Westbrook v. State

• Decision Date: 25 August 2021
• Docket Number: 10-19-00119-CR
• Parties: DAVID JOEL WESTBROOK, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

DAVID JOEL WESTBROOK, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-19-00119-CR

Court of Appeals of Texas, Tenth District

August 25, 2021

Do not publish

From the 413th District Court Johnson County, Texas Trial Court No. F50608

Before Chief Justice Gray, Justice Johnson, and Justice Rose ^[1]

MEMORANDUM OPINION

MATT JOHNSON, JUSTICE

A jury found Appellant David Joel Westbrook guilty of two counts of aggravated sexual assault of a child and four counts of indecency with a child by sexual contact. The jury found an enhancement paragraph true and sentenced Westbrook to life in prison on Counts One and Two and to seventy-five years in prison on Counts Three through Six. The sentences were ordered to be served consecutively. Westbrook challenges his convictions in ten issues. We will affirm.

Background

Westbrook is the biological father of M.W. Westbrook and M.W.'s mother never married, although they lived together on and off between separate stints of incarceration. Westbrook was incarcerated when M.W. was born, was released, and was re-incarcerated when M.S. was approximately four years old. When Westbrook was released from prison in August of 2014, he moved in with M.W. and her mother in a house in Cleburne. In February 2015, the family moved to a house in Rio Vista. In April 2015, M.W.'s mother left Westbrook and moved with M.W. to Mount Pleasant. Subsequently, the Department of Family and Protective Services removed M.W. and her sibling from their mother's custody, eventually terminating the mother's parental rights. M.W. met with a therapist on February 5, 2016 and made an outcry of sexual abuse against Westbrook. M.W. reported that the abuse began after Westbrook was released from prison when she was four years old, halted when Westbrook was re-incarcerated, and resumed when she was six or seven years old after Westbrook was once again released from prison.

Westbrook was arrested on August 3, 2016. Westbrook went to trial on December 10, 2018, which ended with a mistrial. A second jury trial commenced on January 14, 2019. Westbrook timely filed a Motion for New Trial and Motion in Arrest of Judgment. Both motions were denied by the trial court. Westbrook remained in custody from the time of his arrest until the judgments were signed on January 18, 2019.

Issues

Westbrook presents the following issues:

(1) Whether the trial court violated his constitutional right to a speedy trial.

(2)- (7) Whether there was legally sufficient evidence to support his convictions.

(8) Whether the trial court erred by overruling his motion for instructed verdict.

(9)- (10) Whether the trial court erred by admitting witness testimony and exhibits.

Discussion

A. Speedy Trial.

In his first issue, Westbrook asserts that the twenty-nine-month delay between his arrest and sentencing violated his rights under the United States Constitution and the Texas Constitution to a speedy trial. Westbrook argues that all of the delays but one were caused by "the State, an overcrowded docket or no reason shown in the record." Westbrook filed one motion for continuance on March 15, 2018.

The Sixth Amendment guarantees a defendant in a criminal prosecution the right to a speedy trial. "The speedy-trial right is amorphous, slippery, and necessarily relative." Rejecting inflexible approaches, the Supreme Court has established a balancing test "in which the conduct of both the prosecution and the defendant are weighed." Courts are to consider the length of delay the reasons for delay, to what extent the defendant has asserted his right, and any prejudice suffered by the defendant.

The length of delay is a double inquiry: A court must consider whether the delay is sufficiently long to even trigger a further analysis under the Barker factors and if it is, then the court must consider to what extent it stretches beyond this triggering length. In assessing the reasons for delay, a court must accord different weights to different reasons, and it must ask "whether the government or the criminal defendant is more to blame for the delay." Deliberate delay to hamper the defense is weighed heavily against the government while more neutral reasons such as negligence or overcrowded courts weigh against the government but less heavily. Delay caused by the defense weighs against the defendant. A defendant has a responsibility to assert his right to a speedy trial. Although a defendant's failure to assert his right is not automatically fatal to a speedy-trial claim, a failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. The prejudice factor should be assessed in light of the interests the right to a speedy trial was designed to protect: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Affirmative proof of particularized prejudice is not essential to every speedy trial claim because "excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify . . . and its importance increases with the length of delay."

Hopper v. State, 520 S.W.3d 915, 923-24 (Tex. Crim. App. 2017) (footnoted citations omitted).

The Texas Constitution likewise provides the accused the right to a speedy trial. Tex. Const. art. 1, § 10. The Court of Criminal Appeals has traditionally analyzed the denial of a speedy trial under state law using the factors outlined in federal law. See Deeb v. State, 815 S.W.2d 692, 704 (Tex. Crim. App. 1991); see also State v. Wei, 447 S.W.3d 549, 553 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd). Westbrook makes no argument that his rights under state law differ from those under federal law.

We review a trial court's ruling on a speedy trial claim under a bifurcated standard. Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008). Legal issues are reviewed de novo while factual findings are reviewed for an abuse of discretion. Id. If a violation of a defendant's right to a speedy trial is established, the only possible remedy is dismissal of the prosecution. See Betterman v. Montana, 578 U.S. 968, __, 136 S.Ct. 1609, 1615, 194 L.Ed.2d 723 (2016) (citing Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973)); see also Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003).

Generally, "delay approaching one year is sufficient to trigger a speedy trial inquiry." Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003) (citing Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). The delay "clock" continues to run even after a defendant's request for a mistrial is granted and a new trial is conducted. See State v. Manley, 220 S.W.3d 116, 122 (Tex. App.-Waco 2007, no pet.) (citing Doggett, 505 U.S. at 647).

Westbrook identifies nothing from the delay that impaired his defense or caused him to suffer more than generalized anxiety or concern, particularly in light of his previous terms of incarceration. Additionally, shortly after his arrest in this case, Westbrook was sentenced to a five-year term of incarceration in the Texas Department of Criminal Justice-Correctional Institutions Division after his ten-year term of probation was revoked. While Westbrook was awaiting trial in this case, he would have been incarcerated anyway as the result of the revocation. Westbrook does not argue that his incarceration in the county jail was more onerous than would have been his incarceration in TDCJ.

The strength of the evidence against Westbrook is significant and clearly sufficient, as will be more fully discussed in Appellant's issues two through seven challenging the sufficiency of the evidence. Westbrook was unable in this issue to direct the Court to anything to suggest a problem caused by the three-year delay in presenting the case or his defense. After our review of the entire record, we find nothing that causes us to question the reliability of Westbrook's trial due to the three-year delay in proceeding to trial. We overrule Issue One.

B. Sufficiency.

In Issues Two through Seven, Westbrook asserts there was insufficient evidence to support his convictions. In Issue Eight, Westbrook asserts that the trial court erred in overruling his motion for an instructed verdict. A complaint regarding the overruling of a motion for instructed verdict is reviewed under a sufficiency analysis. Atnipp v. State, 517 S.W.3d 379, 386 (Tex. App.-Eastland 2017, pet. ref'd); see also Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990) ("A challenge to the trial judge's ruling on a motion for an instructed verdict is in actuality a challenge to the sufficiency of the evidence to support the conviction."). We will address Issue Eight as it relates to the sufficiency of the evidence in conjunction with Issues Two through Seven.

The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as follows:

When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 99 S.Ct. 2781. We may not re-weigh the evidence or substitute our

...