Pizzo v. State
| Decision Date | 10 March 2017 |
| Docket Number | NO. 03-14-00701-CR,03-14-00701-CR |
| Parties | Barry Pizzo, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
NO. CR2013-146, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
A jury convicted appellant Barry Pizzo of two counts of tampering with physical evidence, see Tex. Penal Code § 37.09, and assessed his punishment, enhanced pursuant to the habitual offender provision of the Texas Penal Code, at confinement for life in the Texas Department of Criminal Justice, see id. § 12.42(d). In twenty-five points of error, appellant raises arguments addressing the legal sufficiency of the evidence to sustain his convictions, the jury charge, venue, alleged ineffective assistance of counsel, the right to a speedy trial, competency to stand trial, the right to self-representation, the right to counsel of choice, and the trial court's decision to have him gagged during the punishment phase of the trial. For the following reasons, we affirm the judgments of conviction.
BACKGROUND
The jury heard evidence that appellant, who was 54 years old at the time, met "Irene Wright" and her mother in May 2012 after they found his dog and returned it to his house.1 Appellant invited them inside, showed them his other dogs, and invited Irene to come back. Irene, who was 13 years old at the time, returned to appellant's house on numerous occasions, sometimes alone, until December 2012. Appellant's former girlfriend and others lived at the house during this time period. During visits by Irene to appellant's house, appellant admitted that he photographed and took videos of her, including photographing her on his bed, massaged and played with her hair, and watched movies with her. According to Irene's testimony at trial, she watched movies that contained nudity with appellant at his house, and, on her last visit to his house, appellant kissed her neck while they were alone in the upstairs "movie" room.2
The jury also heard evidence that the New Braunfels Police Department (NBPD) began investigating appellant and his relationship with Irene at the beginning of December 2012 when appellant's neighbor reported to a police officer that she had concerns about the appropriateness of a relationship between appellant and a minor girl. The neighbor told the police officer that appellant's former girlfriend had expressed concerns to her about the relationship between appellant and the girl, but the neighbor was unable to provide the girl's name or address. A NBPD detective was assigned the case, and his investigation included following up in theneighborhood by speaking with residents to try to identify the girl. After hearing about the investigation, Irene's mother contacted the police, and Irene was interviewed several times between February 7 and 13, 2013. As part of the investigation, the police executed a search warrant of appellant's house around 5:00 a.m. on February 15, 2013. By that time, appellant's former girlfriend was no longer living at the house.
Appellant agreed to speak with NBPD detectives at the time that the search warrant was executed, and he was transported to the police station for the interview. During the videotaped interview, appellant talked about his past criminal history and his relationship with Irene and other minor girls. He admitted that he had photographed and videoed Irene and that, "once [he] heard [that he was] under investigation," he deleted pictures and videos of her from his cell phone. He explained that it was not in his "best interest" to keep them but denied any inappropriate conduct with Irene or that the pictures or videos contained inappropriate content. According to appellant, Irene was fully clothed and the videos were of her telling stories that she was writing. Later in the interview, appellant also said that he deleted the pictures and videos before he knew that he was being investigated and that he deleted them because of his cell phone's storage capacity. At the conclusion of the interview, appellant left the police station but, when he returned later to pick up his cell phone, he was arrested for parole violations.
Appellant remained in jail and was indicted on April 10, 2013, for two counts of tampering with physical evidence: one count as to pictures of Irene and the other one as to a video of Irene. Appellant entered a plea of not guilty, and the case was tried before a jury from September 29 to October 7, 2014. The State's witnesses included detectives with the NBPD involved in theinvestigation, appellant's neighbor who made the initial report to the police, Irene, her sister, and her mother. The detectives testified about the timing and scope of their investigation, including the forensic download of appellant's cell phone, the deletion of pictures and videos from appellant's phone, the search of appellant's house, appellant's criminal history, and the detectives' interview of appellant on the day that the search warrant was executed. The State's exhibits included reports from the forensic download of appellant's cell phone, the video recording of the detectives' interview of appellant on the day of the search warrant, and photographs and other items obtained during the search of appellant's house.
Appellant's neighbor testified about her conversations with the police and her subsequent conversation with appellant in which she told him about the nature of the police's investigation. Irene, her mother, and sister all testified about Irene's relationship and contact with appellant. Irene testified that appellant took pictures of her on "over 15" different occasions and videos of her telling stories when she was at his house and that she did not go back to his house after the incident in December 2012. Irene testified that, on that day in December, appellant's former girlfriend was not there and, while she and appellant were in his movie room, he moved her hair and kissed her neck, making "enjoyed it noises." Irene also testified that, at other times when she was at his house, appellant gave her money, they watched movies that contained nudity, appellant would touch her hair, he "would go through [her] hair with his fingers," and "[t]here was one time that he would rub both his hands down [her] back and possibly touched the very edge of [her] breast," but she answered "no" when asked if there was anything that she thought was inappropriate in the pictures that appellant took of her.
The defense's witnesses included appellant, his former girlfriend who initially raised concerns about appellant's relationship with Irene, some of the investigating detectives, other women who had relationships with appellant, and his parole officer. Pizzo testified about his prior criminal history, including his past incarcerations, his relationships with Irene and other girls, and his hobbies, including photography. His criminal history included convictions for automobile theft, aggravated robbery—where he "ended up disarming the police officer" and put a gun to the officer's head—and charges of indecency with a child by contact.3 Based on his past prison time, appellant explained that he would not risk his freedom to attempt to establish a sexual relationship with Irene and denied any inappropriate conduct toward her.
The jury found appellant guilty of both counts of tampering with physical evidence. After the punishment phase of the trial, the jury found the enhancement paragraphs true and assessed punishment at confinement for life. The trial court entered judgments in accordance with the jury's verdict. Appellant thereafter filed a motion for new trial, which was denied. This appeal followed.
ANALYSIS
Speedy Trial
In his first point of error, appellant contends that the trial court erred in refusing to set aside the indictment "due to Appellant being denied a speedy trial under federal and state constitutions and state law." See U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 1.05.
Factors to be weighed in determining whether a defendant has been denied his federal and state constitutional right to a speedy trial include: (1) length of the delay, measured from the time the defendant is arrested or formally accused; (2) reasons for the delay, (3) the defendant's assertion of the right to a speedy trial, and (4) prejudice to the defendant resulting from the delay. See Barker v. Wingo, 407 U.S. 514, 530 (1972); Shaw v. State, 117 S.W.3d 883, 888-89 (Tex. Crim. App. 2003). "No single factor is necessary or sufficient to establish a violation of the defendant's right to a speedy trial." Shaw, 117 S.W.3d at 889 (citing Wingo, 407 U.S. at 533). In reviewing the trial court's ruling on a speedy trial claim, "we apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components." Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)).
To support his position that he was denied a speedy trial, appellant focuses on the length of delay between his arrest and the trial, settings before the September 2014 setting in which his case was not reached, one of his attorney's request at a pre-trial hearing in April 2014 for a trial setting and her statement that "[we] also move for speedy trial," and alleged prejudice to him by the delay. Appellant also filed a motion for speedy trial on September 19, 2014, moving that the trial be held on September 29, 2014. In the motion, appellant alleged that he lost his job, income, and his residence and that he "suffered pretrial anxiety due to continuous incarceration."
Appellant was arrested in February 2013, indicted for tampering with physical evidence in April 2013, and the jury trial began on September 29, 2014. Based on this length of delay between the formal accusation against appellant and the...
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