Alba v. State
| Decision Date | 07 November 2014 |
| Docket Number | NO. 03-13-00345-CR,03-13-00345-CR |
| Parties | James Alba, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
NO. CR01119, THE HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING
A jury found appellant James Alba guilty of multiple child sexual abuse offenses—five counts of aggravated sexual assault of a child and three counts of sexual assault of a child—for sexually abusing his daughter, R.N.D., throughout her childhood.1 See Tex. Penal Code §§ 22.011, 22.021. The trial court assessed appellant's punishment at confinement for 99 years in the Texas Department of Criminal Justice for each of the aggravated-sexual-assault counts and 20 years for each of the sexual-assault counts, ordering some of the sentences to be servedcumulatively. See id. §§ 12.32, 12.33. On appeal, appellant complains about the denial of his motion to dismiss for lack of a speedy trial, the denial of his motion for continuance, the violation of his right to present a complete defense, the admission of "bolstering" testimony, and the failure of the trial court to conduct a hearing outside the presence of the jury before admitting expert testimony. Finding no reversible error, we affirm the trial court's judgments of conviction for Counts Six, Seven, and Eight. However, through our own review of the record, we have found non-reversible error in the remaining judgments of conviction. We will modify these judgments to correct the error and, as modified, affirm the trial court's judgments of conviction for Counts One, Two, Three, Four, and Five.
DISCUSSION
Speedy Trial
In his first point of error, appellant asserts that he was denied his right to a speedy trial in violation of the federal and state constitutions, and that the trial court erred in denying his motion to dismiss the indictment based on the speedy trial violation. See U.S. Const. amends. VI, XIV; Tex. Const. art. I, § 10.
We analyze a speedy trial claim on an ad hoc basis by applying a fact-specific balancing test. Barker v. Wingo, 407 U.S. 514, 530 (1972); Henson v. State, 407 S.W.3d 764, 767 (Tex. Crim. App. 2013), cert. denied, 134 S. Ct. 934 (2014). Whether raised under the federal or state constitution, we weigh and balance four factors: the length of the delay, the reason for thedelay, the defendant's assertion of his right, and the prejudice inflicted by the delay.2 Barker, 407 U.S. at 530; Henson, 407 S.W.3d at 767. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial; instead, we must weigh the conduct of the prosecution and defendant using a balancing test of the four factors. Barker, 407 U.S. at 530, 533; Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008). The State must satisfy its burden of justifying the length of the delay while the defendant must meet his burden of proving the assertion of the right and showing prejudice. Cantu, 253 S.W.3d at 280. The four factors are related, and we apply them "with common sense and sensitivity to ensure that charges are dismissed only when the evidence shows that a defendant's actual and asserted interest in a speedy trial has been infringed." Id. at 281. Review of the individual factors necessarily involves fact determinations and legal conclusions, but the balancing test as a whole is a purely legal question. Id. at 282. In our review, we apply a bifurcated standard in which we review the trial court's determination of historical facts for an abuse of discretion, but review de novo the court's application of the law to the facts. Id. at 282; Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002).
Length of Delay
The length of the delay is the triggering mechanism for an analysis of the Barker factors. Barker, 407 U.S. at 530; Zamorano, 84 S.W.3d at 648. The length of the delay is measured from the time the defendant is arrested or formally accused. Barker, 407 U.S. at 530; Harris v. State,827 S.W.2d 949, 956 (Tex. Crim. App. 1992). Texas courts have generally held that a delay of eight months or more is "presumptively prejudicial" and will trigger a speedy trial analysis. See Zamorano, 84 S.W.3d at 649 n.26. In this case, appellant was indicted on November 8, 2004 and his jury trial began on April 8, 2013. The delay of eight years and five months is sufficiently lengthy to trigger a speedy trial analysis under Barker.
Reason for Delay
Once the length of time is found to be presumptively prejudicial, the burden of justifying the delay falls on the State. Cantu, 253 S.W.3d at 280. Different weights are assigned to different reasons for delay. Barker, 407 U.S. at 531. A deliberate attempt to delay trial to hamper the defense is weighed heavily against the State. Id.; Zamorano, 84 S.W.3d at 649. More neutral reasons, such as negligence or crowded dockets, are also weighed against the State, but less heavily than deliberate delay. Barker, 407 U.S. at 531; Zamorano, 84 S.W.3d at 649. Valid reasons, such as a missing witness or delay caused by plea negotiations, are not weighed against the State at all. Barker, 407 U.S. at 531; State v. Munoz, 991 S.W.2d 818, 824 (Tex. Crim. App. 1999). Finally, if an accused's own actions constitute the majority of the reason for the delay in trial, this factor weighs against his speedy trial claim. Starks v. State, 266 S.W.3d 605, 611 (Tex. App.—El Paso 2008, no pet.). In fact, delay that is attributable in whole or in part to the defendant may constitute a waiver of the speedy trial claim. See Barker, 407 U.S. at 528-30 (); Munoz, 991 S.W.2d at 822 (citing Barker, 407 U.S. at 528-30); see also Dickey v. Florida, 398 U.S. 30, 48 (1970) (Brennan, J., concurring) ().
There is no evidence of deliberate delay in this case. In fact, the same month that appellant was indicted, the State filed a formal announcement of ready for trial requesting a speedy trial. Following that, the initial delay appears to have been because of a crowded court docket in that the first trial setting on April 25, 2005 was continued by the court. The case was then set for trial on August 15, 2005 and again on October 17, 2005. Both trial settings were continued on appellant's request.3 On May 31, 2006, the parties and the court signed an agreed order of incompetency, and appellant was ordered into a treatment facility. For whatever reason, appellant never reported to the sheriff for transport and was never transported to the treatment facility. The record reflects that a subsequent status hearing set for October 12, 2007 was reset to October 26, 2007. The record does not reflect whether the status hearing was held. As the prosecutor stated at the hearing on appellant's motion to dismiss, after appellant was found to be incompetent, the case "fell off the docket."
The case returned to the court's docket in February 2012 after inquiries about the status of the case were received from legal aid representatives providing housing assistance to appellant. The case was then set for several status hearings, which the court was unable to conduct because appellant was indisposed.4 In April 2012, the parties again agreed that appellant wasincompetent to stand trial, and the court entered a "judgment on uncontested incompetency." A subsequent competency evaluation in May 2012 determined that appellant was competent to stand trial.5 In August 2012, the case was set for trial on October 29, 2012. On the day of trial, appellant filed a Motion to Dismiss for Lack of Speedy Trial. The record does not reflect whether the motion was discussed prior to the start of trial or even brought to the court's attention. The record does reflect, however, that the trial court declared a mistrial after the parties agreed to postpone the trial when appellant kept falling asleep during jury selection.6 The case was reset for trial on March 18, 2013. At a pretrial hearing on February 15, 2013, appellant filed a motion seeking a continuance of the March 18th trial setting, which was denied. At a pretrial hearing on March 1, 2013, the court heard appellant's motion to dismiss for lack of speedy trial and denied themotion. On March 18, 2013, appellant filed another motion for continuance, which was granted. The case was reset for trial on April 8, 2013, at which time appellant was tried before a jury.
While the almost eight-and-a-half-year delay between indictment and trial is presumptively prejudicial, the record shows that the lengthy delay was not due to the actions of the State but rather due in part to the overcrowded docket in the trial court but primarily to appellant's repeated requests for continuances and appellant's incompetence to stand trial. Thus, this factor does not weigh against the State.
Assertion of Right
Appellant filed a Motion to Dismiss for Lack of Speedy Trial seeking dismissal of the indictment on October 29, 2012, almost 8 years after he was indicted. He never asked for a speedy trial. Although a defendant's failure to assert his speedy trial right does not amount to a waiver of that right, failure to assert the right makes it difficult to prove he was denied a speedy trial. Barker, 407 U.S. at 532; Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). A defendant's lack of a timely demand for a speedy trial indicates strongly that he did not really want a speedy trial and that he was not prejudiced by the lack of one. Dragoo, 96 S.W.3d at 314. Furthermore, the longer the delay becomes, the more likely it would be that a defendant who wished a speedy trial would take some action to obtain it. Id. Thus, inaction weighs more heavily against a violation the longer the delay becomes. Id.
Here, appellant did not assert his speedy trial right for nearly 8 years, and even then his only...
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