164 F.3d 197
160 L.R.R.M. (BNA) 2129, 137 Lab.Cas.  P 10,342
BELL ATLANTIC-PENNSYLVANIA, INC.v.COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 13000;Communications Workers of America, AFL-CIO,District 13, Appellants.
NO. 98-1231
United States Court of Appeals,Third Circuit.
Argued Nov. 16, 1998.Decided Jan. 6, 1999.

Paula R. Markowitz (Argued), Markowitz & Richman, Philadelphia, PA, for Appellants.
Lawrence S. Coburn (Argued), Pepper, Hamilton & Scheetz, Philadelphia, PA, for Appellees.
Before:  BECKER, Chief Judge, GREENBERG, Circuit Judges and McLAUGHLIN, District Judge.*
OPINION OF THE COURT
BECKER, Chief Judge.

1
This labor arbitration appeal presents the question whether the District Court erred in finding that it was the role of the court--and not an arbitrator--to determine whether the underlying dispute between the parties was subject to one particular arbitration procedure rather than another.  We conclude that this issue--which of two arbitration procedures in a collective bargaining agreement applies to a particular labor dispute--is one of "procedural arbitrability," and therefore should be decided by an arbitrator and not a federal court.  We therefore reverse.

I. Facts and Procedural History

2
The parties to this dispute are Bell Atlantic-Pennsylvania ("Bell") and a local and regional body of the Communications Workers of America (collectively "CWA").  Bell and the CWA, or their predecessors, have been parties to a collective bargaining agreement ("CBA") for more than half a century.  The version of the CBA that is material to this appeal was modified and extended on August 6, 1995, with an effective ending date of August 8, 1998.  Under the CBA, the parties have agreed to arbitrate most disputes under the contractual arbitration procedure (the "regular arbitration" procedure).  However, under the CBA, some disputes that might arise are explicitly excluded from arbitration, while others may only be arbitrated under a special arbitration procedure (the "expedited arbitration" procedure).  Finally, some disputes may be arbitrated under either arbitration procedure.

3
The dispute underlying the present appeal, which is not before us (and was not before the District Court), revolves around Bell's reorganization of certain of its administrative units.  Following negotiations between the parties pursuant to the CBA's administrative-reorganization provisions, Bell and the CWA reached an impasse, and Bell implemented its proposed reorganization.  The Union claimed that this reorganization violated the CBA in a number of respects, including alleged violations of the CBA provisions governing employee transfers, involuntary assignments, overtime, and definition of employee duties.  It requested that these disputes be submitted to the regular arbitration procedure of the CBA.  Bell refused, arguing that the administrative reorganization provision of the CBA authorized the Union to use only the expedited arbitration procedure to resolve such disputes.

4
Bell then sued in the District Court, alleging that the Union had violated the CBA by insisting on submitting the above dispute to regular arbitration, and seeking a declaratory judgment that such disputes could only be submitted to the expedited arbitration procedure.1  Upon cross-motions for summary judgment, the District Court granted Bell's motion, holding that (1) the determination whether the parties' dispute must be submitted to the expedited arbitration procedure and not the regular procedure was a matter of "substantive arbitrability," and therefore for the court to decide;  (2) Bell was not required to arbitrate its allegation that the Union had violated the CBA;  and (3) the CBA provision in question required the Union to submit the underlying dispute to the expedited arbitration procedure and not the regular arbitration procedure.  The Union filed a timely notice of appeal.  We have jurisdiction pursuant to 28 U.S.C. § 1291.2

5
II. The Collective Bargaining Agreement's Arbitration Provisions

6
The CBA at issue here includes a number of provisions governing contract disputes between the parties.  The grievance-and-arbitration provision of the CBA provides:

7
If, at any time, a controversy should arise between the Union and the Company regarding the true intent and meaning of any provision of this Agreement or regarding any claim that either party has not performed a commitment of this Agreement, the controversy may be presented for review in accordance with the [grievance provisions] of this Article.  If the controversy is processed under these Sections and is not satisfactorily settled, the Union or the Company, by written notice specifying the Section of the Agreement alleged to be violated, may submit the question under dispute to arbitration in accordance with the provisions of Article 13 of this Agreement.

8
CBA § 10.07.  Article 13, in turn, provides that "[t]here shall be arbitrated only the matters specifically made subject to arbitration by the provisions of this Agreement," id. § 13.01, and that "[t]he procedure for arbitration is set forth in Exhibit B," id. § 13.02.

Exhibit B provides, in relevant part:

9
The procedure to be followed in instituting and conducting the arbitration of any matter subject to arbitration under the provisions of Article 13, shall be as follows, except that the tripartite board may be eliminated and an agency other than the American Arbitration Association may be substituted upon mutual agreement of the parties.

10
Id. § B1.01.  The remaining parts of Article B1 contain the details of the procedure "to be followed in instituting and conducting the arbitration of any matter subject to arbitration under the provisions of Article 13," including the appointment of an arbitrator by each side and the selection of an impartial third arbitrator.

11
Exhibit B also contains a procedure for "expedited arbitration":

12
In lieu of the procedures specified in Section B1 of this Agreement, any grievance involving the suspension of an individual employee, [with certain exceptions not here relevant,] shall be submitted to arbitration under the expedited arbitration procedure hereinafter provided within fifteen (15) calendar days after the filing of a request for arbitration.  In all other grievances involving disciplinary action which are specifically subject to arbitration under Article 11 of this Agreement, both parties may, within fifteen (15) calendar days after the filing of the request for arbitration, elect to use the expedited arbitration procedure hereinafter provided.  The election shall be in writing and, when signed by authorized representatives of the parties, shall be irrevocable.  If no such election is made within the foregoing time period, the arbitration procedure in Section B1 shall be followed.

13
Id. § B2.01.

14
The underlying dispute in this case is governed, inter alia, by Article 39 of the CBA.  Under Article 39, Bell must follow certain procedures when a reorganization is contemplated, including consulting with the Union.  If these consultations fail to result in a reorganization agreement, Bell may implement its own plan.  Under the provision at the heart of this case, "[i]f management implements procedures without the agreement of the Union, the Union may submit to expedited arbitration the question whether the procedures implemented are in compliance with the standards and requirements listed in [section] 39.05."  Id. § 39.07.

III. Substantive and Procedural Arbitrability

15
The ultimate question presented by Bell's initial complaint is whether Article 39 requires the Union to use the expedited arbitration procedure to resolve the disputes surrounding Bell's administrative reorganization.  However, a threshold question--one that is dispositive of this appeal--is interposed, for when faced with a dispute involving labor arbitration, a federal court must first determine whether resolution of the disagreement is for the court or for an arbitrator to undertake.  In this case, Bell argued and the District Court found that the issue of which arbitration procedure applied to the parties' reorganization dispute was a matter properly for the court, and not an arbitrator, to decide.  For the reasons that follow, we disagree.

A.

16
Disputes surrounding arbitration have often been divided into the categories of "substantive arbitrability" and "procedural arbitrability."   Substantive arbitrability refers to the question whether a particular dispute is subject to the parties' contractual arbitration provision(s).  Absent a clear expression to the contrary in the parties' contract, substantive arbitrability determinations are to be made by a court and not an arbitrator.  Our national labor policy evinces a strong preference for peaceful, self-resolution of labor-management disputes, as explained in the famous "Steelworkers' Trilogy."3  However, if an arbitrator were to decide the substantive arbitrability issue, a party objecting to having the underlying dispute submitted to arbitration on the ground that it did not consent to do so would already have its alleged intent (to not submit the dispute to arbitration) ignored.  See Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 374, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974) ("The law compels a party to submit his grievance to arbitration only if he has contracted to do so.");  John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964) ("The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty.").  Therefore, parties may be sent to arbitration only after the court so directing them is satisfied that this was their intent and that both parties consented to do so in their contractual agreement.

17
Once this threshold determination has been made by the court, i.e., once the court has discerned the parties' intent to submit their underlying dispute to arbitration, any further matters surrounding the dispute are to be submitted to the arbitration procedure.  See Chauffeurs, Teamsters & Helpers, Local Union No. 765 v. Stroehmann Bros. Co., 625 F.2d 1092, 1093-94 (3d Cir.1980) ( "The court's role ... [is] to determine whether the underlying subject matter of the grievance was arbitrable.  Once that determination has been made the entire dispute must be resolved by the arbitrator."  (citation omitted)).  These other matters are labeled, perhaps underinclusively, procedural arbitrability issues, and are resolved as part of the arbitration procedure to which the parties have committed themselves, as a number of cases, arising in somewhat different scenarios but nonetheless instructive here, demonstrate.  We set them forth in the margin.4

18
In its leading procedural arbitrability case, the Supreme Court explained why procedural arbitrability issues are best left to the arbitrator:

19
Doubt whether grievance procedures or some part of them apply to a particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate cannot ordinarily be answered without consideration of the merits of the dispute which is presented for arbitration.

20
John Wiley & Sons, 376 U.S. at 557, 84 S.Ct. 909.   Therefore, procedural issues are to be resolved by the arbitrator, once (and only after) the court determines that the underlying dispute is one the parties have agreed to submit to the arbitrator.

B.

21
The District Court in this case believed that the threshold question before it was "whether the subject matter of the instant dispute is covered and/or excluded from regular arbitration under Sections 10.07 and B1." Bell Atl.-Pa., Inc. v. Communications Workers, Local 13000, No. CIV.A.97-4179, 1998 WL 84017, at * 9 (E.D.Pa. Feb.26, 1998) (emphasis added).  Put another way, the court found that "the issue presented is whether the Company agreed to arbitrate Article 39 disputes through Section B1 regular arbitration--a question of substantive arbitrability."  Id. (emphasis added).  However, the actual threshold question before us--and given our resolution of this issue, the only one before us--is whether Bell agreed to arbitrate Article 39 disputes.  This is both a question of substantive arbitrability and, given Bell's concession that the reorganization disputes are subject to some arbitration procedure, a foregone conclusion.  Bell does not contend that it did not agree to arbitrate disputes arising from its administrative reorganizations.  Rather, it disagrees with the Union's claim that these disputes are subject to a particular arbitration procedure.  This disagreement, however, is not one of substantive arbitrability.

22
The fundamental error of the District Court was its expansion of the basic substantive arbitrability question ("whether or not the company was bound to arbitrate"5) into a much broader inquiry, one that falls outside of the substantive arbitrability domain ("whether the particular arbitration clause covers the subject matter of the particular dispute between the parties"6 ).  Such an expansion is unwarranted.  It is inconsistent with this Court's and the Supreme Court's precedents in this area and it is not dictated by the policy concerns behind the substantive arbitrability doctrine.7

23
The District Court invoked these policy concerns when it found that submitting to an arbitrator the issue of which arbitration provision applies to the parties' dispute "would possibly deter other Unions and employe[rs] from entering into such agreements to arbitrate."  Bell Atl.-Pa., 1998 WL 84017, at * 10 n. 8. The District Court's concern is simply misplaced:  Bell is bound to arbitrate the underlying dispute no matter what the court decides.  Allowing an arbitrator to determine which procedure will be used does not force Bell to arbitrate any disputes that it believed it was withholding from arbitration--unlike the situation when the basic determination of whether or not an underlying dispute is arbitrable is sent to an arbitrator.

24
What Bell asks us to do here is to greatly expand the class of substantive arbitrability cases.  In its view, the disagreement between the parties--whether a dispute will be resolved through arbitration procedure A or arbitration procedure B--is no different from the traditional substantive arbitrability question--whether a dispute will be resolved through an arbitration procedure or through some other means, such as litigation, a strike, or a lockout.  This argument, however, has no logical limits.  If the present case involves substantive arbitrability, why not also a case asking whether a dispute is to be resolved through an arbitration procedure or an unexhausted grievance procedure?   See John Wiley & Sons, 376 U.S. at 556-57, 84 S.Ct. 909 (employer's argument that union must first submit dispute to grievance procedure was a matter for the arbitrator to decide).

25
We find the present case functionally indistinguishable from (and controlled by) those cases in which the parties agree that an underlying dispute is arbitrable, but disagree about the effect of laches, waiver, exhaustion of prearbitration steps, limitations periods, or other "procedural" issues.  See supra note 4. Bell and its Union agree that disputes over the reorganization of administrative groups may be resolved through arbitration;  they simply disagree on the procedures to be followed.  The Union has asked that both of these issues--the reorganization dispute and the procedure to be followed--be submitted to an arbitrator, and we hold that this is the proper course for the parties.  See John Wiley & Sons, 376 U.S. at 558, 84 S.Ct. 909 (holding that the court must send the parties to arbitration in "cases in which arbitrability of the subject matter is unquestioned but a dispute arises over the procedures to be followed").8

26
The District Court's judgment will be reversed and this case remanded for further proceedings consistent with this opinion.

*
 Honorable Sean J. McLaughlin, United States District Judge for the Western District of Pennsylvania sitting by designation

1
 The District Court had jurisdiction pursuant to section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and 28 U.S.C. § 1331

2
 While we review for clear error a district court's factual determination that a contractual dispute is arbitrable, see Lukens Steel Co. v. United Steelworkers, 989 F.2d 668, 672 (3d Cir.1993), we exercise plenary review over the legal question presented here, i.e., whether a contractual dispute is one of substantive or procedural arbitrability

3
 See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598-99, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960);  United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 577-78, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960);  United Steelworkers v. American Mfg. Co., 363 U.S. 564, 566-67, 80 S.Ct. 1363, 4 L.Ed.2d 1432 (1960)

4
 See, e.g., International Union of Operating Eng'rs, Local 150 v. Flair Builders, Inc., 406 U.S. 487, 491-92, 92 S.Ct. 1710, 32 L.Ed.2d 248 (1972) ("[O]nce a court finds that, as here, the parties are subject to an agreement to arbitrate, and that agreement extends to 'any difference' between them, then a claim that particular grievances are barred by laches is an arbitrable question under the agreement.");  Independent Ass'n of Continental Pilots v. Continental Airlines, 155 F.3d 685, 696 (3d Cir.1998) (holding that "determination of the parameters and scope" of an arbitrator's award, which involved "an analysis of the interplay" between various contract provisions, was a matter for the arbitrator to decide, not the courts);  Whittle v. Local 641, Int'l Bhd. of Teamsters, 56 F.3d 487, 490 n. 2 (3d Cir.1995) ("Timeliness is a procedural issue, and in an arbitration proceeding, procedural issues are for the arbitrator to decide.");  Troy Chem.  Corp. v. Teamsters Union Local No. 408, 37 F.3d 123, 127-28 (3d Cir.1994) ("Once the court decided that the discharges were subject to arbitration, it should have held that the dispute was arbitrable and that matters relating to compliance with the grievance procedure or a waiver were matters for the arbitrator.");  Stroehmann Bros. Co., 625 F.2d at 1093 ("[T]he significance of a default in literal compliance with a contractual procedural requirement calls for a determination of the intention of the parties to the contract.  Such a determination ..., under the governing case law, [is a matter] for the arbitrator.");  Controlled Sanitation Corp. v. District 128, Int'l Ass'n of Machinists & Aerospace Workers, 524 F.2d 1324, 1331 (3d Cir.1975) (holding that company's contention that union repudiated the agreement to arbitrate a particular dispute was a matter for the arbitrator, and not the court, to decide)

5
 AT & T Techs., Inc. v. Communications Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (internal quotations omitted)

6
 Bell Atl.-Pa., 1998 WL 84017, at * 10

7
 In support of its position, Bell cites two cases ostensibly involving multiple arbitration procedures like those that exist here.  The first, Adams v. Gould, Inc., 687 F.2d 27 (3d Cir.1982), is completely inapposite.  The "sole question" in that interlocutory appeal was "whether certain individual employees ... [were] bound by the results of an arbitration between their employer and their union and thereby barred from bringing their complaint in federal court."  Id. at 28.   In Adams, the union had arbitrated a grievance under one of two arbitration clauses, and an arbitration award was eventually issued.  Individual employees then sought to litigate in federal court the same dispute that was the subject of the arbitration.  We reversed the district court's denial of summary judgment on behalf of the employer, concluding that the employees were bound by the results of the arbitration.  See id. at 33.   One of the grounds that the individual employees urged in support of their argument that they were not bound by the arbitration award was that the parties (i.e., the employer and union) had used the incorrect arbitration procedure.  See id. at 32.   There is no indication that the parties actually discussed this issue during the arbitration or that the arbitrator adjudicated the issue.  Rather, it arose only in the collateral context of our examining the employees' claim that they were not bound by the already-issued arbitration award.  Not surprisingly, given that no alternative forum existed for resolving this issue, we reached (and rejected) it.  We were in no way faced squarely with the issue presented here:  must the court, rather than an arbitrator, determine which is the appropriate arbitration procedure when the parties agree that their dispute will be arbitrated at some future date?
The other case relied on by Bell comes from the Seventh Circuit.  See Torrington Co. v. Local Union 590, Int'l Union of Auto.  Workers, 803 F.2d 927 (7th Cir.1986).  Although the court in Torrington decided which of two arbitration provisions applied to the parties' underlying dispute, neither party argued that this was an issue for the arbitrator and not for the court to decide.  Further, the union originally sought to litigate in court the underlying dispute, arguing that none of the arbitration provisions applied, presenting the court with a clear substantive arbitrability problem.  Finally, the court found that the arbitration procedure that the union (subsequently) argued should be used clearly and expressly did not apply to the underlying dispute.  See id. at 931.   This distinguishes that provision from the regular arbitration provision in the present case.  Cf. PaineWebber, Inc. v. Hartmann, 921 F.2d 507, 513 (3d Cir.1990) (holding that the "plain language" of the parties' contract, which limited the cases "eligible for submission to arbitration," rendered the underlying dispute not arbitrable).

8
 Because we hold that the District Court erred in finding that the question of which arbitration procedure should be followed was an issue for the court, and not an arbitrator, to decide, we do not reach the other issues decided by the District Court.  This includes its holding that Bell was not required to submit its allegation that the Union violated the CBA to an arbitrator, and the District Court's ultimate determination regarding the meaning of section 39.07 of the CBA.  The first of these issues is mooted by our resolution of this appeal, while the second issue, as we have held above, is not for us (or the District Court), but for the arbitrator to decide


                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

DEVONTA MOBLEY,                      NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-1702

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed February 19, 2015.

An appeal from the Circuit Court for Leon County.
James C. Hankinson, Judge.

Jeffrey E. Lewis, General Counsel, and Michael Jerome Titus, Assistant Conflict
Counsel, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.

PER CURIAM.

      AFFIRMED.

PADOVANO, CLARK, and MARSTILLER, JJ., CONCUR.


       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                          JUDGMENT RENDERED JULY 14, 2016

                                      NO. 03-15-00455-CV

                                     Scott P. Ogle, Appellant

                                                 v.

             Maeli Hector, a/k/a Maeli Arellano, a/k/a Maeli Johnson, Appellee

   APPEAL FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
        BEFORE JUSTICES PURYEAR, PEMBERTON, AND BOURLAND
  DISMISSED FOR WANT OF JURISDICTION -- OPINION BY JUSTICE PURYEAR
              DISSENTING OPINION BY JUSTICE PEMBERTON

This is an appeal from the judgment signed by the trial court on July 6, 2015. Having reviewed

the record, it appears that the Court lacks jurisdiction over the appeal. Therefore, the Court

dismisses the appeal for want of jurisdiction. Appellant shall pay all costs relating to this appeal,

both in this Court and the court below.


756 So.2d 852 (2000)
Dedrick JONES, Appellant,
v.
STATE of Mississippi, Appellee.
No. 1999-KA-00415-COA.
Court of Appeals of Mississippi.
February 15, 2000.
Certiorari Denied May 25, 2000.
*854 John D. Watson, West Memphis, AR, Attorney for Appellant.
Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.
EN BANC.

ON MOTION FOR REHEARING
MOORE, J., for the Court:
¶ 1. The motion for rehearing filed in this matter is denied. The original opinion issued in this case is withdrawn, and the following opinion is substituted therefore.
¶ 2. Appellant Dedrick Jones was indicted by a Desoto County grand jury for simple assault upon a law enforcement officer. *855 Following a trial, the jury found Jones guilty of the crime charged. The circuit court sentenced Jones to five years imprisonment in the custody and control of the Mississippi Department of Corrections, said sentence to run consecutively to any sentences Jones was currently serving and any other previously imposed. Aggrieved, Jones cites the following issues on appeal:
I. WHETHER THE TRIAL COURT ERRED IN DENYING JONES'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS;
II. WHETHER THE TRIAL COURT ERRED IN DENYING JONES'S MOTION FOR DIRECTED VERDICT;
III. WHETHER THE TRIAL COURT ERRED IN DENYING JONES'S PEREMPTORY INSTRUCTION AND GRANTING THE STATE'S S-1 INSTRUCTION; AND
IV. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

STATEMENT OF THE FACTS
¶ 3. October 22, 1997, Sergeant Chris Sing, a shift supervisor for the Hernando Police Department, was out on a routine patrol when he noticed Appellant Dedrick "Deck" Jones acting suspiciously. Sgt. Sing approached Jones who then walked up to a residence. Jones stopped in the threshold of the residence and turned around to look back at Sgt. Sing. His suspicions aroused, Sgt. Sing radioed his communications officer to determine whether Jones had an outstanding arrest warrant. The communications officer informed Sgt. Sing that Jones had a warrant out for his arrest. After responding to an unrelated alarm call, Sgt. Sing saw Officer Steve Atkinson, a patrolman for the Hernando Police Department, and asked him to help execute the warrant for Jones's arrest. Sgt. Sing and Officer Atkinson each drove his own patrol car.
¶ 4. Sgt. Sing and Officer Atkinson drove back to the vicinity where Sgt. Sing last saw Jones. They saw Jones on Park Street, in the same area where he was before. Sgt. Sing and Officer Atkinson both parked their patrol cars. Sgt. Sing advised Jones that he had a warrant for his arrest. Jones ran. Officer Atkinson pursued Jones on foot through a woman's backyard. Sgt. Sing returned to his patrol car and drove around the block to cut Jones off. Officer Atkinson chased Jones down a hill into a wooded lot. Officer Atkinson testified that when he reached the bottom of the hill, Jones stopped and took an aggressive posture with his fists raised. Hoping to knock Jones off balance, Officer Atkinson tried to run into Jones. Jones did not fall, but Officer Atkinson fell forward. Officer Atkinson testified that Jones then got behind him and hit him in the back several times. Officer Atkinson was not wearing his bulletproof vest. According to Officer Atkinson, he and Jones scuffled for a few seconds, and he got Jones down in a kneeling posture. Officer Atkinson held Jones by the jacket, who then slipped his arms out of the jacket and took off running again. At this point, Sgt. Sing had arrived on the scene. Sing and Atkinson together apprehended Jones who had tripped and fallen over some bushes.
¶ 5. Sgt. Sing did not witness the scuffle between Officer Atkinson and Jones. He did, however, observe that both Atkinson and Jones were breathing hard and Atkinson's uniform was in disarray. Sgt. Sing also noticed that Officer Atkinson's finger was bleeding profusely.
¶ 6. Jones's version of the events differed somewhat. He denied that Sgt. Sing told him that he had a warrant for his arrest. He admitted, however, that he ran from Sgt. Sing and Officer Atkinson. Jones stated: "I didn't have no [sic] reason for running. You know, he told me to come here, so I just fleed [sic]." Jones testified that he fell when Officer Atkinson caught up with him, that Atkinson grabbed him by the jacket, and that he slipped out of the jacket and ran again. Jones testified *856 that there was no physical contact between Atkinson and him. Jones emphatically denied hitting Officer Atkinson in the back.
¶ 7. Officer Atkinson testified that he injured his finger at some point during his fight with Jones. Atkinson sought medical attention for his injured finger, but did not seek attention for his back. Officer Atkinson did not miss any work due to his injured finger or his back. He testified that he experienced back pain on the day Jones hit him but that the pain had disappeared by the next day. Jones was arrested and charged with simple assault upon a law enforcement officer.

LAW AND ANALYSIS

I. DID JONES RECEIVE HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL?
¶ 8. Jones asserts the State violated his right to a speedy trial under U.S. Const. amend. VI and Miss. Const. art. 3, § 26.[1] To determine whether Jones's constitutional rights were observed, this Court must examine Jones's case under the four factors listed in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These factors are length of the delay, reason for the delay, the defendant's assertion of his speedy trial right, and prejudice to the defendant resulting from the delay. Id. at 533, 92 S.Ct. 2182. "The weight given each [factor] necessarily turns on the peculiar facts and circumstances of each case, the quality of evidence available on each factor and, in the absence of evidence, identification of the party with the risk of non-persuasion. No one factor is dispositive." Jaco v. State, 574 So.2d 625, 630 (Miss.1990). See Skaggs v. State, 676 So.2d 897, 900 (Miss. 1996); Taylor v. State, 672 So.2d 1246, 1258 (Miss.1996).
¶ 9. The relevant procedural history follows: Jones was arrested for simple assault upon a law enforcement officer on October 22, 1997. He posted a bond the same day and was released from prison. On October 27, 1997, Jones was arrested on two charges of cocaine possession. He was incarcerated December 17, 1997; the record is not clear why he was incarcerated on this date. On March 26, 1998 the Desoto County grand jury indicted Jones for simple assault of a law enforcement officer. Jones waived arraignment and pled not guilty on April 28, 1998. Also, on April 28, 1998 Jones's parole on a prior criminal conviction was revoked due to the cocaine possession charges. On May 5, 1998 a jury convicted Jones for possession of cocaine, and the trial court sentenced him on the same day. On June 17, 1998 the judge who revoked Jones's parole for the drug charges, amended his revocation order naming as additional revocation grounds a subsequent charge against Jones for capital rape. On July 7, 1998 Jones filed a demand for speedy trial in the present case. On August 31, 1998 Jones filed a motion to dismiss on speedy trial grounds, and the circuit court heard and denied the motion. On September 24, 1998 the case was tried before a jury, and Jones was convicted of simple assault upon a law enforcement officer.

A. Length of Delay
¶ 10. Unlike the statutory right to a speedy trial, provided in Miss.Code Ann. § 99-17-1 (Rev.1994), which attaches on the date the accused is arraigned, the constitutional right to a speedy trial attaches on the date the defendant effectively stands accused. Beavers v. State, 498 So.2d 788, 790 (Miss.1986). See Skaggs, 676 So.2d at 900 overruled on other grounds in State v. Ferguson, 576 So.2d 1252, 1255 (Miss.1991); State v. Magnusen, 646 So.2d 1275, 1278 (Miss.1994); Smith v. State, 550 So.2d 406, 408 (Miss. *857 1989). The Mississippi Supreme Court has repeatedly held the date the defendant effectively stands accused is the date of the accused's arrest. Taylor, 672 So.2d at 1257; Magnusen, 646 So.2d at 1278; Smith, 550 So.2d at 408. In the present case, the constitutional clock began ticking on the date of Jones's arrest, October 22, 1997.
¶ 11. A delay of eight months or more between the day the right to a speedy trial attaches and the accused's trial is presumptively prejudicial. Taylor, 672 So.2d at 1258; Flores v. State, 574 So.2d 1314, 1322 (Miss.1990); Smith, 550 So.2d at 408. Jones was tried 322 days after his arrest, a delay of approximately eleven months. Although the delay is presumptively prejudicial under the above authority, the delay does not automatically establish that Jones was denied his right to a speedy trial. Instead, the delay merits a closer examination of the remaining Barker factors. Skaggs, 676 So.2d at 900; Magnusen, 646 So.2d at 1280; Smith, 550 So.2d at 406.

B. Reason for Delay
¶ 12. The burden is on the State to provide an accused person with a speedy trial. Skaggs v. State, 676 So.2d at 900. Delays which are not attributable to the defendant count against the State unless the State shows good cause for the delay. Id. at 901. In denying Jones's motion to dismiss on speedy trial grounds, the circuit court observed that Jones's trial was delayed because Jones and the State were involved in plea negotiations, because the court tried an older murder case on the date originally set for Jones's trial, and because of the court's "extremely crowded" criminal docket. Further, the trial court noted that Jones was tried on another criminal case on May 5, 1998.
¶ 13. The trial court found as part of its good cause inquiry that Jones and the State were involved in ongoing plea negotiations, which were initiated by the State after Jones's May 5th conviction on drug possession charges. Plea negotiations can constitute good cause for delay. Taylor, 672 So.2d at 1259. Jones testified at his speedy trial hearing that he never expressed any interest in accepting the plea bargain offered by the State. The record reflects some controversy regarding when the defendant informed the State that he was not interested in a plea bargain. Since the State did not offer any documentation to substantiate its claim of plea negotiations, this Court must decline to credit the State with the delay caused by such. Id.
¶ 14. The trial court further noted that it had gotten off more than 1,800 cases from its criminal docket in the year prior to Jones's speedy trial hearing. On the day Jones's trial was originally set, the court tried a murder case, over a three day period, which had been on the docket longer than Jones's assault case. While a crowded docket alone will not establish good cause, "the specific facts of the case may give rise to good cause." Magnusen, 646 So.2d at 1282. Even if a crowded docket does not establish good cause in a particular case, "[d]elays caused by overcrowded dockets are not to be weighed heavily against the State." Id. Given that the State has the ultimate responsibility to timely bring a case to trial, Magnusen, 646 So.2d at 1281, ( citing Barker, 407 U.S. at 531, 92 S.Ct. 2182), this Court holds the State has not shown good cause for the delay. However, since the delay was only three months over the presumptively prejudicial time period, and since there has been no allegation that the State deliberately delayed the trail, we do not weigh the length of delay heavily against the State.

C. Assertion of the Right
¶ 15. "Although it is the State's duty to insure that the defendant receives a speedy trial, a defendant has some responsibility to assert this right. (cites omitted). Failure to assert the right will make *858 it difficult for a defendant to prove that he was denied a speedy trial." Taylor, 672 So.2d at 1261 (quoting Barker, 407 U.S. at 531-32, 92 S.Ct. 2182). Jones asserted his right to a speedy trial July 7, 1998, approximately nine months after his arrest. He moved to dismiss his case on speedy trial grounds August 31, 1998. Twenty-four days later, Jones was tried and convicted. While delay in asserting the right to a speedy trial does not constitute a waiver to the right, it is a factor to consider in the overall balancing process.

D. Prejudice to Defendant
¶ 16. This Barker factor "seeks to prevent oppressive pretrial incarceration, minimize anxiety and concern of the accused, and to limit the possibility that the defense will be impaired by the inability to locate witnesses or by failing memories of witnesses." Id. Pretrial incarceration will not alone justify reversal. Id. The record clearly reveals that Jones was released on a bond on the same day he was arrested for the crime involved in the present case. He returned to prison on December 17, 1997, but the record is not clear whether his return to prison was for the charges in the present case, for the parole revocation, or for the subsequent drug or rape charges. Assuming that Jones's December 17 arrest was for the simple assault case, his incarceration for such only lasted until his parole revocation on April 28. Further, Jones began serving his sentence for the drug possession conviction on May 5. The most Jones was incarcerated for the simple assault charge was four months, from December 17 to April 28. This period is debatable; however, since the record does not clearly reflect why he was arrested in December.
¶ 17. Jones testified at his speedy trial hearing that he was "stressed out" due to the State's delay in bringing him to trial. While it is normal to experience a certain amount of stress awaiting trial on a criminal charge, this Court finds that much, if not all, of Jones's stress was attributable to the more serious drug and capital rape charges pending against him. While Jones "may have had a right to be anxious and concerned, not all of his woes and tribulations were a product of the charges preferred in this case." Magnusen, 646 So.2d at 1285.
¶ 18. Jones also testified that his memory of the events giving rise to the present case had faded and that this impaired his ability to assist in his defense. The trial transcript tells a different story. Jones testified on his own behalf at trial. He demonstrated perfect recall of the events leading to his arrest. Further, Jones did not communicate any specific factor which impaired his ability to prepare for the defense of his case. He did not argue that the delay caused him to lose contact with witnesses who could testify in his behalf. "Although the delay in this case is presumptively prejudicial, we will not infer prejudice to the defense out of the `clear blue.'" Id. Finding no prejudice, this Court weighs this factor in the State's favor.

E. Balancing
¶ 19. A balancing of all the Barker factors reveals that Jones was not prejudiced by the delay in bringing his case to trial. Jones was imprisoned for a period of time before trial, but most, if not all, of his period of imprisonment stemmed from his parole revocation and conviction on subsequent criminal charges. While the State bore the burden of providing Jones with a speedy trial, Jones did not assert the right until nine months after his arrest. "Where, as here, the delay is neither intentional nor egregiously protracted, and where there is a complete absence of actual prejudice, the balance is struck in favor of rejecting [Jones's] speedy trial claim." Perry v. State, 637 So.2d 871, 876 (Miss. 1994). Under the totality of the Barker factors, this Court finds the State observed Jones's right to a speedy trial.

II. DID THE TRIAL COURT ERR IN DENYING JONES'S MOTION FOR DIRECTED VERDICT?
*859 ¶ 20. At the close of the State's evidence, Jones moved for a directed verdict. The trial court denied Jones's motion, and the trial resumed. A motion for a directed verdict challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). This Court reviews the ruling on the last occasion the sufficiency challenge is made to the trial court. Wetz v. State, 503 So.2d 803, 807 n. 3 (Miss.1987). In the case at bar, the defendant last challenged the sufficiency of the evidence in his motion for judgment notwithstanding the verdict. This Court will, therefore, review the evidence in its state at the time the trial court overruled Jones's motion for JNOV.
¶ 21. The indictment charged Jones with "wilfully, unlawfully and feloniously, purposely, knowingly or recklessly caus[ing] bodily injury to Steve Atkinson by hitting Steve Atkinson with his fists, in direct violation of Section 97-3-7(1)(a), Mississippi Code 1972 Annotated, as amended...." Jones argues that the State did not introduce medical evidence to corroborate Atkinson's claim of bodily injury. Further, he argues that Atkinson did not miss any work due to his alleged injuries. Jones argues, therefore, that the evidence is not sufficient to support a conviction for the crime charged in the indictment.
¶ 22. In determining whether the evidence was legally sufficient to support the crime charged in the indictment, this Court must view the evidence in the light most favorable to the State, and the benefit of all favorable inferences that may be reasonably drawn from the evidence must be given to the State. McClain, 625 So.2d at 778; Wetz, 503 So.2d at 808. This Court must accept as true the credible evidence consistent with Jones's guilt. McClain, 625 So.2d at 778. We may reverse "only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Id.
¶ 23. The inquiry in the present case is whether the jury could have only found Jones not guilty of inflicting bodily injury on Atkinson after viewing the evidence in the light most favorable to the State. A threshold question is: what constitutes bodily injury? In Murrell v. State, 655 So.2d 881, 884 (Miss.1995), the Mississippi Supreme Court noted that "a minor injury is a `bodily injury' even though it may not be a traumatic injury." (citing Reining v. State, 606 So.2d 1098, 1103 (Miss.1992)). The Murrell court did not require medical evidence of bodily injury to support a guilty verdict, but simply ruled testimony that the injured party experienced pain would suffice. Murrell, 655 So.2d at 884. The court held, however, that no evidence was introduced on the issue of bodily injury, not even testimony that the allegedly injured officer experienced pain due to the injury. The court noted: "[T]here are no Mississippi cases which address the issue of whether a jury can infer that one suffers pain where there is no medical treatment, no wound and no testimony concerning pain." Id. The Court declined to infer pain, holding that it is a simple task to ask the officer at trial whether he experienced pain.
¶ 24. In the present case, Officer Atkinson testified that he experienced pain due to Jones's hitting him in the back with his fists. Under Murrell, this testimony is legally sufficient to support the jury's verdict that Jones inflicted bodily injury upon Officer Atkinson. Further, Sgt. Sing testified that Atkinson's finger was bleeding so much that he insisted that Atkinson have it checked out by medical personnel. Taking this evidence in the light most favorable to the State, this Court finds the evidence legally sufficient to withstand a directed verdict.

III. DID THE TRIAL COURT ERR IN DENYING JONES'S PEREMPTORY INSTRUCTION AND GRANTING THE STATE'S S-1 INSTRUCTION?
*860 ¶ 25. Jones requested a peremptory instruction charging the jury that it must find him not guilty. This claim of error also challenges the legal sufficiency of the evidence, McClain, 625 So.2d at 778; therefore, it requires the same analysis as a motion for a directed verdict. Having held that the evidence was legally sufficient to withstand a directed verdict, this Court also holds that it was legally sufficient to defeat Jones's request for peremptory instruction.
¶ 26. Jones's complaint regarding S-1 is the same complaint regarding his directed verdict motion and his request for a peremptory instruction, that is, that S-1 is not supported by the evidence because the State did not prove the bodily injury claim. S-1 is the State's requested instruction on the elements of the crime of simple assault upon a law enforcement officer. S-1 accurately informed the jury that if it found Jones inflicted bodily injury upon Officer Atkinson, a man he knew to be an officer of the law, they must find Jones guilty of simple assault upon a law enforcement officer. Again, Officer Atkinson's testimony that he experienced pain and evidence that he received medical treatment for his injured finger was sufficient evidence of bodily injury. The trial court correctly instructed the jury regarding the elements of the crime for which Jones was indicted.

IV. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?
¶ 27. Jones claims the guilty verdict was against the overwhelming weight of the evidence. An overwhelming weight of the evidence argument is raised on a motion for new trial. McClain, 625 So.2d at 781. "New trial decisions rest in the sound discretion of the trial court, and the motion should not be granted except to prevent an unconscionable injustice. We reverse only for abuse of discretion, and on review we accept as true all evidence favorable to the State." Id.; Wetz, 503 So.2d at 807-08. The jury must review and weigh the conflicting evidence and witnesses' credibility and decide what evidence and whose testimony to believe. Id. In the present case, Jones's testimony conflicted with Officer Atkinson's and Sgt. Sing's testimony. The jury obviously chose to credit Atkinson's and Sing's testimony over Jones's. Accepting the evidence in the State's favor as true, this Court finds the verdict was not against the overwhelming weight of the evidence, and to allow it to stand will not sanction an unconscionable injustice. Id. at 782.

CONCLUSION
¶ 28. Jones was not prejudiced by the 322 day delay between his arrest and trial, especially since most, if not all, of his pretrial incarceration was caused by his parole revocation and conviction on unrelated charges. Further, Jones failed to assert his right to a speedy trial in a timely manner. Since there was no prejudice, and since the delay was not egregiously protracted, we find that Jones received his constitutional right to a speedy trial. Further, Officer Atkinson's testimony that he experienced back pain due to punches delivered by Jones was legally sufficient to constitute bodily injury; thus, the trial court correctly denied his motion for a directed verdict, his motion for peremptory instruction, and his objection to jury instruction S-1. Finally, weighing conflicting evidence and testimony is within the jury's purview. We find, therefore, that the guilty verdict was not against the overwhelming weight of the evidence, and no unconscionable injustice resulted therefrom. Accordingly, we affirm the judgment of the trial court.
¶ 29. THE JUDGMENT OF DESOTO COUNTY OF CONVICTION OF SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCE OF FIVE YEARS TO RUN CONSECUTIVELY *861 TO ANY SENTENCE DEFENDANT IS CURRENTLY SERVING AND ANY OTHERS PREVIOUSLY IMPOSED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, DIAZ, IRVING, LEE, PAYNE, AND THOMAS, JJ., CONCUR.
NOTES
[1]  Jones did not assert the statutory right to a speedy trial provided in Miss.Code Ann. § 99-17-1 (Rev.1994).


262 P.3d 358 (2011)
STATE
v.
PEREZ.
No. 104310.
Court of Appeals of Kansas.
October 28, 2011.

Decision Without Published Opinion
Affirmed.


599 So.2d 60 (1991)
Donald BAKER
v.
STATE.
CR-89-1191.
Court of Criminal Appeals of Alabama.
October 25, 1991.
Rehearing Denied May 1, 1992.
*61 M. Joanne Camp, Opelika, for appellant.
James H. Evans, Atty. Gen., and Andrew J. Segal, Asst. Atty. Gen., for appellee.
McMILLAN, Judge.
The appellant was convicted of murder, in violation of § 13A-6-2, Code of Alabama 1975. He was sentenced, pursuant to the Habitual Felony Offender Act, to life imprisonment without parole.

I
The appellant argues that the trial court erred in refusing to appoint a psychiatrist to assist the appellant at trial; in failing to allow into evidence the appellant's psychiatric records from Greil Hospital and Taylor Hardin Secure Medical Facility; and in failing to grant the appellant's motion requesting funds to depose psychiatrists who had examined the appellant, which the trial court treated as for a continuance.
The record indicates that prior to trial the appellant filed a motion requesting an investigation of his sanity at the time of the offense and at the time of trial. The trial court granted the request, ordering that the appellant be sent to Taylor Hardin Secure Medical Facility, until he was determined to be competent to stand trial. The trial court also requested that the appellant's mental competency at the time of the offense be evaluated. A forensic evaluation report from Taylor Hardin Secure Medical Facility indicates that the appellant was determined competent to stand trial and was therefore returned for the disposition of his case. Thereafter, defense counsel filed a motion for psychiatric assistance, requesting funds to retain psychiatric and psychological experts of the appellant's choosing to aid in his defense and to determine whether the appellant was competent at the time of the offense and at the time of trial. Based on the report from Taylor Hardin, the trial court determined that the appellant was competent to stand trial. The report from Taylor Hardin indicated that the appellant was able to appreciate the wrongfulness of his behavior at the time of the offense. The report also indicated that the appellant was probably intoxicated at the time of the offense.
Prior to trial, a hearing was held on another motion by the defense requesting psychiatric assistance for trial. During the hearing, defense counsel noted that the appellant had been committed to and released from Greil Hospital prior to the offense. Defense counsel argued that, because there were apparently discrepancies between a report prepared by the psychiatrist who had treated the appellant at Greil and the Taylor Hardin report, a psychiatrist was needed to assist in examining these reports. During the hearing, the trial court indicated that it had examined the reports from both of these facilities. The trial court stated that the Greil report did not express any opinion as to the appellant's sanity at the time of the offense. The appellant's motion for psychiatric assistance was denied at trial. Defense counsel then requested that the appellant's records from Greil Hospital and Taylor Hardin Secure Medical Facility be admitted into evidence. The prosecutor responded that the report from Greil was an edited copy showing certain deletions. The prosecutor stated that he would not object to the admission of the entire report from Greil Hospital; however, he objected to the admission of this edited copy. The trial court ruled that unless the appellant and the State could agree, he would not admit any of the reports into evidence. Therefore, because the State insisted on the complete Greil report being admitted into evidence and defense counsel refused to allowed the complete report to be admitted into evidence, none of the appellant's medical reports were admitted into evidence. Defense counsel then made a motion asking for funds to depose witnesses, specifically the psychiatrists who had examined the appellant. The trial court treated the appellant's motion as a motion for continuance and denied the motion, stating that the case had been set for trial for some time, that defense counsel had had ample time to prepare for trial, and that the case had been previously tried and that trial had ended in a mistrial.
*62 The trial court's decision to refuse the appellant's request for funds to retain a psychiatrist to assist him at trial was proper. At the request of the appellant, he had been evaluated by the staff at Taylor Hardin Secure Medical Facility and determined to be competent to stand trial and to have been able to appreciate the criminality of his behavior at the time of the offense.
"A defendant does not have a right to a mental examination whenever he requests one. Robinson v. State, 428 So.2d 167 (Ala.Cr.App.1982), cert. denied, 428 So.2d 167 (Ala.1983). Absent such a right, the trial court is the proper screening agent as to requests for mental examination. Dutton v. State, 434 So.2d 853 (Ala.Cr.App.1983), and cases cited therein. The standard of review in this matter is whether the trial court abused its discretion by not requiring further evaluation of appellant's sanity. Stephenson v. State, 469 So.2d 1355 (Ala.Cr. App.), cert. denied, 469 So.2d 1355 (Ala. 1985); Beauregard v. State, 372 So.2d 37 (Ala.Cr.App.), cert. denied, 372 So.2d 44 (Ala.1979)."
Blevins v. State, 516 So.2d 914, 915 (Ala. Cr.App.1987).
Based on the records of the proceedings, the trial court properly examined and thoroughly screened the evidence pertaining to the appellant's request. We find no abuse of discretion in permitting no further evaluation of the appellant's sanity.
Although the appellant claims that the trial court erred in refusing to allow him to admit the Greil report and the Taylor Hardin report into evidence, defense counsel himself chose not to seek the admission of these reports, when he was informed that the full and complete reports would have to be admitted. "When one party puts into evidence part of a conversation, document, or transaction, the opposing party is entitled to introduce the whole of it. Logan v. State, 291 Ala. 497, 282 So.2d 898 (1973); Flournoy v. State, 34 Ala.App. 23, 37 So.2d 218 (1948); cert. denied, 251 Ala. 285, 37 So.2d 223 (1948); Bridges v. State, 26 Ala.App. 1, 152 So. 51 (1933); cert. denied, 228 Ala. 72, 152 So. 54 (1934), cert. denied, 292 U.S. 633, 54 S.Ct. 718, 78 L.Ed. 1487 (1934)." Pyles v. State, 448 So.2d 416, 420 (Ala.Cr.App.1983).
"[A]n opponent may effect the admission of the parts [of a unit of evidence] the proponent wishes to overlook, in order to explain or rebut adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced by his adversary. Numerous Alabama cases have held or said that an opponent may effect the admission of, or inquire into, other relevant parts of a communication, document, transcript, conversation, confession, transaction or subject, when a proponent has caused some other part to be admitted. This remains true even if the other parts would, if offered alone, have been subject to some evidentiary objection other than irrelevancy. The practice described in this paragraph has been called `the rule of completeness' or the principle of `entirety of parts.'"
Schroeder, Hoffman, Thigpen, Alabama Evidence (1987), § 1-6(a). See also McCormick, McCormick on Evidence § 56 (3d ed. 1984). Therefore the initial trial court did not abuse its discretion in ruling that if it permitted the appellant to introduce the edited reports the State could introduce the complete reports. Because the appellant then chose not to introduce the reports, he cannot on appeal complain that the reports should have been introduced. Garrett v. State, 580 So.2d 58 (Ala.Cr.App.1991); Lanza v. State, 579 So.2d 8 (Ala.Cr.App. 1990).
As to the appellant's motion requesting funds to take depositions of the psychiatrists who examined him, the trial court clearly treated the motion as a motion for a continuance. The appellant failed to advise the trial court if it was misconstruing the purpose of the motion. Cf. Fisher v. State, 587 So.2d 1027 (Ala.Cr. App.1991), cert. denied, 587 So.2d 1039 (Ala.1991). See also Ex parte Weaver, 530 So.2d 258 (Ala.1988). Based on the reasons enunciated by the trial court for denying this motion, we find no abuse of discretion *63 in the trial court's ruling. Ex parte Saranthus, 501 So.2d 1256 (Ala.1986).

II
The appellant argues that his motion to suppress the statement he made to police should have been granted, because, he argues, he lacked the mental capacity to have knowingly and intelligently waived his rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The record indicates that, prior to the admission of the appellant's statement, a hearing was held pursuant to the appellant's motion to suppress. During this hearing, the officer who took the appellant's statement testified that the appellant stated that he understood his rights and that he would be willing to make a statement without an attorney present. The officer testified that no one in his presence offered the appellant any reward or promises in order to obtain his statement, nor did anyone threaten the appellant. The appellant presented the testimony of his mother who stated that the appellant had encephalitis when he was 14 and was hospitalized as a result. She further testified that, following this illness, the appellant had always appeared to be "slow." She further testified on cross-examination that the appellant might have used drugs. Thereafter, the trial court denied the appellant's motion to suppress the statement, and the statement was admitted into evidence.
"The fact that a defendant may suffer from a mental impairment or low intelligence will not, without other evidence, render a confession involuntary. See Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 520, 93 L.Ed.2d 473 (1986); Singleton v. Thigpen, 847 F.2d 668 (11th Cir.1988); Whittle v. State, 518 So.2d 793 (Ala.Cr.App.1987); Holladay v. State, 549 So.2d 122 (Ala.Cr.App.1988), aff'd, 549 So.2d 135 (Ala.1989). The United States Supreme Court, in Connelly, 479 U.S. at 164, 107 S.Ct. at 520, 93 L.Ed.2d at 482, stated: `Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.'"
Baker v. State, 557 So.2d 851, 853 (Ala.Cr. App.1990).
Moreover, the evidence presented by the appellant concerning his alleged mental impairment constituted but one factor to be considered in the "knowingness" of the appellant's waiver of his Miranda rights and did not alone require the suppression of his statement.
"Moreover, a defendant's mental impairment, even if it exists, is merely one factor affecting the validity of his waiver of rights and the voluntariness of his confession. See generally Annot., 8 A.L.R. 4th 16 (1981). `While an accused's intelligence and literacy are important factors to be considered in determining whether he intelligently and voluntarily waived his constitutional rights and made a confession, weak intellect or illiteracy alone will not render a confession inadmissible.' Hobbs v. State, 401 So.2d 276, 282 (Ala.Cr.App.1981)."
Whittle v. State, 518 So.2d 793, 796-97 (Ala.Cr.App.1987). While an accused must be able to comprehend his right to remain silent and his right to an attorney before he can waive these rights, there is no indication in the record that the appellant was so mentally deficient that he could not understand those rights. See Garrett v. State, 369 So.2d 833, 836 (Ala.1979).

III
The appellant argues that his initial counsel on appeal was ineffective in that he failed to file any motions or briefs on appeal. In its brief on appeal, the State agrees with the appellant's argument, citing Mylar v. Alabama, 671 F.2d 1299 (11th Cir.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983). The State further argues that as the court in Mylar v. Alabama explained, a defendant's remedy in such a situation is to seek an out-of-time appeal. Mylar v. Alabama, at 1302. In the present case, the appellant sought and was granted an out-of-time appeal. Therefore, any consideration of the *64 ineffectiveness of the appellant's initial counsel on appeal is purely academic and is moot. See Taylor v. State, 285 Ala. 236, 231 So.2d 109 (1970). Because this court does not ordinarily consider such matters, the effectiveness of the appellant's initial counsel will not be discussed, and the decision of the trial court to grant the appellant an out-of-time appeal was proper.
AFFIRMED.
All Judges concur.