TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00128-CV

Gilbert Gomez, Appellant

v.

Texas Education Agency, Educator Certification and Standards Division,
and Robert Scott, Commissioner of Education, in his Official Capacity, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-09-000309, HONORABLE GISELA D. TRIANA-DOYAL, JUDGE PRESIDING

O P I N I O N

		Gilbert Gomez appeals the district court's judgment affirming the final order of the State
Board for Educator Certification (the Board), which revoked his Texas Educator Certificate. (1)  The
Board ordered the certificate revocation after determining that Gomez was "unworthy to instruct or
supervise the youth of the state" under its rules.  In three issues, Gomez contends that the district court
erred by affirming the Board's final order.  We will affirm the district court's judgment because we find
no error in the Board's final order.

STATEMENT OF FACTS
		On August 7, 2003, Sergeant Joe Cavazos, an officer for the Texas Alcoholic Beverage
Commission, was conducting an inspection at a bar in McAllen, Texas, known as Graham Central
Station. (2)  Around midnight, a female patron approached Sergeant Cavazos to report that she had
observed a male standing by the dance floor with his penis outside his pants.  When Sergeant Cavazos
approached the dance floor, he saw a male about ten to fifteen feet from the dance floor holding
his penis in his hand and staring at the dancers as he rubbed himself.  Sergeant Cavazos immediately
grabbed the male and took him outside the nightclub.  When Sergeant Cavazos approached him to take
him outside, the male said "wait, wait" and tried to zip his pants up.  Sergeant Cavazos identified the
male as Gomez because Gomez provided his Texas driver's license to Sergeant Cavazos.  As a result
of this incident, Gomez was arrested and charged with indecent exposure.  Sometime later, the charges
were dismissed.  Gomez was never convicted of a crime and his arrest records were later expunged.
		Gomez held an active Texas Educator Certification at the time of the incident and was
employed by Donna Independent School District during the 2003-2004 school year.  In October 2006,
the Board filed a petition against Gomez with the State Office of Administrative Hearings (SOAH),
alleging that Gomez's conduct at the nightclub indicated that "he is a person unworthy to instruct
or supervise the youth of the State of Texas" and seeking the permanent revocation of his
educator certificate.  See 19 Tex. Admin. Code § 249.15 (2011) (State Bd. for Educator Certification,
Disciplinary Action by State Bd. for Educator Certification). (3)  The case went to an administrative law
judge (ALJ) for a contested-case hearing.  Before the hearing, Gomez filed a motion for no-evidence
summary disposition, arguing that because his arrest record had been expunged, the Board could
not produce any evidence in support of its claim because the expunction order and the code of
criminal procedure prohibited the Board from using any records or files concerning Gomez's arrest.
See Tex. Code Crim. Proc. Ann. § 55.03 (West 2006).  The Board responded that Sergeant Cavazos
was an eyewitness and that his testimony about the incident was not prohibited, only the use of any
arrest records.  The ALJ denied Gomez's motion, but noted that "the ALJ will not allow any witness
to testify at the hearing based on expunged records as opposed to the witness's independent recollection
of events."
		The ALJ conducted a one-day evidentiary hearing.  At the contested-case hearing, Gomez
sought a ruling on his motion to exclude Sergeant Cavazos's testimony, urging that the testimony
would be derived from the expunged arrest record.  The Board opposed the motion to exclude evidence,
asserting that Sergeant Cavazos's testimony would be based on his memory as an eyewitness to the
incident.  The ALJ allowed Sergeant Cavazos to testify on the record, but did not admit his testimony
into the record until after the hearing's conclusion.  In the order overruling Gomez's motion to exclude
evidence that was issued after the hearing, the ALJ noted that Sergeant Cavazos testified that he had
not refreshed his memory from the arrest record or any other record subject to the expunction order.
		During the hearing, the Board offered Sergeant Cavazos's testimony, and Gomez offered
his own testimony, along with that of two character witnesses, both educators who had worked in the
Donna Independent School District for many years.  Gomez testified that he did not expose himself,
but admitted that he was at Graham Central Station on August 7, 2003, and was escorted out of
the nightclub by a security person.  Sergeant Cavazos testified to his recollection of the incident as
described above, but upon cross-examination, he admitted that he had been able to recall the date
of the incident and Gomez's name only after refreshing his memory by reviewing the Board's petition.
		After the record was closed, the ALJ issued a proposal for decision (PFD) that included
eleven findings of fact and fifteen conclusions of law.  The ALJ concluded that two stated purposes of
the Board's rules are to insure that educators are morally fit and worthy to instruct or supervise the
youth of the state and to enforce the educators' ethics code.  See 19 Tex. Admin. Code § 249.5 (2011)
(State Bd. for Educator Certification, Purpose).  The ALJ found that Gomez engaged in the alleged
conduct and "exposed his penis in public with reckless disregard as to whether others could see it and
for purposes of sexual gratification."  The ALJ concluded that Gomez's conduct was an act of moral
turpitude, as defined by the Board's rules, and that an act of moral turpitude can preclude a finding of
good moral character, as defined by the Board's rules.  See 19 Tex. Admin. Code § 249.3(19), (25)
(2007), amended 34 Tex. Reg. 3944 (2009), amended 35 Tex. Reg. 11249 (2010) (State Bd. for
Educator Certification, Definitions). (4)  The ALJ concluded, however, that the Board did not have a basis
to impose discipline against Gomez's educator certificate, because she interpreted the Board's definition
 of "unworthy to instruct or to supervise the youth of this state" as including only conduct that violated
chapter 21, subchapter B of the education code, which governs the certification of educators in the
public education system.  See id. § 249.3(45) (2007) (State Bd. for Educator Certification, Definitions)
(defining "unworthy to instruct" as "the determination that a person is unfit to hold a certificate under
the [Texas Education Code], Chapter 21, Subchapter B"); see also generally Tex. Educ. Code Ann.
§§ 21.001-.707 (West 2006 & Supp. 2010).  Under the ALJ's interpretation, before the Board could
revoke an educator certificate, the educator would have to have been convicted of one of the crimes listed
in two code provisions; Gomez had not been convicted of a crime.  See Tex. Educ. Code Ann. §§ 21.058
(West 2006) (requiring Board to revoke educator certificate held by person convicted of certain
criminal offenses), .060 (West Supp. 2010) (allowing Board to revoke educator certificate if person has
been convicted of certain felony or misdemeanor offenses related to duties and responsibilities of
education profession).
		In its final decision and order, the Board adopted the ALJ's findings of fact in their
entirety and adopted all but two of the ALJ's conclusions of law (numbers 10 and 15).  The Board
rejected these two conclusions of law because it concluded the ALJ did not properly apply or interpret
applicable law, the agency's rules, and prior administrative decisions.  See Tex. Gov't Code Ann.
§ 2001.058(e)(1) (West 2008) (providing that agency may change ALJ's finding of fact or conclusion
of law or may vacate or modify order issued by ALJ if agency determines that ALJ "did not properly
apply or interpret applicable law, agency rules, . . . or prior administrative decisions").  In their place,
the Board adopted two new conclusions of law.  The first stated that Gomez's conduct described in
findings of fact numbers 6 and 7 "establishes that [Gomez] is unworthy to instruct or supervise the
youth of the state." (5)  The second stated that Gomez's educator certificate should be revoked. (6) See
19 Tex. Admin. Code § 249.15(b)(2) (allowing Board to revoke certificate based on satisfactory
evidence that person is unworthy to instruct).  Consequently, the Board ordered Gomez's educator
certificate revoked.
		Gomez sought judicial review of the Board's order in district court.  After a hearing on
the merits, the district court affirmed the Board's final decision and order.  This appeal followed.

DISCUSSION
		Gomez asserts that the district court erred by affirming the Board's final order for three
reasons.  Gomez first argues that the Board acted in excess of its statutory authority, in an arbitrary or
capricious manner, and abused its discretion by rejecting the ALJ's recommendation and revoking his
educator certificate, despite having no basis to impose discipline against him.  In his second issue,
Gomez contends that Sergeant Cavazos's testimony should have been excluded because its admission
violated the expunction order.  Gomez asserts in his third issue that the district court erred by denying
his motion for leave to present additional evidence to the Board.

Standard of review
		The substantial-evidence standard of the Texas Administrative Procedure Act (APA)
governs our review of the Board's final order.  See Tex. Gov't Code Ann. § 2001.174 (West 2008).
The APA requires us to reverse or remand an agency's decision that prejudices the appellant's
substantial rights because the administrative findings, inferences, conclusions, or decisions (1) violate
a constitutional or statutory provision, (2) exceed the agency's statutory authority, (3) were made
through unlawful procedure, (4) are affected by other error of law, (5) are not reasonably supported by
substantial evidence considering the reliable and probative evidence in the record as a whole, or (6) are
arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.  Id. § 2001.174(2)(A)-(F).  An agency acts arbitrarily if it makes a decision without regard
for the facts, if it relies on fact findings that are not supported by any evidence, or if there does not
appear to be a rational connection between the facts and the decision.  See City of Waco v. Texas
Comm'n on Envtl. Quality, 346 S.W.3d 781, 819-20 (Tex. App.--Austin 2011, pet. filed).  In other
words, we must remand for arbitrariness if we conclude that the agency has not "'genuinely engaged in
reasoned decision-making.'"  Id. (quoting Starr Cnty. v. Starr Indus. Servs., Inc., 584 S.W.2d 352, 356
(Tex. Civ. App.--Austin 1979, writ ref'd n.r.e.)).  Otherwise, we may affirm the administrative decision
if we are satisfied that "substantial evidence" exists to support it.  Tex. Gov't Code Ann. § 2001.174(1).
		The Legislature has charged the Board with regulating the certification process and
standards of conduct for educators and has given it broad discretion to adopt rules for disciplining
educators.  See Tex. Educ. Code Ann. §§ 21.031 (West 2006), .041 (West Supp. 2010).  When there
is vagueness, ambiguity, or room for policy determinations in a statute or regulation, we generally
defer to the agency's interpretation unless it is "plainly erroneous or inconsistent with the language
of the statute, regulation, or rule."  TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438
(Tex. 2011).  But this deference to the Board's interpretation is not conclusive or unlimited--we defer
only to the extent that the Board's interpretation is reasonable.  See id.  We construe administrative rules
in the same manner as statutes, using traditional principles of statutory construction.  Id.
		When we construe administrative rules and statutes, our primary objective is to give
effect to the intent of the issuing agency and legislature, "which, when possible, we discern from the
plain meaning of the words chosen."  State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (addressing
statutory construction); see Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex. 1999)
(addressing rule construction).  We consider statutes and rules as a whole rather than their isolated
provisions.  TGS-NOPEC, 340 S.W.3d at 438-39.  We presume that the legislature chooses a statute's
language with care, purposefully choosing each word it includes, while purposefully omitting words not
chosen.  Id.  We may consider other factors in ascertaining legislative or administrative intent, including
the law's objective, its history, and the "common law or former statutory provisions" concerning the
same or similar subjects.  Tex. Gov't Code Ann. § 311.023(1), (3), (4) (West 2005); see also Shumake,
199 S.W.3d at 284.

Board's interpretation of "unworthy to instruct"
		Gomez's appeal centers on the Board's decision to (1) reject the ALJ's conclusion that
his conduct provided no basis for the Board to discipline him and (2) instead conclude that Gomez's
conduct at the nightclub established that he is "unworthy to instruct" and that his educator certificate
should be revoked.  As defined by title 19, section 249.3(45) of the administrative code, "unworthy to
instruct or to supervise the youth of this state" means "the determination that a person is unfit to hold
a certificate under the [Texas Education Code], Chapter 21, Subchapter B . . . ."  Gomez urges that the
ALJ's interpretation of the education code and the definition of "unworthy to instruct"--which would
require that an educator be convicted of one of the crimes listed in two code provisions before his
certificate could be revoked--is correct, and thus, the Board acted in excess of its statutory authority,
in an arbitrary or capricious manner, and abused its discretion because it rejected the ALJ's conclusion.
		Contrary to Gomez's contention, the APA specifically authorizes the Board to:

	change a finding of fact or conclusion of law made by the [ALJ], or [to] vacate or modify
an order issued by the [ALJ], only if the agency determines . . . that the [ALJ] did not
properly apply or interpret applicable law, agency rules, . . . or prior administrative
decisions . . . . The agency shall state in writing the specific reason and legal basis for
a change made under this subsection.

Tex. Gov't Code Ann. § 2001.058(e); see also 19 Tex. Admin. Code § 249.39 (2011) (State Bd. for
Educator Certification, Final Decisions and Orders) (memorializing Board's ability to adopt order
modifying findings of fact or conclusions of law in PFD submitted by ALJ in accordance with APA).
The Board complied with section 2001.058(e) by explaining in its final order the reasons and legal
basis for its rejection of the ALJ's conclusions.  In the order, the Board explained that it interprets the
phrase "the determination that a person is unfit to hold a certificate under the [Texas Education Code],
Chapter 21, Subchapter B" as merely referring to the certification that the person is unworthy to hold,
not as requiring a finding that the person violated chapter 21, subchapter B.  The Board found that the
ALJ did not properly interpret the definition of "unworthy to instruct" because her recommendation
was inconsistent with prior administrative decisions, which did not require the Board to identify a
subchapter B violation (i.e., an enumerated criminal conviction) to make an "unworthy to instruct"
determination, and with applicable case law interpreting the meaning of "unworthy to instruct."  See
Marrs v. Matthews, 270 S.W. 586, 588 (Tex. Civ. App.--Texarkana 1925, writ ref'd) (holding
legislature's intent in providing authority to revoke certificate of educator found "unworthy to instruct"
was to exclude educators found morally unfit).  Following its own interpretation of the statute and its
rules, the Board determined that the ALJ's conclusions that Gomez's conduct was an act of "moral
turpitude" sufficient to preclude a finding of "good moral character" (as those terms are defined by
the Board's rules) provided a sufficient basis to conclude that Gomez was "unworthy to instruct."  See
19 Tex. Admin. Code §§ 249.3(19), (25), (45), .15.
		The Board's interpretation of the definition of "unworthy to instruct" is at the heart of the
parties' dispute.  The phrase "unfit to hold a certificate under the [Texas Education Code], Chapter 21,
Subchapter B" is ambiguous and leaves room for policy determinations by the Board about the interplay
between the "unworthy to instruct" definition and chapter 21, subchapter B of the education code.
Therefore, the question before us is not whether the ALJ's interpretation of the definition and the statute
is reasonable; it is whether the Board's interpretation is reasonable and does not contradict the plain
language of either the rule or the statute.  See Dodd v. Meno, 870 S.W.2d 4, 7 (Tex. 1994); see also
Poole v. Karnack Indep. Sch. Dist., 344 S.W.3d 440, 444 (Tex. App.--Austin 2011, no pet.) (finding
agency's interpretation of statute reasonable when statute did not impose deadline for requesting assault
leave and agency required leave request to be made within reasonable time of alleged assault).
		The Board noted in its final order that the "unworthy to instruct" phrase has been part
of educator-certification law since 1925.  See Marrs, 270 S.W. at 588.  In Marrs, the court considered
whether the term "unworthy to instruct" was too vague to define a disqualification to hold a teacher's
certificate and determined that it was not.  Id.  The court stated that "unworthy" in this context means
"the absence of those moral and mental qualities which are required to enable one to render the
service essential to the accomplishment of the object which the law has in view" and imputes "moral
delinquency to a degree of unfitness for the work at hand."  Id.  The court noted that while differences
of opinion might exist about what qualities of character render someone unworthy to instruct, there can
be no disagreement that an unworthy person should not be allowed to teach.  Id.  The court concluded
that the legislature necessarily left the unworthiness determination to the Board because it would be too
difficult to enumerate those qualities and would render the statute "incomplete, or so inflexible as to
defeat the ends sought."  Id.
		A review of the education code's relevant parts and the history of the rule's definition
of "unworthy to instruct" shows that the Board's interpretation is reasonable.  Title 2, subtitle D,
chapter 21 of the education code regulates educators in the public education system.  See generally
Tex. Educ. Code Ann. §§ 21.001-.707.  In subchapter A, the education code provides that "[a] person
may not be employed as a teacher . . . by a school district unless the person holds an appropriate
certificate or permit issued as provided by Subchapter B."  Id. § 21.003(a) (West Supp. 2010).
Subchapter B of chapter 21 concerns the certification of educators and establishes the Board's structure,
powers, and duties, including its mandate to propose rules providing "for the regulation of educators and
the general administration of this subchapter," "for disciplinary proceedings, including the suspension
or revocation of an educator certificate, as provided by Chapter 2001, Government Code," and "for the
adoption, amendment, and enforcement of an educator's code of ethics."  Id. §§ 21.031, .033, .040
(West 2006), .041(b)(1), (7), (8); see generally id. §§ 21.031-.060.  Nothing in subchapter B limits the
Board's authority to revoke a certificate or find that a person is "unworthy to instruct" to only a situation
in which the person has been convicted of the offenses listed in sections 21.058 and 21.060.  Limiting
the Board's authority in this manner would render superfluous the provision mandating that the
Board propose rules for revoking an educator certificate. (7) See Tex. Gov't Code Ann. § 311.021(2)
(West 2005) (presumption is that entire statute is intended to be effective).
		In addition, the Board adopted the definition of "unworthy to instruct" before the adoption
of education code sections 21.058 and 21.060, which were enacted and became effective in 2003 and
2007, respectively.  When it adopted chapter 249 of the administrative code in 1999, the Board provided
a detailed explanation for the definition of "unworthy to instruct."  See 24 Tex. Reg. 2305 (1999)
(Executive Summary for Reasoned Justification of New Chapter 249).  In its justification for the definition
of "unworthy to instruct," the Board explained that it derived the term from the former education code
section related to the suspension and cancellation of a teacher's certificate.  24 Tex. Reg. 2308 (1999);
see also Tex. Gov't Code Ann. § 311.023(4).  It further explained that because the former code did not
define the term, the Board chose its meaning based on the term's application in prior disciplinary
decisions by the commissioner of education.  24 Tex. Reg. 2308 (1999); see also Tex. Gov't Code Ann.
§ 311.023(6) (administrative construction of statute may be considered).  Finally, the Board specifically
noted the court's holding in Marrs that "the Legislature's controlling purpose in authorizing a teacher's
certificate to be sanctioned for 'unworthiness' was to exclude 'teachers who were found to be morally
or mentally unfit.'"  24 Tex. Reg. 2308 (1999) (quoting Marrs, 270 S.W. at 588).
		Under the Board's interpretation, engaging in conduct that rises to the level of indecent
exposure is conduct that renders a person "unworthy to instruct." (8)  The ALJ made findings of fact that
Sergeant Cavazos saw Gomez rubbing his exposed penis with his hand near the dance floor and that
Gomez engaged in this public conduct with reckless disregard for whether others could see it and for
purposes of sexual gratification.  These fact findings provided a sufficient basis for the ALJ's legal
conclusion that Gomez's conduct was an act of moral turpitude, which is defined in part as "base, vile, or
depraved acts that are intended to arouse or to gratify the sexual desire of the actor."  19 Tex. Admin. Code
§ 249.3(25) (2007).  In turn, the conclusion that Gomez's conduct was an act of moral turpitude supports
the ALJ's legal conclusion that an act of moral turpitude can preclude a finding of "good moral
character," which is defined as "the virtues of a person as evidenced, at a minimum, by his or her not
having committed crimes relating directly to the duties and responsibilities of the education
profession . . . or acts involving moral turpitude."  Id. § 249.3(19) (2007) (emphases added).  A person
who is not found to have "good moral character" fits the Marrs definition of "unworthy to instruct"
because the person is "morally . . . unfit."  270 S.W. at 588.  Thus, there was satisfactory evidence for
the Board to conclude that Gomez is "unworthy to instruct" the youth of Texas under its interpretation
of that term. (9) See id. § 249.15(b)(2).
		When we consider the purpose of the overall statutory scheme for regulating educators,
the history of rule 249.3, and the common law and former statutory provisions predating the rule,
we conclude that the Board's interpretation of "unworthy to instruct" as encompassing indecent
exposure--even without a criminal conviction--is reasonable.  Furthermore, the Board's interpretation
that the phrase "under the [Texas Education Code], Chapter 21, Subchapter B" modifies the certificate
that the person is being found unfit to hold does not contradict the plain language of the rule or the
statute.  Consequently, we will defer to the Board's interpretation of the rule.  We overrule Gomez's first
issue. (10)

Admission of eyewitness testimony
		In his second issue, Gomez challenges the admission of Sergeant Cavazos's testimony
at the December 2007 contested-case hearing because he contends that its admission violated the June
2007 order expunging records concerning his August 2003 arrest.  Gomez argues that the expunction
statute precludes a person who acquires knowledge of an arrest while a state employee and who knows
of an order expunging the records and files relating to that arrest from disseminating or using the records
or files.  See Tex. Code Crim. Proc. art. 55.04 (West 2006).  The Board responds that the expunction
order only barred the use of records and files concerning Gomez's arrest, not eyewitness testimony about
his conduct, and that it did not use prohibited materials to prepare or present its case to the ALJ.
		We review rulings on the admission or exclusion of evidence at the administrative level
under the abuse-of-discretion standard applied to trial courts.  City of Amarillo v. Railroad Comm'n of Tex.,
894 S.W.2d 491, 495 (Tex. App.--Austin 1995, writ denied).  A court abuses its discretion if it acts
without reference to guiding rules and principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241-42 (Tex. 1985).  We must uphold the ALJ's evidentiary ruling if there is any legitimate basis in the
record to support it.  See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
		The Board filed its petition in October 2006.  The expunction order was issued in June
2007, expunging any and all records "concerning the arrest on August 7, 2003."  The order provided that
a number of agencies, including the Board, were to "return all records and files concerning the arrest
to the court, or if removal is impracticable, to obliterate all references to [Gomez] and notify the court
of [their] action[s]."  The Board's petition mentioned Sergeant Cavazos by name, but did not mention
that Gomez had been arrested.  The petition also asserted essentially the same description of the incident
to which Sergeant Cavazos testified at the hearing.  Thus, it is clear from the record that before filing
the petition the Board's staff had talked to Sergeant Cavazos as part of its investigation of the incident.
		As the ALJ pointed out in the order denying Gomez's motion to exclude evidence,
Sergeant Cavazos testified at the hearing that he had not refreshed his memory from any record subject
to the expunction order, and he obeyed the ALJ's admonition not to mention any fact relating to an
arrest.  Sergeant Cavazos testified that although he could recall the date of the incident and Gomez's
name only after reviewing the Board's petition, the petition was the only document he used to refresh
his memory. The remainder of his testimony was based only on his memory of the incident.  The ALJ
made a specific finding of fact in the PFD that "Cavazos did not use any document other than those
filed in this docket to refresh his memory as to the date of the incident and [Gomez's] name" when
preparing to testify at the hearing.  Gomez has not pointed out any testimony which he asserts that
Sergeant Cavazos derived from any expunged record.
		As several of our sister courts have observed, "the legislature's intent in enacting the
expunction statute was not to eradicate all evidence of the conduct underlying the expunged arrest."
Ex parte S.C., 305 S.W.3d 258, 266 (Tex. App.--Houston [14th Dist.] 2009, no pet.) (construing scope
of expunction statute and concluding that expunction order was broader than authorized by statute
because order included state agency's investigation records).  When considering whether to allow
Sergeant Cavazos's testimony about Gomez's conduct in this case, the ALJ relied on the holding of the
Fourth Court of Appeals in a similar case in which an appellant argued that expunction precluded
the agency's findings about conduct that served as the basis for her employment termination.  See
Bustamante v. Bexar Cnty. Sheriff's Civil Serv. Comm'n,  27 S.W.3d 50, 53 (Tex. App.--San Antonio
2000, no pet.).  In Bustamante, the court held that the appellant's termination was proper because
the agency relied on eyewitness testimony about witnesses' personal observations of the
appellant's conduct, not on expunged records or files.  Id. at 53-54.  We reach the same conclusion here
about the Board's revocation of Gomez's certificate.  The ALJ did not abuse her discretion by allowing
Sergeant Cavazos's eyewitness testimony.  We overrule Gomez's second issue.

Motion for leave to present additional evidence to the Board
		Gomez argues in his third issue that the district court erred by denying his motion
for leave to present additional evidence to the Board. (11) See Tex. Gov't Code Ann. § 2001.175(c)
(West 2008) (providing procedure for application to reviewing court to present additional evidence to
state agency).  He also contends that the district court could properly consider evidence outside of the
administrative record of the "procedural irregularities" that he alleges occurred when the ALJ admitted
evidence that had been ordered expunged.  See id. § 2001.175(e) (West 2008).  Section 2001.175(c)
authorizes a reviewing court to remand a case to allow additional evidence to be presented to the agency,
but only if the court is satisfied that (1) the evidence is material and (2) there were good reasons for the
failure to present it in the proceeding before the agency.  Id. § 2001.175(c).  We review the district
court's decision about a remand request for an abuse of discretion.  See Texas Dep't of Pub. Safety v.
Story, 115 S.W.3d 588, 594 (Tex. App.--Waco 2003, no pet.); City of Port Arthur v. Southwestern Bell
Tel. Co., 13 S.W.3d 841, 844 (Tex. App.--Austin 2000, no pet.).
		Gomez sought to present evidence to the Board of a November 2009 order, which was
entered by the same Hidalgo County District Court that had entered the 2007 expunction order.  In the
November 2009 order, the Hidalgo County District Court determined that the Texas Education Agency
(TEA) had not complied with the 2007 expunction order and ordered TEA to return "all records and
files concerning the arrest of [Gomez] to the Court."  The order reflects that TEA turned over its records
at the November 2009 Hidalgo County District Court hearing.  Nothing in the November 2009 order
indicates that the Hidalgo County District Court found that Sergeant Cavazos's testimony at Gomez's
contested-case hearing violated its 2007 expunction order.
		Gomez is correct that the district court could have considered evidence outside the
record had he alleged that a procedural irregularity not reflected in the agency record occurred in
the agency proceedings.  See Tex. Gov't Code Ann. § 2001.175(e).  Gomez has failed to allege this
type of procedural irregularity here, however, contending instead that a procedural irregularity
occurred when the ALJ admitted evidence that had been ordered expunged--presumably referring to
Sergeant Cavazos's testimony.  The ALJ's admission of Sergeant Cavazos's testimony is a matter fully
documented within the agency record; thus, the district court properly did not consider evidence outside
the record when reviewing the Board's decision.
		In addition, the district court acted within its discretion by declining to remand this case
to the Board to enable Gomez to present the November 2009 order to it.  Gomez failed to satisfy at least
one of the conditions required for remand because he did not explain in his motion how the additional
evidence (the November 2009 order) is material.  See id. § 2001.175(c).  Gomez's argument that the
Board used expunged records rests on his contention that Sergeant Cavazos's testimony was improper
because he acquired knowledge of the arrest while a state employee and knew of the expunction order.
But as we determined above, the Board could properly present Sergeant Cavazos's testimony because
it was based on his personal knowledge of the incident.  See Bustamante, 27 S.W.3d at 53-54.  Gomez
has never identified any specific evidence relied upon by the Board that he asserts came solely from the
expunged records (as opposed to being contained in the Board's own investigation records). (12)  We have
upheld the ALJ's finding that Sergeant Cavazos did not rely on expunged records to refresh his memory.
Without a showing that the Board actually used the expunged records, the Board's retention of the
expunged records is immaterial. (13)  We overrule Gomez's third issue.

CONCLUSION
		Having overruled all of Gomez's issues on appeal, we affirm the district
court's judgment.

						__________________________________________
						Diane M. Henson, Justice
Before Chief Justice Jones, Justices Henson and Goodwin
Affirmed
Filed:   November 23, 2011
1.   Gomez styled his suit for judicial review and this appeal as "Gilbert Gomez v. Texas
Education Agency and Robert Scott, Commissioner of Education, in his Official Capacity," but the
Texas Education Agency (TEA) asserts that Mr. Scott is not a proper party because the Board, not
the TEA, rendered the final order in this case.  TEA staff provides administrative functions and
services to the Board, see Tex. Educ. Code Ann. § 21.035 (West Supp. 2010), but the TEA did not
revoke Gomez's educator certificate.
2.  The facts recited herein are taken from the testimony and exhibits admitted at the contested-case hearing.
3.   Since Gomez's contested-case hearing occurred, the Board has amended this rule and some
other rules to which we will refer.  When there has been no substantive change to the rule or its
relevant portions, as with this rule, we will refer to the current rules for convenience.  We will cite
to the prior rule when a substantive amendment has occurred.
4.   Gomez's contested-case hearing was held before the ALJ on December 6, 2007.  The ALJ
issued the PFD on February 14, 2008.  The Board had proposed amendments to the rules earlier in
2007, and the amended rules became effective December 16, 2007.  See 32 Tex. Reg. 9112 (2007)
(to be codified at 19 Tex. Admin. Code § 249.3) (proposed August 31, 2007) (State Bd. for Educator
Certification).  The definitions of "good moral character," "moral turpitude," and "unworthy to
instruct" were not substantively changed by this amendment, but they were renumbered.  See 32 Tex.
Reg. 5608 (2007), adopted 32 Tex. Reg. 9112 (2007).  Throughout this opinion, we refer to section
249.3 as amended effective December 16, 2007 to conform with the ALJ's references in the PFD.
5.   Finding of fact number 6 states that "[w]hen he approached the dance floor, Sgt. Cavazos
saw [Gomez] rubbing on his exposed penis with his hand."  Finding of fact number 7 states that
"[o]n August 3, 2003, [Gomez] exposed his penis in public with reckless disregard as to whether
others could see it and for purposes of sexual gratification."
6.   The Board also sought to revoke Gomez's certificate on the grounds that his conduct
demonstrated that he "is a person who conducted school or education activities in violation of law"
and had "violated provisions of the educator's code of ethics, including . . . Standard 1.7 (failing to
comply with state regulations, written local school board policies, and other applicable state and
federal laws)."  See 19 Tex. Admin. Code § 249.15 (2011) (State Bd. for Educator Certification,
Disciplinary Action by State Bd. for Educator Certification).  The ALJ found that Gomez's conduct
"did not involve: a student or minor; school activities or property; controlled substances; professional
advancement; or other educators, nor did it result in a criminal conviction or adjudication of guilt
under criminal law."  She also concluded that the Board "failed to show that Respondent's conduct
violated a state regulation or written local school board policy" and that neither the Board nor SOAH
had jurisdiction to decide whether Gomez's conduct violated the only pertinent state or federal law,
penal code section 42.01(10).  See Tex. Penal Code Ann. § 42.01(10) (West 2011) (reckless
exposure of anus or genitals in public place).  The Board adopted this finding and these conclusions
in its final decision and order.
7.   Gomez argues that if the legislature had intended to adopt the definition of "unworthy to
instruct" contained in Marrs, there would have been no need to pass sections 21.058 and 21.060 of
the education code.  But the legislature's provision of certain minimum standards does not show that
it intended those sections to be the only grounds for the Board to find that an educator is unworthy
to instruct and revoke his certificate.  Section 21.058 provides for mandatory certificate revocation
within five days of when the Board receives notice that a person has been convicted of a felony
offense under title 5 of the penal code or an offense that requires the defendant to register as a sex
offender under chapter 62 of the code of criminal procedure, and the victim of the offense is under
18 years of age.  Tex. Educ. Code Ann. § 21.058(a) (West 2006); see also Tex. Penal Code Ann.
§§ 19.01-22.12 (West 2011) (establishing offenses against the person, including criminal homicide,
kidnapping, trafficking of persons, sexual offenses, and assaultive persons); Tex. Code Crim. Proc.
Ann. arts. 62.001-.408 (West 2006 & Supp. 2010) (establishing sex offender registration program).
Under these circumstances, certificate revocation is mandatory, "[n]otwithstanding Section
21.041(b)(7)," which establishes that the Board must provide for disciplinary proceedings to revoke
a certificate.  Id. § 21.058(b).  Section 21.060 provides the Board with authority to revoke the
certificate of a person who has been convicted of certain felony or misdemeanor offenses "relating
to the duties and responsibilities of the education profession, including" but not limited to the
list provided in the statute.  Id. § 21.060 (West Supp. 2010).  By providing the Board with a
nonexclusive list of offenses for which it has discretionary authority to revoke a certificate after an
educator's conviction and mandating it to revoke a certificate without a disciplinary proceeding after
certain other convictions, the legislature merely simplified the disciplinary process in certain cases.
8.   The Board's rules regarding investigations provide further support for the Board's
interpreting "unworthy to instruct" as encompassing acts of moral turpitude even without an
accompanying criminal conviction.  Section 249.14 provides that the TEA staff, which provides
administrative support to the Board, may set priorities for the investigation of complaints based on
the severity and immediacy of the allegations and the likelihood of harm.  19 Tex. Admin. Code
§ 249.14(g) (2011) (State Bd. for Educator Certification, Complaint, Required Reporting, and
Investigation; Investigative Notice; Filing of Petition).  All cases accepted for investigation must be
placed in one of two priority groups.  Id.  Indecent exposure has been included in the "Priority 1"
category of "conduct that indicates a risk to the health, safety, or welfare of a student or minor,
parent of a student, fellow employee, or professional colleague" since section 249.14's adoption in
1999.  Id.
9.   Gomez has not presented an issue challenging whether substantial evidence supports the
Board's decision to revoke his certificate.  Compare Tex. Gov't Code Ann. § 2001.174(2)(E) with
id. § 2001.174(2)(F); see City of Waco v. Texas Comm'n on Envtl. Quality, 346 S.W.3d 781, 818
n.20 (Tex. App.--Austin 2011, pet. filed) (noting difference between term "substantial-evidence
review" being used in broad sense as shorthand reference to entire scope of review under APA and
in narrower sense meaning only determination of whether order is reasonably supported by
substantial evidence considering reliable and probative evidence in whole record).  To the extent his
argument that the Board had no basis for imposing discipline against him could be construed as a
substantial-evidence argument (in the narrower sense of the term), we presume that the Board's order
is supported by substantial evidence, and Gomez bears the burden of proving otherwise.  See Texas
Health Facilities Comm'n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 453 (Tex. 1984).  At the
contested-case hearing, Gomez offered no evidence that he did not engage in the alleged conduct
other than his own testimony, which was controverted by Sergeant Cavazos's testimony.  The ALJ,
as factfinder, determines the credibility of witnesses and the weight of their testimony.  Granek v.
Texas State Bd. of Med. Exam'rs, 172 S.W.3d 761, 778 (Tex. App.--Austin 2005, no pet.).  If there
is some reasonable basis in the record for the Board's decision, we will uphold it even if the evidence
preponderates against it.  Charter Med., 665 S.W.2d at 452.  Thus, if the evidence would support
either affirmative or negative findings, we must uphold the Board's decision.  Id. at 453.  We
conclude that substantial evidence supports the Board's decision to revoke Gomez's certificate.
10.   The Board contends that Gomez waived the issue of whether the Board committed error
by rejecting the ALJ's recommendation that there was no basis to discipline him because he failed
to raise it in his petition to the district court for judicial review.  Gomez raised the issue of whether
the Board erred by finding a basis to impose discipline against him, but the Board contends this is
a different issue (although we note that the Board necessarily rejected the ALJ's recommendation
by finding a basis to impose discipline).  We will assume without deciding that Gomez preserved
error on the issue because we have concluded that the Board did not err by rejecting the ALJ's
recommendation and finding a basis to impose discipline against Gomez.
11.   The district court did not issue an order denying the motion, which Gomez filed on
November 30, 2009, six days after the court conducted the hearing on his petition for judicial review.
The final judgment affirming the Board's decision was signed December 3, 2009, and stated that "all
remedies not specifically granted herein are denied."
12.   Gomez asserts that if the Board had complied with the expunction order, it would not have
had Sergeant Cavazos's name.  But the Board had begun conducting its own investigation well
before the expunction order was issued in 2007.  It filed its petition, which contained Sergeant
Cavazos's name, in October 2006.  See Ex parte S.C., 305 S.W.3d 258, 266 (Tex. App.--Houston
[14th Dist.] 2009, no pet.) (holding expunction order compelling agency to turn over its own
investigative files and records, instead of only records relating to arrest, was overly broad).
13.   As the Board points out, it is also questionable whether Gomez could demonstrate that
there were good reasons for his failure to present the "additional evidence" in the proceeding before
the agency.  See Tex. Gov't Code Ann. § 2001.175(c) (West 2008).  While it is true that he did not
obtain the order until November 2009, the contested-case hearing occurred in December 2007.
Gomez did not explain in his motion what caused him to wait until November 2009 to seek an order
from the Hidalgo County District Court that the Board had violated the expunction order.  The Board
did not present any new evidence in the district-court proceeding for review of its final order.  And
at the contested-case hearing, as well as in his exceptions to the PFD and his motion for rehearing,
which he filed in March 2008 and November 2008, Gomez made the same contention that he makes
here about the Board's alleged violation of the expunction order.  He argued during the proceeding
before the Board that the Board would not have had Sergeant Cavazos's name and other details about
the incident if it had returned or destroyed all arrest records, so it is unclear why he waited until 2009
to seek an order from the Hidalgo County District Court that the Board violated the expunction
order.


J-S63011-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                  Appellee               :
                                         :
             v.                          :
                                         :
BRADLEY MOLCHANY,                        :
                                         :
                  Appellant              :    No. 72 EDA 2015

         Appeal from the Judgment of Sentence November 13, 2014,
                   Court of Common Pleas, Lehigh County,
             Criminal Division at No. CP-39-CR-0000957-2006

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED NOVEMBER 05, 2015

       Appellant, Bradley Molchany (“Molchany”), appeals from the judgment

of sentence entered on November 13, 2014 by the Court of Common Pleas

of Lehigh County, Criminal Division, following the revocation of his

probation. We affirm.

       On April 30, 2007, Molchany pled nolo contendere to aggravated

assault and indecent assault.1      At the time of Molchany’s plea, the

Commonwealth summarized the facts underlying the case as follows:

                Your Honor, if the victim, [H.S.], were here, she
             would testify that in June of 2000, she was twelve
             years old and she was left in the care of [Molchany]
             when her mother went on a two[-] week vacation to
             Florida. [Molchany] resided at that time at 6714
             Lower Macungie Road, Apartment D-4, in Lower
             Macungie Township, Lehigh County. She indicated
             that during this two[-]week period, she was sexually

1
    18 Pa.C.S.A. §§ 2702(a)(1), 3126(a)(7).
J-S63011-15

           assaulted by [Molchany] several times. She stated
           that during the first incident, [Molchany] forced her
           into a bedroom at knife point, he forced her to
           remove her clothing, tied her hands to her neck,
           taped her mouth with duct tape and the way her
           hands were tied, any time she tried to move, she
           would end up choking herself.         She said – she
           indicated she did have trouble breathing. During the
           assault, after he duct taped her and -- and tied her
           up, he -- she indicated that he had sexual
           intercourse with her. During this assault, [Molchany]
           told [H.S.] that he would kill her if she screamed or
           told anybody about this incident. She indicated that
           the following night, [Molchany] was intoxicated, told
           her to go into the bedroom, she refused to go, he
           picked her up, dragged her into the bedroom,
           removed her clothing, again tied her hands to her
           neck with a cord where when she moved her hands,
           she would end up choking herself, taped her mouth
           with duct tape and again had intercourse with her.
           [H.S.] indicated that [Molchany] threatened to kill
           her if she told anybody this incident. On August
           25[,] 2005, [Molchany] was interviewed by State
           Police at State Police headquarters. He was advised
           of his Miranda [w]arnings, he agreed to speak [to]
           the police and he provided a statement indicating
           that he had sexual intercourse with [H.S.] when she
           was twelve years old.

N.T., 4/30/07, at 24-27.

     Following Molchany’s plea,

           [o]n August 8, 2007, a [p]resentence [i]nvestigation
           [r]eport was completed by the Lehigh County
           Department of Probation and Parole. On January 25,
           2008, a hearing was held before the [c]ourt to
           determine     [Molchany]’s    [s]exually   [v]iolent
           [p]redator (hereinafter “SVP”) status.      At the
           conclusion of the hearing, the [c]ourt found
           [Molchany] to be a SVP.

                                   -2-
J-S63011-15

               On January 28, 2008, [Molchany] was sentenced
            in the aggregate to undergo imprisonment for no
            less than three years nor more than six years in a
            [s]tate [c]orrectional [i]nstitution, to be followed by
            a period of four years of probation under the
            Pennsylvania Board of Probation & Parole.

                On October 17, 2014, a [p]robation and [p]arole
            [i]ntermediate [p]unishment [v]iolation [w]arrant
            was filed, alleging that [Molchany] failed to obey
            imposed conditions of his probation, specifically that
            he failed to successfully complete sex offender
            treatment. The warrant was issued on October 20,
            2014.

               On November 13, 2014, a Gagnon II [h]earing
            was held before this [c]ourt.        At the [h]earing,
            [Molchany] conceded the allegations of the
            [p]etition.      The [c]ourt revoked [Molchany]’s
            probation supervision and resentenced him to a
            period of incarceration of not less than three years
            nor more than six years in a state correctional
            institution, to be followed by eight years of probation
            supervision.

               On December 2, 2014, [Molchany] filed a pro se
            [n]otice of [a]ppeal.     The [c]ourt appointed the
            Office of the Public Defender to represent [Molchany]
            for the purpose of [a]ppeal. Counsel filed a [timely]
            [c]oncise [s]tatement of [m]atters [c]omplained of
            on [a]ppeal on January 14, 2015.

Trial Ct. Op., 1/26/15, at 2-3.

      On appeal, Molchany raises the following issue for our review:

            Was the sentence imposed by the lower court
            manifestly excessive or otherwise unjustified based
            upon the lack of any proportional punishment based
            upon the nature of [Molchany]’s probation violation
            and need for rehabilitation as well as the court’s
            perceived dislike of Molchany?

                                     -3-
J-S63011-15

Molchany’s Brief at 8.

       Molchany argues that the trial court abused its discretion in sentencing

him following his revocation of probation because it did not sentence him in

accordance with the mandates of section 9721(b)2 of the Sentencing Code.

Molchany contends that his sentence of three to six years of incarceration

was manifestly excessive, disproportionate to the technical nature of his

probation violation, and influenced by the trial court’s personal dislike of

him.    See id. at 13-20.     Molchany further asserts that his sentence was

manifestly excessive because he was compliant in all other respects with his

probation. Id. at 19. These arguments challenge the discretionary aspects

of Molchany’s sentence. See Commonwealth v. Cartrette, 83 A.3d 1030,

1040-41 (Pa. Super. 2013) (en banc) (holding that a claim that a trial court

did not sentence a defendant following the revocation of probation pursuant

to section 9721(b) of the Sentencing Code raised a challenge to the

discretionary aspects of sentencing).

2
    Section 9721(b) states, in pertinent part, as follows:

             [T]he court shall follow the general principle that the
             sentence imposed should call for confinement that is
             consistent with the protection of the public, the
             gravity of the offense as it relates to the impact on
             the life of the victim and on the community, and the
             rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b).

                                       -4-
J-S63011-15

     “The right to appellate review of the discretionary aspects of a

sentence is not absolute, and must be considered a petition for permission to

appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.

2014), appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a

four-part test to invoke this Court’s jurisdiction when challenging the

discretionary aspects of a sentence.” Id. We conduct this four-part test to

determine whether,

           (1) the appellant preserved the issue either by
           raising it at the time of sentencing or in a post[-
           ]sentence motion; (2) the appellant filed a timely
           notice of appeal; (3) the appellant set forth a concise
           statement of reasons relied upon for the allowance of
           his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
           appellant raises a substantial question for our
           review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

     Here, Molchany failed to preserve his discretionary aspects of

sentencing claim by raising it at sentencing or in a post-sentence motion.

Accordingly, Molchany has failed to preserve his discretionary aspects of

                                    -5-
J-S63011-15

sentencing claim for review.    See Baker, 72 A.3d at 662; Cartrette, 83

A.3d at 1042 (“[I]ssues challenging the discretionary aspects of a sentence

must be raised in a post-sentence motion or by presenting the claim to the

trial court during the sentencing proceedings.       Absent such efforts, an

objection to a discretionary aspect of a sentence is waived.”). As this is the

only issue Molchany has raised on appeal, he is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/5/2015

                                     -6-


71 F.Supp.2d 537 (1999)
Nancy C. MORRIS, Plaintiff,
v.
WASTE MANAGEMENT OF VIRGINIA, INC., d/b/a Waste Management of Hampton Roads, Defendant.
No. Civ.A. 299cv385.
United States District Court, E.D. Virginia, Norfolk Division.
November 12, 1999.
*538 Scott M. Reed, Virginia Beach, VA, for plaintiff.
Lawrence P. Postol, Seyfarth, Shaw, Fairweather, Washington, DC, for defendants.

OPINION AND ORDER
FRIEDMAN, District Judge.
On June 15, 1999, defendant filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A hearing on this motion was originally set for July 14, 1999, a final pretrial conference was set for October 8, 1999, and a jury trial was scheduled for November 8, 1999. On August 31, 1999, this Court entered a stipulated order staying this case except for the pending Motion to Dismiss and vacating the final pretrial and trial dates. For the reasons stated below, the defendant's Motion to Dismiss is DENIED.

Factual and Procedural Background
Plaintiff, a female United States citizen over the age of forty, was employed by defendant from September 1995 until December 10, 1997. (Complaint ¶ 4). She alleges that during this period, defendant, by and through its authorized management and supervisory employees and agents "intentionally and deliberately engaged in unlawful, discriminatory and differential employment practices against Plaintiff on account of her gender (female), in violation of the [Civil Rights] Act, Sections 2000e-2(a), (d), (h) and (m) and 2000e-16, Title 42, United States Code," (Complaint ¶ 5), and "on account of her age, in violation of the ADEA, 29 U.S.C. § 623." (Complaint ¶ 11). She alleges that defendant's unlawful practices included: "the imposing upon Plaintiff differential and discriminatory standards of performance and behavior; the imposing upon Plaintiff of arbitrary, unreasonable and harsh discipline; creating and maintaining a hostile work environment for Plaintiff; and terminating Plaintiff's employment." (Complaint ¶¶ 5, 11). The defendant has moved for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, asserting that the plaintiff has failed to exhaust state law remedies as required by Title VII. The Court construes defendant's motion for dismissal as one pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction.

I. Worksharing Agreement Between the EEOC and the VCHR
In addition to creating the substantive rights set forth in Title VII, Congress empowered the Equal Employment Opportunity Commission ("EEOC") with the authority to enforce Title VII by, inter alia, acting on individual complaints. See 42 U.S.C. § 2000e-4. The EEOC has been vested with the power "to cooperate with, *539 and with their consent, utilize regional, State, local, and other agencies, both public and private, ..." 42 U.S.C. § 2000e-4(g)(1). The EEOC has entered into a Worksharing Agreement ("Agreement") with the Virginia Council on Human Rights ("VCHR")[1] in order "to provide individuals with an efficient procedure for obtaining redress for their grievances under appropriate State or Federal laws." Worksharing Agreement Between Virginia Council on Human Rights and Equal Employment Opportunity Commission for Fiscal Year 1998, ¶ I-B [hereinafter 1998 Worksharing Agreement]. In the Agreement, each agency designates the other as its agent for the purposes of receiving and drafting charges, and the "EEOC's receipt of charges on the [VCHR's] behalf will automatically initiate the proceedings of both EEOC and the [VCHR] for the purposes of Section 706(c) and (e)(1) of Title VII." Id. at ¶ II-A. The Agreement further states that "[f]or charges originally received by the EEOC and/or to be initially processed by the EEOC, the [VCHR] waives its right of exclusive jurisdiction to initially process such charges for a period of 60 days for the purposes of allowing the EEOC to proceed immediately with the processing of such charges before the 61st day." Id. at ¶ III-A.
When one agency initially receives a charge, the Agreement provides that it will communicate the charge to the other. See id. at ¶¶ II-C. The forms typically used to communicate that information are the Charge of Discrimination Form 5 ("EEOC Form 5") and a Transmittal Form 212 ("EEOC Form 212"). The Form 5, which is prepared by either an EEOC or VCHR agent and signed by the complainant upon the agent's receipt of the relevant information from the complainant, notifies the other agency of the nature of the charge filed by the particular complainant. The Form 212 is utilized to decide which agency will pursue investigation of the charge. With the Form 212, the intake agency (the agency with whom the complainant initially filed the charge), completes and signs the upper half of the form. The form is then sent to the other agency in order for the bottom half of the form to be completed, signed, and returned to the intake agency.
This Agreement, therefore, is authorized by Title VII and by Virginia law, and pursuant to it, the EEOC and VCHR have established a practice of regularly communicating the fact the charges have been made and considering the charges to have been "dual filed" with both signatory agencies once they have been filed with one of them. See Smith v. Center Ford, Inc., 71 F.Supp.2d 530, 532 (E.D.Va.1999). The Agreement, both at the time the plaintiff filed her charge (fiscal year 1998) and currently, is relied upon by the agencies as the definition of the agencies' working relationship and the practices which they follow when a complainant makes a charge of employment discrimination.
On June 5, 1998, plaintiff filed a complaint against her employer in the Norfolk, Virginia office of the EEOC. Based on answers given to the EEOC by the plaintiff, the EEOC staff prepared an EEOC Form 5 which plaintiff signed under penalty of perjury on June 5, 1998. The EEOC Form 5 briefly sets forth the essential facts of plaintiff's claim and contains the declaration: "I believe that the termination of my employment was on account of my gender (female) and age (43), in violation of the Title VII of the Civil Rights Act and the Age Discrimination in Employment Act." The recited text respecting *540 the source of law for a claim is a computer-produced boilerplate statement entered by the EEOC. See Smith, at 532. Plaintiff's Form 5 contained the preprinted textual statement: "I want this charge filed with both the EEOC and the State or local Agency, if any." There is no box adjacent to the text for a complainant to check in order to indicate an affirmation of this statement.[2]
On June 15, 1998, the EEOC forwarded the EEOC Form 5 and EEOC Form 212 to the VCHR. The EEOC Form 212 for plaintiff's complaint, which was completed and signed by the EEOC, reflects that the charge of employment discrimination initially was received by the EEOC. According to the Form 212, "pursuant to the worksharing agreement," the charge was to be initially investigated by the EEOC. The bottom half of the form was then completed by the VCHR (signed by Ms. Kornegay, the VCHR Director) thereby "acknowledg[ing] receipt of the referenced charge and indicat[ing] [the VCHR's] intention not to initially investigate the charge." On June 19, 1998, the VCHR returned plaintiff's forms to the EEOC and, on December 9, 1998, the EEOC issued plaintiff a right-to-sue letter. Plaintiff timely filed this action on March 12, 1999.

Analysis
Defendant asserts that plaintiff did not satisfy the administrative requirements of Title VII which are the essential predicate to confer jurisdiction upon the EEOC, and, therefore this Court lacks subject matter jurisdiction over plaintiff's claim. As recognized by a series of recent District Court opinions, including one by this Court, this jurisdictional challenge stems from two decisions by the United States Court of Appeals for the Fourth Circuit, interpreting provisions of Title VII respecting the role of state agencies in Title VII's enforcement scheme.
In Tinsley v. First Union National Bank, 155 F.3d 435 (4th Cir.1998), the Fourth Circuit held that because the VCHR is a deferral agency, Virginia is a "deferral state" within the meaning of Title VII. See id. at 441-42. In Davis v. North Carolina Department of Correction, 48 F.3d 134 (4th Cir.1995), the Court of Appeals held that in a deferral state, the complaining party is required by Title VII to have first commenced proceedings with the deferral agency "under State or local law" before the complainant can proceed in the EEOC or file an action over which a federal court has subject matter jurisdiction. See id. at 138; see also 42 U.S.C. § 2000e-5(c).[3] In an unpublished opinion, Dodge v. Philip Morris, Inc., No. 99-1968, 1999 WL 162955 (4th Cir. March 25, 1999), the Fourth Circuit held that because a plaintiff had failed to include a state law claim, she had not commenced proceedings under state law, and the Court, therefore, lacked subject matter jurisdiction. While this unpublished opinion has been widely cited, the Fourth Circuit in Dodge explicitly stated that it was not deciding "whether the filing with the EEOC satisfied the requirement of commencing state proceedings with the VCHR." Id. at *2. While Dodge does not serve as precedent, it is informative.
The facts present in this case are similar to those in a consolidated case before Judge Payne in Dew v. Nabisco, Inc. et al., Nos. 3:99cv353, 3:99cv117, 3:99cv188 *541 (E.D.Va. Oct. 4, 1999). In Dew, plaintiff Mary Dew had proceeded in a manner similar to the plaintiff in this case, and Judge Payne, nonetheless, concluded that Dew had exhausted state law remedies as required by Title VII. The Box on Dew's EEOC Form 5 was not checked. See id. at 6. As plaintiff's EEOC Form 5 in this case did not even contain a Box, the relevance of checking the Box in not an issue. With regard to the Form 5, plaintiff's desire to have her charge forwarded to the VCHR is construed as automatically affirmative in nature. Dew's EEOC Form 5 contained the following declaration: "I believe that I have been discrimination against because of my sex, female, in violation of Title VII of the Civil Rights Act of 1964, as amended." Id. This language, as with the Statement on plaintiff's EEOC Form 5 makes no reference to a violation of state law. The court in Dew further recognized that complainants do not draft this language themselves, as "the ... text [on the EEOC Form 5] respecting the source of law for a claim is a computer-produced boilerplate statement entered by the EEOC." Id. As with the plaintiff in this case, Dew's EEOC Forms 5 and 212 were forwarded to the VCHR, completed by the VCHR, returned to the EEOC, and the EEOC issued a right-to-sue letter.
The determination of whether or not state law is implicated is actually made by a VCHR official based on the factual allegations and substance of the complaint. See id. at 17-18. The Court in Dew held that based on the factual allegations set forth in the EEOC forms, Dew had commenced proceedings under state law, and, accordingly, the Court had subject matter jurisdiction over Dew's action. See id. at 19.
Considering the procedures utilized by the EEOC and the VCHR as a whole, Judge Payne stated, "by virtue of the Agreement, the EEOC sends the charges to the VCHR (as well as the EEOC), the VCHR ascertains whether state law claims are presented. Moreover, the Agreement and the agencies' practices provide for a waiver of jurisdiction by the VCHR after a lapse of 60 days at the latest (and simultaneously with receipt of the charge by the VCHR at the earliest)." Id. at 21. Although Judge Payne held that the procedures utilized by the EEOC and the VCHR as well as the Agreement itself were sufficient to satisfy the requirements of Title VII and were entitled to deference, he criticized them as amounting to "little more than paper-pushing."[4]Id. at 23. In Dew, Judge Payne denied each of the defendants' motions to dismiss.
In Dew, Judge Payne relied heavily on Judge Williams' opinion in Flippo v. American Home Products, Corp., 59 F.Supp.2d 572 (E.D.Va. 1999). In Flippo, Judge Williams concluded that, "in Virginia, a written statement of facts lacking any citation to specific state statutes is sufficient to commence proceedings under state law and satisfy Section 706(c)." Id. at 8. In support of this conclusion, "worksharing agreements between the EEOC and state deferral agencies should be interpreted to effectuate the intent of these agencies to comply with § 706." Id. As recognized in Flippo, neither Title VII, state codes or regulations, nor the agencies' Agreement require more than the VCHR's receipt of a plaintiff's complaint as well as all of the information necessary to evaluate the claim under state law. See id. at 10. Dew, however, carried the holding in Flippo *542 a step further, applying it to a factual scenario in which a plaintiff had not checked the Box on the EEOC Form 5.
In Nash v. D.S. Nash Construction Co., 70 F.Supp.2d 639 (W.D.Va.1999), Judge Moon, in reliance on the opinion in Dew, also held that a complainant who had filed a charge with the EEOC and had failed to check the Box on Form 5 had exhausted state law remedies. The plaintiff in Nash had filed a charge alleging ADA violations with the EEOC, and even though the Box on his EEOC Form 5 was not checked, his claim was forwarded to the VCHR pursuant to the Worksharing Agreement for fiscal year 1998. See id. at 640-41. The VCHR acknowledged receipt of the charge and indicated its intention to not investigate it initially, and plaintiff was issued a notice of right to sue. See id. at 641. This factual scenario, as with that present in Dew, closely resemble the facts in the present case.
In Nash, Judge Moon held that "the VHRA does not require a claimant to do anything more than make an allegation of discrimination." Id. at 643. The court in Nash held that the plaintiff did exhaust all available state remedies as his failure to check the Box had no effect of the processing of his claim with the VCHR. See id. at 643. Judge Moon also expressed concern that requiring anything greater from complainants would be asking more than either Title VII or the VHRA require, "which is especially inappropriate in the context of a remedial antidiscrimination statute that is designed to be accessible to the layperson." Id. (citing Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972)).
A more recent opinion on this issue is also consistent with Judge Payne's holding in Dew. In Bolinsky v. Carter Machinery Co., Inc., 69 F.Supp.2d 842 (W.D.Va.1999), Judge Jones agreed with the recent district court opinions in Virginia with regard to the fact that a complainant's failure to explicitly reference state law is not determinative. "A plaintiff filing a discrimination charge need only set forth facts that would be sufficient to establish a state law claim in order to exhaust her state law remedies under Title VII." Id. at 847-48. Judge Jones further concluded that "[t]he terms of the worksharing agreement also do not require a specific citation of state law." Id. at 848. Accordingly, in Bolinsky, the defendant's motion to dismiss was denied.
This Court has issued the most recent opinion on this issue, and it is likewise consistent with the Dew line of cases. In Smith v. Center Ford, Inc., 71 F.Supp.2d 530 (E.D.Va.1999), this Court applied the reasoning in Dew to similar factual circumstances involving a 1995 Worksharing Agreement. This Court concluded that, for the reasoning as set forth inDew, Nash, and Bolinsky, "[n]either a failure to check the Box on the EEOC Form 5 nor a failure to specifically allege a violation of state law divests a federal court of jurisdiction to hear Title VII claims." Id. at 537. In Smith, the defendants' motion to dismiss was denied.
In addition to the cases discussed above, several other district courts have been presented with the issue of whether filing with the EEOC constitutes the exhaustion of state law remedies, and all but one court has denied the respective defendants' motions to dismiss for lack of jurisdiction. See Puryear v. County of Roanoke, 71 F.Supp.2d 551 (W.D.Va. 1999) (denying defendant's motion to dismiss); Capps v. City of Lynchburg, 67 F.Supp.2d 589 (W.D.Va. 1999) (denying defendant's motion to dismiss); Grimes v. Canadian American Transportation, C.A.T. (U.S.), 72 F.Supp.2d 629 (W.D.Va.1999) (denying defendant's motion for summary judgment); Harris v. The TJX Companies, Inc., 60 F.Supp.2d 562 (W.D.Va.1999) (denying defendant's motion to dismiss). But see Walker v. Electrolux Corp., 55 *543 F.Supp.2d 501 (W.D.Va. 1999) (granting defendant's motion to dismiss).
In light of the holdings of the District Courts in Dew, Nash, Bolinsky, and Smith, it is the opinion of this Court that the defendant's motion to dismiss should be denied. The plaintiff has met her burden under 42 U.S.C. § 2000e-5(c). Neither the signing of an EEOC Form 5 with no Box present nor a failure to specifically allege a violation of state law divests a federal court of jurisdiction to hear Title VII or ADEA claims. It was the explicit intent of the EEOC and the VCHR in establishing the procedures for the processing of charges "to provide individuals with an efficient procedure for their grievances under appropriate State or Federal law." Worksharing Agreement for Fiscal Year 1998, at ¶ I-B. To require of complainants anything more than the plaintiff has done in this case would place far too great a burden on a layperson in the plaintiff's situation. See Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972).

Conclusion
For the reasons set forth above, defendant's motion to dismiss is DENIED. Furthermore, because this Court finds that this decision involves a controlling issue of law over which reasonable judges may differ, and that an immediate appeal will best serve the interests of judicial economy and avoid unnecessary expense to the parties if decided by the Court of Appeals on an Interlocutory basis, this Court hereby CERTIFIES this interlocutory decision as appealable under 28 U.S.C. § 1292(b). Accordingly, further proceedings are STAYED until the Court of Appeals has had the opportunity to address the issues presented by this case.
The Clerk is REQUESTED to send a copy of this Opinion and Order to all counsel of record.
It is so ORDERED.
NOTES
[1]  The VCHR is a state administrative agency that is empowered, pursuant to the Virginia Human Rights Act, to receive, process and investigate claims of employment discrimination occurring within Virginia filed against employers employing more than five but less than fifteen persons. See Va.Code Ann. § 2.1-714, et seq. The VCHR is likewise authorized to "enter into cooperative worksharing agreements with federal agencies or local commissions, including the deferral of complaints of discrimination to federal agencies or local commission." Va.Code Ann. § 2.1-720.5.
[2]  Other examples of the EEOC Form 5 contain a box (the "Box") next to the preprinted textual statement for a complainant to check in order to affirm the statement. See, e.g., Smith, at 532.
[3]  42 U.S.C. § 2000e-5(c) states: "[i]n the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice ... no charge may be filed ... by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law unless proceedings have been earlier terminated."
[4]  Judge Payne observed the following with regard to the agencies' procedures: "The procedures followed by the agencies were no doubt convoluted, perhaps even bizarre. The Agreement itself is far from an exemplar of legal drafting. The Agreement and the procedures, as the defendants rightly allege, amount to little more than paper-pushing. And, from the record here, it appears that, indeed, neither the EEOC nor the VCHR is equipped to do well the job contemplated by the statute. That said, however, bureaucratic misadministration is certainly no reason to interpose, as a bar to Title VII relief, the very procedures adopted by the responsible agencies as the means to fulfill their statutory mandates." Id. at 23.


                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LAMONTE DESHAWN SIMS,                           No.    17-55028

                Petitioner-Appellant,           D.C. No. 2:15-cv-09454-JCG

 v.
                                                MEMORANDUM*
CHRISTIAN PFEIFFER, Warden,

                Respondent-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                   Jay C. Gandhi, Magistrate Judge, Presiding**

                           Submitted January 15, 2019***

Before:      TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

      California state prisoner LaMonte DeShawn Sims appeals pro se from the

district court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition. We

have jurisdiction under 28 U.S.C. § 2253. We review the denial of a habeas

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The parties consented to proceed before Magistrate Judge Gandhi
under 28 U.S.C. § 636(c).
      ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
petition de novo, see Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011), and we

affirm.

      The sole issue certified on appeal is whether Sims’s appellate counsel

rendered ineffective assistance by failing to challenge on Confrontation Clause

grounds the trial court’s admission of statements made by the victim to police. The

victim’s statements—including that Sims was her boyfriend, he had not assaulted

her, and she did not want police to take him away—were admitted through

testimony elicited by defense counsel for the limited purpose of establishing the

victim’s state of mind to dispute the state’s kidnapping theory. Sims was acquitted

on the kidnapping charge. The California Supreme Court’s determination that

Sims failed to establish deficient performance or prejudice resulting from appellate

counsel’s decision not to raise a Confrontation Clause challenge to the testimony

elicited by trial counsel was not contrary to, nor an unreasonable application of, the

Strickland v. Washington, 466 U.S. 668 (1984), standard. See 28 U.S.C. §

2254(d)(1); Jones v. Barnes, 463 U.S. 745, 753 (1983).

      To the extent Sims briefed issues beyond the certificate of appealability

(“COA”), we treat his briefing as a request to expand the COA and deny it. See

9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).

      AFFIRMED.

                                          2                                    17-55028


848 F.2d 193
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Roy PIERSON, Plaintiff-Appellant,v.J.A. BLACKWELL, Defendant-Appellee.
No. 87-6248.
United States Court of Appeals, Sixth Circuit.
May 4, 1988.

Before MERRITT and CORNELIA G. KENNEDY, Circuit Judges and JOHN W. PECK, Senior Circuit Judge.

ORDER

1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.  Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed.  Fed.R.App.P. 34(a).

2
Upon consideration, we affirm the judgment of the district court for the reasons stated in its memorandum opinion and order filed July 7, 1987.  Rule 9(b)(5), Rules of the Sixth Circuit.


947 So.2d 270 (2006)
Orlando JENKINS
v.
STATE of Mississippi.
No. 2005-KA-00859-SCT.
Supreme Court of Mississippi.
November 30, 2006.
Rehearing Denied February 8, 2007.
*273 Raymond M. Baum, Winona, attorney for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
Before WALLER, P.J., EASLEY and CARLSON, JJ.
WALLER, Presiding Justice, for the Court.
¶ 1. Orlando Jenkins was convicted in the Attala County Circuit Court of the murder of Andre Porter Barnes and sentenced to life in prison. On appeal, Jenkins argues (1) the indictment against him *274 should be dismissed because the State violated his statutory and constitutional rights to a speedy trial, and (2) he should be granted a new trial because his conviction was against the overwhelming weight of the evidence. Finding that each of Jenkins' claims is without merit, we affirm the judgment of the trial court.

FACTS
¶ 2. In the evening on July 10, Jenkins' co-indictee, Dewon Winters, and a female companion met Jenkins at the Hannah Heights apartment complex in Ethel, Mississippi. Jenkins approached Barnes at the complex and convinced him to accompany them in Winters' car. Winters left his companion at a trailer belonging to his sister, and he, Jenkins, and Barnes drove to a remote dirt road. Winters maintains that Jenkins then shot and killed Barnes with Winters' gun. Jenkins claims Winters killed Barnes.
¶ 3. The two men hid Barnes' body in the woods and returned to the trailer, where they found Winters' cousin and his girlfriend with Winters' companion. Winters and Jenkins placed their clothing and the gun and bullets used in the crime in a bag and told Winters' cousin to bury it. Winters, his companion, and Jenkins then drove to Jackson. Winters' cousin borrowed a shovel from another cousin and buried the evidence. Barnes' sister overhead Winters' cousin ask about the shovel. She found the request suspicious, and when she could not find her brother in the morning on July 11, she notified the police that Winters' cousin might be involved in Barnes' disappearance. Winters' cousin implicated Winters and Jenkins, and the police arrested Jenkins on July 11, 2003. Winters fled the state, and was arrested in Illinois nine months later.
¶ 4. On August 4, 2003, the police officer investigating the case sent Jenkins' clothes to the Mississippi Crime Lab for serology analysis to determine if there was blood on the clothing. Winters and Jenkins were indicted together for murder on March 4, 2004. On July 29, 2004, the state crime lab confirmed that there was blood on Jenkins' shoes. Jenkins filed a motion for severance which was granted by the trial court on August 26, 2004. On September 17, 2004, Jenkins filed a motion to dismiss his indictment for want of a speedy trial. On September 24, 2004, the police requested DNA testing of the blood found on Jenkins' shoes. The report on the DNA testing, which confirmed that Jenkins' shoes had the victim's blood on them, was issued in March of 2005.
¶ 5. Jenkins' trial began on March 28, 2005. Winters testified for the prosecution at Jenkins' trial, stating that he and Jenkins were involved in a drug deal together and that Jenkins killed Barnes for disrespecting him. Jenkins maintained that he did not know Winters and that Winters killed Barnes because Barnes would not give him information. After being convicted of murder on March 31, 2005, and sentenced to life in prison, Jenkins appeals.

DISCUSSION
I. STATUTORY AND CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL
¶ 6. Jenkins claims that the delay in his trial violates both his statutory right to a trial within 270 days of his arraignment under Miss.Code Ann. § 99-17-1 (2006) and his constitutional right to a speedy trial under the Sixth and Fourteenth Amendments to the U.S. Constitution, Article 3, section 26 of the Mississippi Constitution, and the United States Supreme Court's holding in Barker v. Wingo, 407 *275 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
¶ 7. Jenkins asserted his right to a speedy trial, or a dismissal of his indictment in the alternative, on September 17, 2004. The circuit court granted Jenkins motion on September 22, 2004, and ordered his trial set for the first weeks of October 2004. For reasons that are not provided in the record, Jenkins was not tried in October 2004, and his trial was set for March 28, 2005. On March 2, 2005, Jenkins filed a second motion to dismiss his indictment for want of a speedy trial. Another trial judge considered Jenkins' motion on March 3, 2005, and found that neither Jenkins' statutory right nor his constitutional right to a speedy trial had been violated. Jenkins renewed his motion again at the beginning of the trial on March 28, 2005, noting that one of his witnesses could not be found. The State argued that the proposed testimony of the missing witness concerned issues not in dispute by the State, that the testimony was duplicative of other witnesses' testimony, and that Jenkins therefore suffered no prejudice. The trial judge reserved ruling on the issue until the close of Jenkins' case. After the close of Jenkins' case, the trial judge found that, because the proposed testimony was cumulative, Jenkins suffered no prejudice from its absence. He therefore denied the motion to dismiss.
¶ 8. Reviewing a trial court's denial of a motion to dismiss for want of a speedy trial "necessarily entail[s] questions of fact regarding whether the trial delay rose from good cause." Manix v. State, 895 So.2d 167, 173 (Miss.2005) (citing DeLoach v. State, 722 So.2d 512, 516 (Miss.1998)). We adopt a deferential standard of review for such factual determinations and will reverse only if the trial court's decision is clearly erroneous. Id. (citing Stokes v. State, 548 So.2d 118, 122 (Miss.1989)). We will uphold the trial court's decision based on substantial, credible evidence of a finding of good cause. Young v. State, 891 So.2d 813, 817 (Miss. 2005) (citing Folk v. State, 576 So.2d 1243, 1247 (Miss.1991)).
A. The Statutory Right
¶ 9. Section 99-71-1 of the Mississippi Code requires that all offenses be tried within 270 days of arraignment, unless the court shows good cause and enters a continuance.[1] The statute is not applicable to delays between the alleged act and the indictment. Coleman v. State, 725 So.2d 154, 156 (Miss.1998). When the accused is not tried within 270 days of his arraignment, the State has the burden of establishing good cause for the delay since the accused is under no duty to bring himself to trial. Herring v. State, 691 So.2d 948, 953 (Miss.1997); Perry v. State, 419 So.2d 194, 199 (Miss.1982)
¶ 10. Delays caused by a backlog at state or federal crime lab constitute good cause and will not be attributed to the State. See Manix v. State, 895 So.2d 167, 176 (Miss.2005) (delay caused by backlog in state crime lab does not prejudice State); State v. Magnusen, 646 So.2d 1275, 1281 (Miss.1994) (five-month delay by crime lab not attributed to State); Gray v. State, 728 So.2d 36, 48 (Miss.1998) (delay caused by FBI crime lab does not weigh in favor of defendant). This Court has also recognized congested dockets as good *276 cause. Herring, 691 So.2d at 953; Folk v. State, 576 So.2d 1243 (Miss.1991).
¶ 11. There was a delay of 389 days between Jenkins' arraignment on March 4, 2004, and the beginning of his trial on March 28, 2005. The delay from March 4, 2004, to July 29, 2004, was due to the backlog at the state crime lab, which the trial court found to be good cause. The delay from July 29, 2004, to September 21, 2004, was due to the investigating officer's deployment with the military, which the trial court found to be good cause. The delay from September 21, 2004, to March 27, 2005, was due to delays in DNA testing, requested from the state crime lab but ultimately performed by a private company, which the trial court also found to be good cause. Finally, on its own initiative, the trial court noted that its docket was congested, and that the court would not have been able to try Jenkins between October 1, 2004, and March 7, 2005.
¶ 12. In the trial court's hearing on Jenkins' motion to dismiss for violation of the right to a speedy trial, the State provided witnesses from the police, the state crime lab, and the district attorney's office, all of whom testified to the delays caused by the crime lab's personnel shortages and backlog of requests. The determinations of the trial court were supported by substantial, credible evidence of good cause. Therefore, Jenkins' statutory right to a speedy trial was not violated by the delay.
B. The Constitutional Right
¶ 13. Jenkins also claims that the delay of his trial violated his constitutional right to a speedy trial. The Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. In Barker v. Wingo, the United States Supreme Court articulated the standard of review for determining whether the constitutional right to a speedy trial has been violated. 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; see also Brengettcy v. State, 794 So.2d 987, 992 (Miss.2001). Under the Barker test, courts must balance: (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the defendant was prejudiced by the delay. No one factor is dispositive. Poole v. State, 826 So.2d 1222, 1229-30 (Miss.2002).
(1) The Length of the Delay
¶ 14. The length of the delay is a threshold issue under Barker. 407 U.S. at 530, 92 S.Ct. 2182. The Barker factors will be considered only if the length of the delay is "presumptively prejudicial" to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. 2182; Smith v. State, 550 So.2d 406, 408 (Miss.1989). The constitutional right to a speedy trial, unlike the statutory right created by Miss.Code Ann. § 99-17-1, attaches when a person has been effectively accused of a crime. Magnusen, 646 So.2d at 1278 (citing Box v. State, 610 So.2d 1148 (Miss.1992)). A delay in excess of eight months between arrest and trial is sufficient to trigger analysis under Barker. Manix, 895 So.2d at 176; Skaggs v. State, 676 So.2d 897, 900 (Miss.1996).
¶ 15. There was a delay of 626 days between Jenkins' arrest on July 11, 2003, and the beginning of his trial on March 28, 2005. The delay is therefore presumptively prejudicial, and the remaining Barker factors must be considered.
(2) The Reason for the Delay
¶ 16. Once the delay is found to be presumptively prejudicial, the burden shifts to the State to produce evidence *277 justifying the delay and to persuade the trier of fact of the legitimacy of the reasons. Herring, 691 So.2d at 955-956; State v. Ferguson, 576 So.2d 1252, 1254 (Miss.1991). A delay by the State is justified by a showing of good cause. Ross v. State, 605 So.2d 17, 22 (Miss.1992).
¶ 17. Approximately 520 days of the 626 day delay can be attributed to either the state crime lab or the private company subsequently hired to complete the DNA testing requested by the State. Delays unintentionally caused by the State will not be weighed as heavily against the prosecution as delays intended to hurt the defendant's case. Jenkins v. State, 607 So.2d 1137, 1138-1140 (Miss.1992) (citing Williamson v. State, 512 So.2d 868, 876 (Miss.1987)). This Court has also been reluctant to weigh delay heavily against the State when the cause is an instrumentality of the State, such as the state crime lab. See Manix, 895 So.2d at 176; Gray, 728 So.2d at 48; Magnusen, 646 So.2d at 1281.
¶ 18. The trial court's determination that the delays should not be weighed against the State was based on credible evidence from the record. The second Barker factor favors neither party.
(3) Assertion of Right
¶ 19. While the State bears the burden of bringing a defendant to trial, a defendant's assertion of his right to a speedy trial weighs more heavily in his favor than not asserting it. Manix, 895 So.2d at 176. However, the demand for dismissal for violation of the right to speedy trial is not the equivalent of a demand for speedy trial, because such a motion seeks discharge and not trial. See, e.g., Stark v. State, 911 So.2d 447 (Miss. 2005). Jenkins asserted his right to a speedy trial on September 17, 2004, 433 days after his arrest and 197 days after his arraignment, and requested a dismissal of the indictment in the alternative. This motion constituted a valid assertion of his right to a speedy trial. The third Barker factor therefore favors Jenkins.
(4) Prejudice to the Defendant
¶ 20. Jenkins alleges that his case was prejudiced in two ways. First, he claims his incarceration from July of 2003 to March of 2005 caused him anxiety and concern, one of the interests contemplated by the U.S. Supreme Court in Barker. Second, he claims that he was prejudiced because at the beginning of his trial, he was unable to locate a previously-subpoenaed witness.
¶ 21. In considering whether Jenkins was prejudiced by the delay, we must look to the three interests for which the speedy trial right was designed: "(I) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Mitchell v. State, 792 So.2d 192, 213 (Miss.2001); Barker, 407 U.S. at 532, 92 S.Ct. 2182. Generally, proof of prejudice entails the loss of evidence, the death of witnesses, or the staleness of an investigation. Sharp v. State, 786 So.2d 372, 381 (Miss.2001) (citations omitted). The possibility of impairment of the defense is the most serious consideration in determining whether the defendant has suffered prejudice as a result of delay. Id. Mississippi case law does not recognize as prejudice the negative emotional, social, and economic impacts that accompany incarceration. Manix, 895 So.2d at 177 (citing Hughey v. State, 512 So.2d 4, 11 (Miss.1987)). Consequently, a defendant's assertion of prejudice attributable solely to incarceration, with no other harm, typically is not sufficient to warrant reversal. Ross, 605 So.2d at 23.
*278 ¶ 22. Because we have declined to recognize the negative impacts of incarceration as prejudicial, Jenkins' incarceration alone does not constitute prejudice, and his first claim is without merit. Jenkins' second claim of prejudice was considered by the trial court at the end of his case-in-chief. The trial judge's determination that the proposed testimony of the missing witness would be cumulative and that its absence was not prejudicial was supported by credible evidence in the record. The fourth Barker factor favors the State.
C. Conclusion
¶ 23. The trial court was well within its discretion in finding that the four Barker factors favored the State and that the delay in Jenkins' trial did not violate either his statutory or his constitutional right to a speedy trial. The trial court carefully considered Jenkins' claims and conscientiously applied the appropriate judicial tests to determine whether his rights had been violated. Finding no error by the trial court, we find the first assignment of error is without merit.
II. WEIGHT OF THE EVIDENCE.
¶ 24. Jenkins claims that the trial court erred in refusing to grant his motion for a new trial because the verdict was against the overwhelming weight of the evidence. The standard of review for denial of a motion for new trial is well-established. This Courts sits as a "thirteenth juror" and, in determining whether a jury verdict is against the overwhelming weight of the evidence,
this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.
Baker v. State, 802 So.2d 77, 81 (Miss. 2001) (citing Dudley v. State, 719 So.2d 180, 182 (Miss.1998)).
¶ 25. Jenkins claims that the only evidence against him was the uncorroborated testimony of his co-indictee Winters. He cites several cases for the proposition that convictions based solely on the such testimony may be reversed if the testimony is unreasonable, improbable, or self-contradictory. see, e.g., Mister v. State, 190 So.2d 869 (Miss.1966). Jenkins argues that inconsistencies between Winters' testimony and that of other witnesses prove that Winters' testimony is self-contradictory and improbable.
¶ 26. Jenkins is mistaken in his reliance on our rule for the uncorroborated testimony of an interested party. His conviction was not based solely on the testimony of his co-indictee, but also on eyewitness testimony and DNA evidence. Any conflicts between witnesses' accounts are properly weighed by the jury. When the evidence is conflicting, "the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony. . . . In other words, the credibility of witnesses is not for the reviewing court." Scott v. State, 796 So.2d 959, 968 (Miss. 2001). Sitting as a thirteenth juror and viewing the evidence in the light most favorable to the judgment, we cannot say that an unconscionable injustice resulted from the jury's guilty verdict. See Bush v. State, 895 So.2d 836, 844-45 (Miss.2005). The second assignment of error is without merit.

*279 CONCLUSION
¶ 27. Because each of Jenkins' two claims of error is without merit, we affirm the judgment of the trial court.
¶ 28. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SAID SENTENCE SHALL RUN CONSECUTIVELY TO ANY SENTENCE PREVIOUSLY IMPOSED.
SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., CONCUR IN RESULT ONLY.
NOTES
[1]  "Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned." Miss.Code Ann. § 99-17-1 (2006).


974 So.2d 386 (2008)
ARACENA
v.
STATE.
No. SC07-1814.
Supreme Court of Florida.
January 10, 2008.
Decision without published opinion. Rev.denied.