No. 04-04-00219-CR
Delivered and Filed: March 30, 2005. DO NOT PUBLISH.
Appeal from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-1415, Honorable Olin Straus, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
PHYLIS J. SPEEDLIN, Justice.
Appellant, Juan Reyes Torres, was convicted of two counts of sexual assault of a child and one count of indecency with a child by contact. On appeal, Torres argues (1) the trial court erred in denying his motion to dismiss on grounds that his Sixth Amendment right to a speedy trial had been violated; (2) a variance existed between the enhancement paragraph of the indictment and the proof at trial; and (3) the evidence was legally insufficient to prove that Torres was the person convicted of the prior offense set forth in the enhancement paragraph of the indictment. We overrule Torres's issues and affirm the judgment of the trial court.
Background
On February 28, 2002, Torres was charged by indictment with two counts of sexual assault of a child and one count of indecency with a child by contact. Torres was arrested and incarcerated in December 2002. Torres requested a continuance of the trial settings in February 2003 and April 2003. Thereafter, on April 21, 2003, Torres filed a motion for a speedy trial. Ten months later, on February 17, 2004, Torres filed a motion to dismiss the case due to a violation of his right to a speedy trial. After a hearing, the court denied Torres's motion to dismiss, and proceeded to trial on March 23, 2004, fifteen months after his arrest. The jury convicted Torres on all three counts and found the enhancement paragraph in the indictment true. Torres was given concurrent sentences of twenty years on each sexual assault count and five years on the indecency count. Discussion
Right to Speedy Trial In his first issue, Torres argues that he was denied his Sixth Amendment right to a speedy trial. U.S. Const. amend. VI. We apply a bifurcated standard of review when reviewing a trial court's decision on a speedy trial claim. State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999). We review the trial court's determination of historical facts under an abuse of discretion standard, while we review de novo the trial court's application of the law to the facts. Id. When, as here, the defendant does not prevail on a speedy trial claim, we presume the trial court resolved any disputed fact issues in favor of the State, and we defer to the implied findings of fact supported by the record. Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). In determining whether a defendant's right to a speedy trial has been violated, we weigh and balance four factors: (1) length of the delay; (2) reasons for the delay; (3) assertion of the right; and (4) prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972); Munoz, 991 S.W.2d at 821. This balancing test requires weighing case-by-case "the conduct of both the prosecution and the defendant," and no single factor is a "necessary or sufficient condition to the finding" of a speedy trial violation. Munoz, 991 S.W.2d at 821 (quoting Barker, 407 U.S. at 530, 533). The factors are considered together along with any other circumstances that may be relevant. Id. We address the four Barker factors below. 1. Length of the Delay The length of delay is a triggering mechanism for analysis of the other Barker factors. Munoz, 991 S.W.2d at 821. Further analysis is required if the length of the delay is "presumptively prejudicial." State v. Rangel, 980 S.W.2d 840, 843 (Tex.App.-San Antonio 1998, no pet.). Texas courts have generally found a delay beyond eight months to be presumptively prejudicial, thus triggering further analysis of the Barker factors. Id. The length of the delay is measured from the time the defendant is arrested or formally accused. Id. Here, Torres was indicted on February 28, 2002, and arrested on December 21, 2002. The date of his trial was March 23, 2004. We conclude that the 15-month delay between the date of his arrest and the date of trial triggers consideration of the remaining three Barker factors. See Dragoo v. State, 96 S.W.3d 308, 314 (Tex.Crim.App. 2003) ("In general, courts deem delay approaching one year to be `unreasonable enough to trigger the Barker [i]nquiry'"). 2. Reasons for the Delay Upon a finding that a presumptively prejudicial delay has occurred, the State bears the initial burden of justifying the delay. Rangel, 980 S.W.2d at 843. Different weights are assigned to different reasons for a delay. Munoz, 991 S.W.2d at 822. A deliberate attempt to delay a trial is weighed heavily against the State, while more neutral reasons such as negligence or overcrowded dockets are weighed against the State, but less heavily. Id. If the record is silent regarding the reason for the delay, it weighs against the State, but not heavily because we do not presume either a deliberate attempt by the State to prejudice the defense or a valid reason for the delay. Dragoo, 96 S.W.3d at 314; Zamorano, 84 S.W.3d at 649-50. Here, the record shows that during the fifteen month period following Torres's arrest, the trial was reset six times. The first of those resets is attributable to Torres, as his attorney requested a continuance of the February 14, 2003 trial setting. The trial was then set for April 11, 2003. Due to scheduling conflicts, Torres's attorney was unable to announce ready on this date as well and requested another setting. These initial delays are attributable to Torres and are weighed against him. The reasons for the remaining four resets and subsequent 11 months of delay are unclear from the record. Therefore, these delays are weighed against the State, since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. See Zamorano, 84 S.W.3d at 649. However, because no evidence exists that the State deliberately attempted to delay the trial, this factor is not weighed heavily against the State. See id. at 649-50; Dragoo, 96 S.W.3d at 314. 3. Assertion of the Right The third factor that a trial court must consider is the defendant's assertion of his right to a speedy trial. Munoz, 991 S.W.2d at 825. A defendant is responsible for asserting or demanding his right to a speedy trial. Id. A lengthy delay or lack of persistence in asserting the right attenuates a speedy trial claim. Russell v. State, 90 S.W.3d 865, 873 (Tex.App.-San Antonio 2002, pet. ref'd). However, a defendant's failure to assert his right to a speedy trial is not necessarily dispositive of his claim. Munoz, 991 S.W.2d at 825. Instead, a defendant's failure to do so is weighed and balanced with the other Barker factors. Id. A defendant's failure to assert his right makes it more difficult for him to prove he was denied a speedy trial. Id. Here, Torres filed a motion for speedy trial on April 21, 2003, four months after his arrest. However, he never requested a hearing on the matter until the day of trial, when he requested a dismissal. Torres's lack of persistence in asserting his speedy trial right by failing to request a hearing and procure a ruling on his motion constitutes evidence that his right to a speedy trial was not violated. See Cook v. State, 741 S.W.2d 928, 940 (Tex.Crim.App. 1987), vacated and remanded on other grounds, 488 U.S. 807 (1988) (weighing assertion-of-right factor against appellant where "there is no evidence beyond the two motions for speedy trial filed with the district clerk that appellant asserted his right to a speedy trial by requesting hearings to present evidence on the matter"); see also Barker, 407 U.S. at 531-532. 4. Prejudice Caused by the Delay The last Barker factor is "prejudice to the defendant." Munoz, 991 S.W.2d at 826. Prejudice to the defendant is assessed in light of the interests the right to a speedy trial is designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Id. Of these interests, the most important is protecting a defendant's ability to adequately prepare his case because compromise of this interest "skews the fairness of the entire system." Id. (quoting Barker, 407 U.S. at 532-33). The defendant has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. Id. When the defendant makes a prima facie showing of prejudice, the burden shifts to the State to show that the defendant suffered "no serious prejudice beyond that which ensued from the ordinary and inevitable delay." Id. (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973)). For purposes of showing a speedy trial violation, the prejudice suffered by the defendant must emanate from the delay. Anderson v. State, 8 S.W.3d 387, 392 (Tex.App.-Amarillo 1999, pet. ref'd). The dispositive consideration in determining whether Torres made a prima facie showing of oppressive pretrial incarceration is that Torres was incarcerated during the entire fifteen-month delay. See Munoz, 991 S.W.2d at 828. Under Munoz, the fifteen-month period that Torres spent in jail awaiting trial constitutes a prima facie showing of oppressive pretrial incarceration. Id.; Meyer v. State, 27 S.W.3d 644, 650 (Tex.App.-Waco 2000, pet. ref'd). On the second issue, minimizing his pretrial anxiety and concern, Torres testified that during his incarceration he lost his job, lost three teeth and suffered neck and back injuries. Specifically, Torres testified that his family suffered economically while he was incarcerated because he lost a job with Red McCombs and lost a cook job with Casey's Barbeque. Torres also testified that he lost three teeth as a result of the hard water, food, and toothpaste that were provided in the jail. Finally, Torres testified that he suffered unspecified back and neck injuries as the result of an assault by officers at the jail. Given the prima facie evidence of oppressive pretrial incarceration, Torres's uncontradicted testimony constitutes a prima facie showing that he suffered undue anxiety from the pretrial incarceration. See Meyer, 27 S.W.3d at 650. Finally, we must determine whether Torres made a prima facie showing that his defense was impaired by the delay. Torres claims that his defense was prejudiced because two of the State's witnesses were unavailable for trial and cross-examination of the witnesses was essential to his defense. In order to make "some showing of prejudice" on this issue, Torres must show that the witnesses were unavailable for trial, and that their testimony would have been relevant and material to his defense, and that he used due diligence to locate and produce the witnesses for trial. Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App. 1973); Meyer, 27 S.W.3d at 650. Torres failed to show what material information these witnesses would have provided in their testimony, how it would have benefitted his defense, and that he diligently attempted to secure their presence at trial. Consequently, Torres has failed to make a prima facie showing that his defense was impaired by the 15-month delay. In sum, while Torres was able to make a prima facie showing that he suffered anxiety and oppressive pretrial incarceration, he failed to make a prima facie showing that his defense was impaired by the delay. We conclude that the prejudice caused to Torres from the delay was minimal, and that this Barker factor should be weighed against him. See Munoz, 991 S.W.2d at 829 (prejudice was "minimal" where defendant was incarcerated for seventeen months and thus showed oppressive pretrial incarceration and anxiety, but failed to show his defense was impaired by the delay); see also Meyer, 27 S.W.3d at 651. Weighing the Barker factors based on the record before us, we conclude that Torres's right to a speedy trial was not violated. Although there was no explanation for much of the delay, part of the delay was attributable to Torres. Furthermore, Torres showed a lack of persistence in asserting his right to a speedy trial, and failed to demonstrate more than minimal prejudice. Accordingly, we hold that Torres's right to a speedy trial was not violated, and we overrule this issue. Enhancement In his second and third issues, Torres complains that there was a variance between the prior conviction alleged in the enhancement paragraph in the indictment and the proof adduced at trial, and that the evidence was legally insufficient to identify him as the person who committed the prior offense. The indictment alleged that Torres was convicted of aggravated robbery with a deadly weapon on July 19, 1977 in Cause No. "1977CR0784B" in Bexar County, Texas. By contrast, the clerk's certificate in the pen packet offered at trial identifies the cause number of the prior conviction as "77CR784," while the judgment inside the pen packet refers to Cause No. "77-CR-784B." "It is well settled that it is not necessary to allege prior convictions for the purpose of enhancement with the same particularity which must be used in charging on the primary offense." Freda v. State, 704 S.W.2d 41, 42 (Tex.Crim.App. 1986). Only a material variance between the indictment and the evidence at trial is fatal. Stevens v. State, 891 S.W.2d 649, 650 (Tex.Crim.App. 1995). "The object of the doctrine of variance . . . is to avoid surprise and for [a] variance to be material it must be such as to mislead the party to his prejudice." Id. (quoting Plessinger v. State, 536 S.W.2d 380, 381 (Tex.Crim.App. 1976)). A variance has to be both material and prejudicial to the defendant to require reversal. Human v. State, 749 S.W.2d 832, 837 (Tex.Crim.App. 1988). The defendant has the burden of showing surprise or prejudice. Id.; Santana v. State, 59 S.W.3d 187, 194 (Tex.Crim.App. 2001). In Human v. State, the indictment alleged the defendant was previously convicted in cause number "F7808690," while the proof at trial established Human was convicted in cause number "F-78-8690-IQ." Human, 749 S.W.2d at 838. The Court held the variance was not fatal because the numbers were substantially the same, the jury was not misled, and Human offered no proof that he was surprised or prejudiced by the discrepancy. Id. at 840. Here, the cause numbers "1977CR0784B," "77CR784," and "77-CR-784B" are substantially the same. See id. Moreover, Torres has failed to allege, argue, or prove that the variance surprised or prejudiced him. Id. Therefore, we conclude that Torres has failed to show a fatal variance requiring reversal, and overrule his second issue. In his third issue, Torres contends the evidence was legally insufficient to prove that he was the offender described in the pen packet offered by the State for enhancement purposes. In determining the legal sufficiency of enhancement evidence, we view the evidence in the light most favorable to the jury's answer and determine whether a rational trier of fact could have found punishment enhancement evidence beyond a reasonable doubt. Zimmer v. State, 989 S.W.2d 48, 50 (Tex.App.-San Antonio 1998, pet. ref'd) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). If we are presented with conflicting inferences or evidence, we must presume the jury resolved the conflict in favor of the verdict. Matchett v. State, 941 S.W.2d 922, 936 (Tex.Crim.App. 1996). The State has the burden of proof to show beyond a reasonable doubt that the prior conviction is final, and that the defendant was the person previously convicted. See Wilson v. State, 671 S.W.2d 524, 525 (Tex.Crim.App. 1984). There is no exclusive manner of proving a defendant's identity as to prior felonies alleged for enhancement, and each case is to be judged on its individual merits. Littles v. State, 726 S.W.2d 26, 32 (Tex.Crim.App. 1987) (opin. on reh'g). One accepted method is the introduction of certified copies of the judgment and sentence, and authenticated copies of Texas Department of Corrections or county jail records, including fingerprint records of the person convicted, supported by expert testimony matching them with known prints of the accused. Id. at 31. Here, in order to meet its burden, the State offered the testimony of a fingerprint expert who testified that, in his opinion, the fingerprints from the pen packet of the prior offense matched those of Torres. On appeal, Torres complains that the fingerprint evidence was insufficient to prove he committed the prior offense. At trial, the fingerprint expert based his opinion on the fact that the print from Torres's right middle finger matched the fingerprint card for the prior offense. On cross examination, the fingerprint expert stated that he found one point of comparison. Torres argues on appeal that there should be more than a single point of comparison for a positive identification. During trial, however, Torres's attorney never asked the expert about the required number of comparison points or whether there were sufficient points of comparison to substantiate his opinion that the prints matched. Furthermore, on appeal, Torres cites no authority in support of his argument that a single point of comparison is insufficient to establish identity. Even without the fingerprint evidence, the pen packet also contained photographs, along with a written description of the offender's name, height, weight, hair and eye color, date of birth, scars and marks — all of which matched Torres. Photographs made available to the jury for comparison with the accused can provide the independent evidence necessary to prove the accused was previously convicted as alleged. Littles, 726 S.W.2d at 32; see also Williams v. State, 946 S.W.2d 886, 895 (Tex.App.-Waco 1997, no pet.); Carr v. State, 715 S.W.2d 419, 421 (Tex.App.-San Antonio 1986, pet. ref'd). Identification information such as name, sex, height, eye color, hair color, and date of birth can also suffice as independent evidence tending to prove identity of a person convicted of a prior offense. Williams, 946 S.W.2d at 895; see also Carr, 715 S.W.2d at 421. Viewing the evidence in the light most favorable to the verdict, based on the fingerprint expert's testimony, the photographs, and the written description, the jury had sufficient evidence to conclude beyond a reasonable doubt that Torres was the same person previously convicted as alleged in the indictment for purposes of enhancement. Torres's third issue is overruled. Based on the foregoing reasons, the judgment of the trial court is affirmed.