieve witnesses (prejudice)

Although the trial court deserves deference even when credibility is not in issue, deference is especially appropriate when credibility is involved. Accordingly, we held in State v. Ross that the factfinder is empowered, on the basis of credibility and demeanor evaluations, to completely disregard a witness’s testimony, even if that testimony is. uncontrovert-ed.

In Zamorano v. State we suggested that evidence of anxiety, offered solely through the defendant’s own testimony, was “some evidence” to support a finding of prejudice because “the State did not challenge the [defendant’s] testimony.” But that suggestion was unnecessary because we concluded that “the sword of Damocles weighs no less” even if the anxiety suffered was simply the usual fear of conviction and punishment. Moreover, the present situation does not appear to be the type envisioned in Whitehead v. State as being amenable to a less deferential factual review. While evidence of anxiety and financial disruption attending the delay in trial may in some ways be similar to evidence of the defendant’s financial ability in the context of appointment of counsel, the consequence of erroneously ruling in the defendant’s favor in the latter type of case— dismissing the prosecution — is not “relatively innocuous.”

At any rate, Zamorano did not hold, or even suggest, that the presence of uncon-troverted testimony gave an appellate court the authority to conduct a de novo review of underlying historical facts. Even under Whitehead’s less deferential standard, a great deal of deference is still given to the trial court’s resolution of such matters: the trial court is permitted to disbelieve evidence so long as there is a reasonable articulable basis for doing so.

In the present case, the record provides several reasonable articulable bases for disbelieving appellant’s Claims of prejudice. Appellant acknowledged on cross-examination that the. trial appearances required by the prosecution of the present case were less onerous than the reporting requirements for his probation. Moreover, appellant knew by December of 2002 that testing had revealed the amount of the substance to be much smaller than that charged. The trial court could have reasonably surmised that appellant knew, from discussion with his attorney, that this amount was in the state-jail-felony range rather than in the second-degree range.

Once appellant’s probation was revoked on the prior offense and he was sentenced to five years in prison in February of 2002, having a job was no longer an issue. And appellant’s then-existing incarceration attenuated any “Sword of Damocles” concern about the risk of future incarceration. That risk had been realized. Although this prosecution had the potential to add more time to that imprisonment, it was no longer true that a dramatic life-change was hanging over appellant’s head, and in fact, the maximum punishment he could receive was significantly less than the sentence he was already serving. For these reasons, the trial court could have concluded that appellant’s claims of anxiety and loss of work, even if believed, did not weigh in his favor because he was already incarcerated for another offense.

B. Legal Issue: Assertion of the Right

The court of appeals found appellant’s failure to oppose the State’s motion for continuance on one occasion to be the equivalent of the single “not ready” announcement in Zamorano. But in so holding, the court of appeals overlooked the context in which the Zamorano “not ready” announcement took place. In Zamorano, the defendant was charged on October 20, 1995, and made bail. On a setting occurring on July 19, 1996, the defendant announced, “not ready” because he needed three days to draft and file written pretrial motions in limine, to suppress evidence, and to request a list of the State’s witnesses. On June 3, 1998, nearly two years after this three-day continuance, the defendant filed a motion to dismiss on speedy trial grounds. This motion was heard and denied on August 21, 1998. A motion to reconsider was filed on October 19, 1998, but trial did not occur until August 6, 1999, more than a year after the defendant filed his original motion. In Zamorano, we acknowledged that the defendant’s original motion to dismiss was tardy, but held that the second attempt to seek a speedy trial evidenced persistence, causing the assertion of the right factor to weigh in the defendant’s favor.

In the present case, the tardiness of the appellant’s motion to dismiss is a far more significant factor than any alleged “not ready” equivalent that might be read into the defendant’s acquiescence to the State’s July 29th motion for continuance. Appellant waited over a year to file his motion to dismiss on speedy trial grounds, but the case progressed to trial approximately two months after the motion was filed. By contrast, Zamorano’s trial took place over a year after the filing of his motion. So while Zamorano’s motion was tardy, it was well in advance of the date on which he was actually tried. Here, however, appellant received his trial only two months after he first indicated his interest in a speedy trial. And Zamorano’s request for reconsideration, which we found to be evidence of persistence in asserting the right, was filed four months after the original motion was filed (and nearly two months after the court had denied the original motion). Had Zamorano’s case progressed as quickly as appellant’s after the initial motion was filed, he would have had no occasion to file a motion for reconsideration because the case would have been resolved by then. Under those circumstances, we cannot agree with the court of appeals’s legal conclusion that the assertion of the right factor weighs in appellant’s favor. Appellant’s assertion was tardy, it was made only once, and trial occurred within a relatively short time thereafter.

C. Balancing the factors

Because the court of appeals erred in several respects in its speedy trial analysis and our resolution of the State’s ground for review has resulted in our reanalyzing most of the Barker factors, we exercise our discretion to resolve the speedy trial issue under the principles set forth in this opinion. Although the delay was somewhat lengthy in this case, the trial court could have reasonably concluded that some of that delay — especially at the beginning of the case — was attributable to appellant. Because of counsel’s failure to appear at three settings, we cannot conclude that the reasons for delay weigh heavily, if at all, against the State before appellant’s probation revocation in February. And the amount of prejudice suffered before the February revocation was relatively limited. The trial court could have rationally concluded that appellant’s probation on the prior offense interfered more with his ability to find a job than the burdens associated with the new prosecution. And the trial court could have found that anxiety about the offense was significantly attenuated in December, when the drug test results showed that the substance weighed significantly less than the State had originally claimed.

The delay after appellant’s probation revocation is less excusable, and we find that the latter delay weighs moderately against the State. But the trial court could have concluded that the prejudice suffered after that point was virtually nonexistent, because appellant was already incarcerated on a different offense. Moreover, appellant’s failure to assert his right until August 2002 weighs heavily against him. Not only was this assertion tardy, occurring after a year had passed, but the assertion was made when appellant was no longer suffering the same degree of prejudice suffered by one who is not incarcerated. Further, the case was tried approximately two months after the speedy trial right was first asserted. And had there been witnesses appellant wished to call, they could have appeared at the hearing on the motion to revoke probation. After balancing the factors, we conclude that they weigh against finding a speedy trial violation.

The judgment of the court of appeals is reversed and the case is remanded to that court to address appellant’s remaining points of error.

WOMACK, JOHNSON, KEASLER, and HERVEY, JJ., concurred in the result.

        .Kelly v. State, 122 S.W.3d 227, 236 (Tex.App.-Corpus Christi 2003)(citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)).

      . Id. at 238.

      . Id. at 239.

      . Id.

      . Id. at 240 (citing Zamorano v. State, 84 S.W.3d 643, 651 (Tex.Crim.App.2002)).

      . Id. (citing Moreno v. State, 987 S.W.2d 195, 201 (Tex.App.-Corpus Christi 1999, pet. ref'd)).

      . Id.

      . Id.

      . Kelly v. State, 122 S.W.3d 227, 242 (Tex.App.-Corpus Christi 2003).

      . Id.

      . Id.

      . Id.

      . Zamorano v. State, 84 S.W.3d at 648 (Tex.Crim.App.2002); Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App.1997).

      . State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App.1999)(citing Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997)).

      . 88 S.W.3d 240 (Tex.Crim.App.2002)

      . 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

      . 88 S.W.3d at 243 (quoting from Anderson, 470 U.S. at 573-574, 105 S.Ct. 1504).

      . Manzi, 88 S.W.3d at 243 (quoting Anderson, 470 U.S. at 574, 105 S.Ct. 1504)(emphasis added).

      . Id. at 244-255.

        .See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)(discussing the trial judge’s view of "the facts of a particular case in light of the distinctive features and events of the community” as providing a context for drawing "inferences that deserve deference”).

      . Guzman, 955 S.W.2d at 89.

      . 32 S.W.3d 853 (Tex.Crim.App.2000).

      . Id. at 855.

      .84 S.W.3d at 654.

      . Id.

      . 130 S.W.3d 866 (Tex.Crim.App.2004).

      . Id. at 876.

        .Id.

      . 84 S.W.3d at 647.

      . Id. at 650.

      . Id. at 647.

      . Id.

      . Id.

      . Id. at 651-652.


text:
    Trever ROBERTSON, Appellant, v. The STATE of Texas.
    No. PD-0865-04.
    Court of Criminal Appeals of Texas.
    May 18, 2005.

      Stan Sehwieger, Waco, TX, for Appellant.
    Betty Marshall, Asst. State Atty., Matthew Paul, State’s Atty., Austin, for State.
   KELLER, P.J.,

delivered the opinion of

the Court, joined by

PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ. MEYERS, J. did not participate.

The question in this case is whether a switchblade knife, that was viewed by the fact-finder and introduced into evidence, was a deadly weapon by design. We conclude that the evidence was sufficient to show that it was. Consequently, we reverse the judgment of the court of appeals.

I. BACKGROUND

A. Facts

After stopping appellant for traffic violations, an officer spotted drug paraphernalia in his car and ordered appellant to empty his pockets. His pockets contained $460 in cash and a switchblade knife with a white residue on its tip. A subsequent strip-search of appellant at the jail revealed marijuana, cocaine, and methamphetamine.

Appellant was charged with possession of methamphetamine with intent to deliver. At trial, the State introduced testimony regarding the circumstances surrounding the confiscation of appellant’s switchblade knife. The officer who discovered the knife testified that it initially looked like a folding knife, but he had difficulty pulling it open until he noticed a button on the side. When he pressed the button, the knife flew open, at which point the officer realized the knife was an illegal spring-loaded, switchblade knife. No further description of the knife was given, and the police officer did not testify that it was a deadly weapon, but the knife was admitted into evidence.

Appellant was convicted by the jury and sentenced by the court to imprisonment for fifteen years, and the trial court made and entered a deadly weapon finding.

B. Court of Appeals Opinion

On appeal, appellant alleged, among other things, that the evidence was insufficient to support the deadly weapon finding. The court of appeals agreed, ordering that the deadly weapon finding be deleted from the judgment. Finding no evidence that the knife “was manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury,” the court of appeals concluded that the knife was not a deadly weapon by design.

Chief Justice Gray dissented. He stated, “If anyone has any question that the knife at issue is a deadly weapon, all he or she needs to do is examine it.” The Chief Justice explained that the knife in question had a three-inch-long blade that was “symmetrical and sharpened down both sides, coming to a point in the center-line of the holding position of the handle.” He further described the knife as a “switchblade,” with a spring-loaded blade that “swings into an extended and locked position with the push of a button.” The handle of the knife is also “symmetrical, with a built-in swell at the hilt to act as a guard, and the entire handle is coated in a rubberized, slip resistant material.” - .

II. ANALYSIS

What constitutes a “deadly weapon,” for the purpose of determining whether an affirmative finding of a deadly weapon should be made, is determined by § 1.07 of the Texas Penal Code. One of § 1.07’s two definitions of “deadly weapon” is at issue here: the definition involving weapons that are deadly by “design.” A weapon is considered to be a “deadly weapon” by “design” if it is “a firearm or anything manifestly designed; made, or adapted for the purpose of inflicting death or serious bodily injury.” Under this definition, an object’s physical characteristics determine whether a weapon is deadly by design. Moreover, an object can be a deadly weapon by “design” only if it has no “obvious purpose apart from causing death or serious bodily injury.” For this reason, describing an object generically as a “knife” does not by itself establish the object as a deadly weapon by “design” because many types of knives have an obvious other purpose (e.g. butcher knives, kitchen knives, utility knives, straight razors, and eating utensils). However, a particular variety of knife may be a. deadly weapon by design. Bayonets, scimitars, and various kinds of swords are examples of knives that are deadly by design, because they are designed to cause death.

The Texas Penal Code defines a switchblade knife as “any knife that has a blade that folds, closes, or retracts into the handle or sheath, and that: (A) opens automatically by pressure applied to a button or other device located on the handle; or (B) opens or releases a blade from the handle or sheath by the force of gravity or by the application of centrifugal force.” The evidence unquestionably shows that appellant’s knife was a switchblade knife under the subsection (A) definition. The question is whether a switchblade knife can qualify as a deadly weapon by “design,” and if so, under what circumstances.

Statutes from several other states have expressly defined or referred to switchblade knives as deadly weapons, and at least one state supreme court has held a switchblade knife to be a weapon that is “inherently dangerous as a matter of law” even without an explicit statutory directive. Alabama’s “deadly weapon” definition is virtually identical to the deadly weapon by “design” subsection of the Texas definition, except that the Alabama statute appends to the end of its definition an illustrative list, which, significantly, includes a “switchblade knife” as a deadly weapon by design. Missouri’s statute draws a distinction between “deadly weapons” and “dangerous instruments.” An examination of the provisions reveals a rough correspondence, respectively, with the Texas scheme of classifying deadly weapons by design and usage. Importantly, a “switchblade knife” is specified as a “deadly weapon” under Missouri’s counterpart to the deadly weapon by “design” definition.

We need not say, as these jurisdictions do, that a switchblade knife is always and necessarily a deadly weapon by design. It is enough in this case to recognize that a switchblade knife can be a deadly weapon by design, and the switchblade knife before us is indeed such a weapon. The combination of this knife’s physical characteristics reveals its inherently dangerous and deadly nature. The switchblade nature of the knife enables the blade to be deployed quickly, swinging forward with the push of a button. The three-inch blade is large enough to inflict serious wounds. The handgrip facilitates stabbing by keeping the knife securely in the wielder’s hand. Likewise, stabbing is facilitated by the fact .that the knife locks into place. Further, the knife’s double-edged blade appears designed for stabbing rather than slicing. Because the switchblade knife was admitted into evidence, the fact-finder was in a position to observe all of these characteristics. Not only was this knife inherently dangerous, but it had no apparent purpose other than to serve as a deadly weapon. It is illegal in Texas to possess a switchblade knife, except under specified circumstances not applicable here. While we need not reach the question of whether any other weapons that are prohibited under § 46.05 are deadly weapons under § 1.07(a)(17)(A), the fact that a switchblade knife is a prohibited weapon indicates, at the least, that under Texas law, switchblade knives have no obvious non-deadly purpose.

Perhaps the court of appeals believed that the evidence was insufficient because there was very little testimony at trial describing the switchblade knife. But, as we have discussed, an object’s physical characteristics may determine whether the object is deadly by design. One appropriate method of showing the physical characteristics of a weapon is to introduce the weapon itself into evidence. The trial court, as the fact-finder, had the opportunity to examine the weapon and ascertain for itself whether the weapon had physical characteristics that revealed its deadly nature. The court of appeals should have considered not just the testimony concerning the knife, but the knife itself, in determining whether the evidence adduced at trial was constitutionally sufficient to support a rational finding that the knife was “manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” We have viewed the- knife, and we find that the evidence is sufficient to support such a finding.

The judgment of the court of appeals is reversed, and the trial court’s judgment is affirmed in all respects.

        .Robertson v. State, 137 S.W.3d 807, 813 (Tex.App.—Waco2004). The trial court’s judgment was affirmed in all other respects. Id.

      . Id.

      . Id. at 813 (Gray, C.J. dissenting).

      . Id. at 813-814.

      . Id. at 814.

      . Id.

      . Tex.Code Crim. Proc. 42.12, § 3g(a)(2).

      . See Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App.1991)(shorthand reference to the two definitions as "design” and "usage”). The court of appeals did not explicitly address whether the switchblade knife was a deadly weapon by "usage” under Tex Pen.Code § 1.07(a)(17)(B), and the State advances no complaint in that regard in its petition for discretionary review.

      . Tex. Pen.Code § 1.07(a)(17)(A).

      . McCain v. State, 22 S.W.3d 497, 502 (Tex.Crim.App.2000).

      . Id.

      . Id. at 502-503 (discussing Thomas, 821 S.W.2d at 620).

      . Thomas, 821 S.W.2d at 620.

      . Id.

      . Tex. Pen.Code § 46.01(11).

      . Buchannon v. State, 554 So.2d 477, 493 n. 11 (Ala.Crim.App.), cert. denied, 554 So.2d 494 (Ala.1989)(citing Ala.Code, § 13A-1-2(11)); State v. Manley, 195 Conn. 567, 576, 489 A.2d 1024, 1029 (1985)(citing Conn. Gen. Stat. § 53a-3 (6)); Johnson v. State, 711 A.2d 18, 27 (Del.1998)(citing Del. C. § 222(5); United States v. Shepard, 515 F.2d 1324, 1327 (D.C.Cir.1975)(citing D.C.Code § 22-3202 [now § 22-4502]); State v. Darynani, 774 So.2d 855, 857 (Fla.App.2000)(citing Fla. Stat. § 790.225); Ridley v. State, 232 Ga. 646, 646 n. 1, 208 S.E.2d 466, 466 n. 1 (1974)(citing Ga.Code Ann. § 77-361); In re T.G., 285 Ill.App.3d 838, 844-845, 221 Ill.Dec. 126, 674 N.E.2d 919, 925 (1996), appeal denied, 172 Ill.2d 552, 223 Ill.Dec. 195, 679 N.E.2d 380 (1997)(citing 720 ILCS 5/33A-1); In re Colby H, 362 Md. 702, 709-710, 766 A.2d 639, 643 (2001)(citing Md. Ann.Code, Art. 27, § 36); McNeely v. State, 277 So.2d 435, 437 (Miss.1973); State v. Williams, 126 S.W.3d 377, 384 (Mo.2004)(citing R.S. Mo. § 556.061(10)); N.H. R.S.A. 159:3; N.M. Stat. Ann. § 30-1-12; Davis v. Henderson, 468 F.Supp. 628, 632 (S.D.N.Y.1979)(citing N.Y. Penal Law § 10.00(12)).

      . State v. Hartford, 130 Ariz. 422, 427, 636 P.2d 1204, 1209 (1981), cert. denied, 456 U.S. 933, 102 S.Ct. 1987, 72 L.Ed.2d 452 (1982).

      . Definition of "deadly weapon" under the Alabama Code:
      A firearm or anything manifestly designed, made, or adapted for the purposes of inflicting death or serious physical injury. The term includes, but is not limited to, a pistol, rifle, or shotgun; or a switch-blade knife, gravity knife, stiletto, sword, or dagger; or any billy, black-jack, bludgeon, or metal knuckles.
      Ala.Code 13A-l-2(7). See also Buchannon, 554 So.2d at 493 n. 11 (citing former § 13A-1-2(11)).

      . Williams, 126 S.W.3d at 384.

      . Id. Missouri defines "deadly weapon” as “any firearm, loaded or unloaded, or any weapon from which a shot, readily capable of producing death or serious physical injury may be discharged, or a switchblade knife, dagger, billy, blackjack or metal knuckles.” Id. (citing R.S. Mo. § 556.061(10)). "Dangerous instrument” is defined as "any instrument, article or substance, which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.” Id. (citing R.S. Mo. § 556.061(9)).

      . Id. (citing R.S. Mo. § 556.061(10)).

      . Tex. Pen.Code § 46.05(a)(5), (d)(1).


author: MEYERS, J.,

text:
    Jorge Alfredo SALINAS, Appellant v. The STATE of Texas.
    No. AP-74524.
    Court of Criminal Appeals of Texas.
    May 18, 2005.

      Rogelio Garza, Edinburg and Alfredo Morales, Jr., McAllen, for Appellant.
    Theodore C. Hake, Asst. District Atty., Edinburg, Matthew Paul, State’s Atty., Austin, for State.
   MEYERS, J.,

delivered the opinion of

the Court in which

KELLER, P.J., and PRICE, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ„ joined.

Appellant was convicted in August 2002 of capital murder. Tex. Penal Code Ann. § 19.03(a). Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, sections 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g). Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises six points of error. We reform appellant’s death sentence to a sentence of life imprisonment, and otherwise affirm.

In point of error two, appellant claims the evidence is legally insufficient to establish a specific intent to kill. In determining the sufficiency of the evidence, the evidence is viewed in the light most favorable to the verdict to decide whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Appellant, his brother Lorenzo, and Oscar Villa Sevilla were at appellant’s house in Mission on the night of Saturday, July 28, 2001, smoking marijuana. Sevilla stated that he wanted to get a gun and steal a car. Appellant said, “Let’s see if you have the balls; let’s go.” Appellant retrieved a shotgun that he had previously stolen and gave it to Sevilla. Appellant and Sevilla walked to a nearby intersection. Sevilla jumped out and pointed the shotgun at the first car to stop at the four-way stop. Gerónimo Morales was driving the car, and his 21-month-old child, Leslie Ann Morales, was in her car seat in the back. Sevilla pounded on the window, and Morales opened the door. Sevilla got into the driver’s seat and forced Morales over to the passenger’s seat. Sevilla handed appellant the gun, and appellant pointed it at Morales. Morales cried and pleaded with them not to hurt the baby. Appellant got into the back seat of the car while still pointing the gun at Morales. Sevilla grabbed Morales by the hair and began hitting him. Sevilla asked Morales for his money, but Morales stated that he did not have any. This made Sevilla angry, and he beat Morales some more. Sevilla stopped the car, retrieved the gun from appellant, and dragged Morales into some orchards and shot him. He stole Morales’ wallet, a gold ring, and a silver necklace with a skull on it.

Sevilla returned to the car, and appellant suggested that they return to his house and pick up his brother Lorenzo. When Lorenzo got into the car, he asked them what they were going to do with the baby. Lorenzo suggested that they leave her at a store or someplace where someone would find her, but Sevilla said they were going to dump her where no one would find her. They drove to an area south of town about a half a mile from the Rio Grande River, and close to La Lomita Mission. Appellant and Lorenzo took the baby out of the car, still in her car seat, and placed her in some tall grass.

The three then drove Morales’ car to Maria Alma Rosa Acevedo Pineda’s house in Reynosa, Mexico, arriving between 10:30 and 11:00 p.m. on July 28, 2001. Pineda’s husband was a first cousin to appellant and Lorenzo. Appellant initially told Pineda that the car belonged to Sevil-la. Lorenzo gave Pineda’s son a silver necklace with a skull on it, which was later identified as Morales’ necklace. Later that night, appellant told Pineda that he had something he wanted to tell her, but he was afraid she would tell someone else. He then told her that they had “broken some guy,” but Pineda did not believe him. Pineda stated that the phrase “broken some guy” means “to kill, to break, to shoot some person.”

The three cohorts tried to sell Morales’ car in Reynosa, but were unsuccessful. On Sunday, July 29, Reynosa police attempted to stop them while they were driving Morales’ car. A chase ensued, and they abandoned the vehicle. Reynosa police seized the car and turned it over to authorities in the United States. The three cohorts returned to the United States on Monday after selling the shotgun. Appellant told his girlfriend about what they had done and took her to see Morales’ body where they had left it.

Leslie Ann’s body was found by border patrol officers around 7 p.m. on July 29, 2001. The officers were patrolling south of La Lomita Mission near the river, looking for illegal aliens who might be hiding in the grass. The patrol officer who testified stated that the child was in an area where she was not likely to be found. Other testimony placed her approximately fifteen feet from the road in grass that was two to three feet high. The medical examiner testified that Leslie Ann died from dehydration, exposure to the elements, and heatstroke.

Morales’ body was found on August 1, 2001. He died from a gunshot wound at close range to the right side of the head.

Appellant argues that the evidence does not support a finding that he had a specific intent to kill anyone or to assist, promote, or encourage Sevilla in committing the murders. He contends, “The only thing he intended to do, and agreed with, was to steal a car at gun point.” He claims Sevil-la alone formulated, during the course of the robbery, the specific intent to kill -the victims. Appellant says the murders, at least on appellant’s part, were unintended, unplanned and random, spurred only by his co-hort’s independent impulse. He claims he could not have reasonably foreseen or anticipated Sevilla’s actions when they stole the car.

The indictment charged appellant with capital murder in three separate counts. The first count charged him with the murder of Morales while in the course of committing or attempting to commit robbery of him. The charge required the jury to find that (1) appellant intentionally caused Morales’ death while in the course of robbing him; or (2) either Lorenzo or Sevilla had done so, under circumstances rendering appellant responsible under the law of parties. The second count charged appellant with committing the murders of Morales and Leslie Ann in the same criminal transaction. The charge required the jury to find that (1) appellant intentionally or knowingly caused their deaths; or (2) either Lorenzo or Sevilla had intentionally or knowingly caused their deaths, under circumstances rendering appellant responsible under the law of parties, or because the murders were the anticipated result of a conspiracy to commit another offense (robbery). Appellant was charged in the third count with the murder of Leslie Ann, an individual younger than six years of age. The jury charge required the jury to find that (1) appellant intentionally or knowingly caused the death of Leslie Ann; or (2) either Lorenzo or Sevilla had intentionally or knowingly caused her death, under- circumstances rendering appellant responsible under the law of parties, or because the murder was the anticipated result of a conspiracy to commit another offense (robbery).

The court submitted a separate jury charge for each count, along with a separate verdict sheet for each count. The jury found appellant guilty of each count. Appellant does not argue his insufficiency claim specifically as to any one or more of the counts.

Appellant’s claim that the evidence does not support a finding that he had specific intent to kill is applicable only to count one because that is the only theory under which intentionally causing death is an element. His conviction could be supported under counts two and three upon a finding that he acted intentionally or knowingly. Because the jury found appellant guilty under each of the three theories separately, two of which do not require a finding that applicant acted intentionally, appellant’s argument regarding legal insufficiency to prove specific intent is moot.

In a conclusory statement, appellant also claims that the evidence is insufficient to support a finding that appellant assisted, promoted, or encouraged Sevilla in committing the murders. He further asserts that he could not have reasonably foreseen or anticipated Sevilla’s actions in killing the victims. We address these contentions in the interest of justice.

“Evidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement.” Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994). Party participation may be shown by events occurring before, during, and after the commission of the offense, and may be demonstrated by actions showing an understanding and common design to do the prohibited act. Id.

According to appellant’s own confession, when Sevilla stated that he wanted to commit a carjacking, appellant dared him to do it and provided him with a shotgun. Sevil-la’s intent to do more than steal the car was apparent. If Sevilla had intended only to steal the car, he could have ordered Morales and Leslie Ann out as soon as he stopped the car, and left them at the side of the road. Instead, Sevilla handed the shotgun to appellant, who pointed it at Morales as Sevilla got in and drove to a remote area. Appellant did nothing as he watched Sevilla drag Morales from the car and shoot him. Later, Sevilla stated his plan to leave Leslie Ann where she could not be found, rejecting Lorenzo’s suggestion to leave her in a public place where she could be found. The evidence supports the inference that appellant and Lorenzo removed Leslie Ann from the car, still strapped in her car seat, and placed her in tall grass fifteen feet from a road and outside of town. The evidence is sufficient to support a finding that appellant encouraged and participated in, as a party, the murders of Morales and Leslie Ann. Point of error two is overruled.

In his first point of error, appellant claims that he was denied the effective assistance of counsel at trial for several reasons. To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel’s representation fell below the standard of prevailing professional norms, and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App.2001). Review of counsel’s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel’s conduct fell within a wide range of reasonable representation. Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App.1999). “In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.” Mallett, 65 S.W.3d at 63. To overcome the presumption of reasonable professional- assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996)).

Appellant alleges that his trial counsel was ineffective because he did not file a motion to transfer venue. Appellant claims he told his counsel that he wanted a change of venue, and that he was prepared to file his own affidavit and the affidavits of two other compurgators stating that the media coverage was incessant and the community sentiment was overwhelmingly negative and antagonistic toward appellant. Appellant points to nothing in the record in support of his allegations. In the absence of anything in the record affirmatively demonstrating otherwise, we presume that his counsel made a reasonable and strategic decision not to ask for a change of venue. See Mallett, 65 S.W.3d at 63.

Appellant also contends that his trial counsel was ineffective for failing to allow appellant to testify on his own behalf at the guilt phase of the trial. Appellant claims his counsel advised against testifying due to appellant’s prior convictions; but appellant remained adamant about wanting to testify. “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.” Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); see also Maddox v. State, 613 S.W.2d 275, 280 (Tex.Crim.App.1980)(recognizing that attorney has duty to protect client’s right to testify). However, appellant’s assertions in his brief on appeal, in the absence of anything in the trial record, are insufficient to show that he asserted his right to testify and his attorney failed to protect it. Mallett, 65 S.W.3d at 63.

Appellant next contends that his trial counsel was ineffective for failing to file a motion to quash the indictment or request a severance. Appellant claims that his indictment charged him with three separate and distinct capital murders, and contends that trial counsel should have recognized the indictment as “defective, misjoined, or subject to a severance.” He complains that trial counsel should have filed a motion to quash, a motion for election, or a motion for severance.

Trial counsel did file a Motion to Quash and/or Sever in which he complained of the three-count indictment and requested a severance of the charges. In the alternative, counsel asked that the indictment be quashed. Finally, he asked that the State be required to elect the charge on which it would proceed. The motion was addressed in a pretrial hearing. Appellant’s counsel did everything appellant contends he should have.

Finally, appellant claims that his trial counsel was ineffective for failing to request an instruction on the lesser-included offense of felony murder in the court’s charge at the guilt phase of the trial. Although appellant’s attorney requested and received a charge on the lesser-included offense of murder, appellant argues that a charge on felony murder would have been more appropriate.

A charge on a lesser-included offense should be given when (1) the lesser-included offense is included within the proof necessary to establish the offense charged; and (2) there is some evidence that would permit a rational jury to find that the defendant is guilty of the lesser offense but not guilty of the greater. See, Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.1993); Feldman v. State, 71 S.W.3d 738, 750-51 (Tex.Crim.App.2002). In meeting the second prong, there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. Feldman, 71 S.W.3d at 750. Felony murder is a lesser-included offense of capital murder. Rousseau, 855 S.W.2d at 673. Culpable mental state is the only difference between the two offenses. “Capital murder requires the existence of an ‘intentional cause of death,’ ... while in felony murder, ‘the culpable mental state for the act of murder is supplied by the mental state accompanying the underlying ... felony....’” Id. (quoting Rodriquez v. State, 548 S.W.2d 26, 29 (Tex.Crim.App.1977)).

The second prong of the test is not satisfied here, however, because the evidence did not raise any issue of felony murder. Appellant contends his counsel could have reasonably argued that the evidence showed felony murder — that in the course of committing a felony (robbery or kidnapping), and in furtherance of that particular felony, appellant committed an act clearly dangerous to human life that resulted in the death of an individual. The critical question is whether the evidence showed that appellant (as a principal or a party) had the intent only to rob or to kidnap, and he did not have the intent to kill. See Santana v. State, 714 S.W.2d 1, 9 (Tex.Crim.App.1986). Dragging Morales from the ear and shooting him in the head with' a shotgun at close range were not merely acts clearly dangerous to human life that resulted in a death. Likewise, placing Leslie Ann, a 21-month-old child, strapped into her car seat, in tall grass fifteen feet from a road and outside of town, was not merely an act clearly dangerous to human life. Whether appellant was the actual actor or criminally responsible for the acts of his cohorts by virtue of the law of parties, the evidence shows not only an intent to commit robbery or a lesser included offense, but also the intent to kill. Thus the evidence did not raise the issue of felony murder. Appellánt was not entitled to a charge on the lesser-included offense of felony murder and therefore his counsel was not ineffective when he did not request one. Point of error one is overruled.

In his fifth point of error, appellant claims that the trial court erred in denying his motion to impose reasonable restrictions on the media’s coverage of pretrial hearings. He contends that such coverage might have tainted the jury pool.

In a written motion entitled Motion to Restrict Publicity, appellant requested that all pretrial hearings be held in chambers, outside the presence and hearing of the public and press. At a pretrial hearing addressing the motion, appellant stated that he wanted to restrict the media’s coverage of pretrial hearings so that witnesses who would later be placed under “the Rule” during trial would not have access to certain information or testimony via news reports on pretrial hearings. As an “alternative solution,” appellant suggested admonishing the witnesses, like the jury, that they were not to read the paper or watch television. The court stated that it was not inclined to limit the media as broadly as stated in appellant’s written motion, but agreed that a witness admonishment like that suggested by appellant at the hearing “may be a good practice.” The court stated that it would consider the option, but was not ready to rule on it at that time. The court asked that appellant bring it to his attention later, before the Rule was invoked. Appellant does not point to any place in the record where he ultimately obtained a ruling on the issue. In stating that he was willing to accept an alternative solution to his complaint about media reports on pretrial hearings, appellant therefore waived the complaint as raised in his written motion. Further, in failing to obtain a ruling on his proposed alternative solution, he failed to preserve that issue for review. Tex.R.App. P. 33.1. Point of error five is overruled.

In his sixth point of error, appellant contends that because he was seventeen years old when the crime was committed, assessment of the death penalty against him violates the Eighth Amendment to the United States Constitution. In support of this claim, appellant cites State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo.2003), in which the United States Supreme Court granted certiorari to reconsider whether the Eighth Amendment is violated by the imposition of the death penalty against a criminal defendant who was seventeen years old when he committed the capital crime.

The United States Supreme Court has since decided Roper v. Simmons, 544 U.S. -, 125 S.Ct. 1183, 161 L.Ed.2d 1. The Court has now held that the “Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.” 125 S.Ct. at 1200, 161 L.Ed.2d at 28.

There is evidence in the record that appellant was seventeen years old when he committed the instant offense, and the State does not contend otherwise. The offense was committed on or about July 28, 2001. Appellant’s statement indicates that his birthdate is April 1, 1984. The booking sheet, the arrest report, the arrest warrant, and the trial court’s docket sheet, all contained in the record, reflect that appellant’s date of birth is April 1, 1984. In addition, defense counsel re-ferred to appellant repeatedly in closing argument as a “17-year-old,” and the State did not object. In view of the State’s implied concessions and the documents consistently reflecting appellant’s birthdate, the record adequately reflects that appellant was younger than eighteen years of age at the time of the offense. Pursuant to the Supreme Court’s mandate in Simmons, appellant’s death sentence is hereby reformed to a sentence of life imprisonment. Tex.R.App. P. 78.1; Herrin v. State, 125 S.W.3d 436, 444 (Tex.Crim.App.2002); Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App.1999). Point of error six is sustained.

We modify the judgment of the trial court to reflect a sentence of life imprisonment. In all other respects, the judgment of the trial court is affirmed.

WOMACK and KEASLER, JJ„ concurred.

      . Unless otherwise indicated, all references to Articles refer to the Texas Code of Criminal Procedure.

      . This can be inferred because appellant’s fingerprint was found on the bottom of the car seat, and two of Lorenzo’s prints were found elsewhere on the car seat. Sevilla’s prints were not found on the car seat.

      . In a three-count indictment, appellant was charged with capital murder in the course of a robbery, committing multiple murders in the same criminal transaction, and murder of a child under the age of six.

      . Defense counsel ultimately withdrew his motion to sever after the trial court made clear that it would not exclude evidence concerning the other counts, even if they were severed. Appellant does not complain that his counsel was ineffective in withdrawing the severance motion.

      .Appellant also claims that his counsel was ineffective for failing to request an anti-parties instruction in the court’s charge at punishment. Because we sustain appellant’s sixth point of error and reform appellant’s death sentence to a life sentence, any other complaints about alleged errors in the punishment phase of the trial are moot.

      . Tex.R. Evid. 614.

      . Appellant’s written motion also requested that five other restrictions be placed on the media coverage of the case. At the hearing, the court granted some of those requests and denied some of them. Appellant does not now appear to complain of any of those rulings.

      . We note that there are three separate judgments and death sentences in this case, one for each count. Each judgment and sentence is hereby modified to reflect a sentence of life imprisonment.

      . In points of error three and four, appellant complains about alleged errors in the punishment phase. Because we reform appellant’s death sentence to a sentence of life imprisonment, points three and four are moot.