No. 05-03-00705-CR.
Opinion issued: April 22, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-01322-KU. Affirmed.
Before Justices MORRIS, FITZGERALD, and LANG-MIERS.
Opinion By Justice JOSEPH B. MORRIS.
In this case, Javier Munoz Deavila challenges his murder conviction. He complains in six issues that the evidence against him is legally and factually insufficient, that the trial court erred by excluding certain evidence, and that he was denied his right to a speedy trial. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
Factual Background
Jennifer Guajardo was the common-law wife of the deceased, Lorenzo Figueroa. In the early morning hours on the day Figueroa was shot, appellant knocked on the door of the apartment Guajardo and Figueroa shared. Guajardo answered the door while Figueroa stayed in the bedroom. Appellant asked for Figueroa, and Guajardo told him he was not there. Eventually, Figueroa came out of the bedroom and allowed appellant to come inside. Guajardo went back to the bedroom. She heard Figueroa ask appellant to leave. Appellant refused. Figueroa finally convinced appellant to buy some cigarettes. He came back to the bedroom for some money, gave it to appellant, then locked the door after appellant left for the cigarettes. Approximately fifteen minutes later, appellant and Armando Nava knocked on the door. Just after Figueroa answered the door, Guajardo heard him call her name. It sounded to her like someone was hitting Figueroa or covering his mouth. She went to the living room and saw cigarettes on the floor. The door was half open. She went to the door and saw appellant and Nava fighting Figueroa outside the doorway. Appellant was dressed only in shorts, and Guajardo testified he was not carrying a gun. As the men struggled against the burglar bars of a nearby apartment, Guajardo saw Figueroa hit one of the men's arms against the bars. A gun fell out of one of the men's hands, and appellant picked it up. Appellant and Nava dragged Figueroa away, struggling with him. They then turned a corner and moved out of Guajardo's view. Only two to three seconds after they turned the corner, Guajardo heard a shot. Afterward, it was silent, then Figueroa called to Guajardo. When she got to him, appellant and Nava had fled. Figueroa was on the ground. He told Guajardo he had been shot. The bullet had entered his right midback. It left him a quadriplegic. Guajardo acknowledged that Figueroa used illegal drugs before the shooting and owned pocketknives. She denied that the knife found at the shooting scene belonged to Figueroa. No blood was detected on the knife in a forensic analysis. Guajardo also denied ever seeing the gun used during the shooting before that morning. Appellant was the last person she saw with a weapon before Figueroa was shot. Guajardo testified that roughly two weeks before the shooting, Figueroa and appellant were involved in a fist fight because Figueroa suspected that appellant was having an affair with Guajardo. Guajardo also testified that, before the shooting, Figueroa owed appellant $300 and was not planning on paying him back. Figueroa died eight months after he was shot. Blood clots in his lungs, due to immobility from the quadriplegia, eventually resulted in his death. At the time of his death, Figueroa had stopped doing physical therapy and was using illegal drugs. His blood contained evidence of cocaine but no evidence of the blood thinner originally prescribed at the hospital where he was treated. The medical examiner testified that cocaine does not cause increased blood clotting. He stated that, in general, exercise or therapy helps an immobile person avoid blood clots. Discussion
In his first and second issues, appellant complains the evidence against him is legally and factually insufficient to support his conviction because the State failed to prove he committed the murder. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000). A person is criminally responsible as a party to an offense if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). Appellant argues that the State offered no eyewitness testimony about the actual shooting. He further argues the record contains no physical evidence showing the facts of the actual shooting. Thus, appellant contends, the lack of evidence "leaves open the possibility that the shooting was done in self-defense or was the result of involuntary conduct on the part of the shooter." He also contends the evidence fails to show that Nava was responsible for the shooting or that he acted as a party with Nava in committing the murder. Despite appellant's arguments, Guajardo testified that appellant and Nava together attacked Figueroa. Figueroa tried to call to her, but something muffled his voice. Guajardo watched appellant and Nava drag her unarmed husband away. She watched appellant pick up a gun that she did not recognize. And two to three seconds after she lost sight of the men, she heard a gunshot. When she got to her husband, appellant and Nava had already fled. After examining the evidence under the appropriate standards, we conclude it is legally and factually sufficient to support appellant's conviction as a principal or a party to the offense. We resolve appellant's first two issues against him. In his next two issues, appellant contends the evidence is legally and factually insufficient because his conduct did not "cause" Figueroa's death. A person is criminally responsible for a result if the result "would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." Id. § 6.04(a). If the concurrent cause "is clearly sufficient, by itself, to produce the result and the defendant's conduct, by itself, is clearly insufficient, then the defendant cannot be convicted." Robbins v. State, 717 S.W.2d 348, 351 (Tex.Crim.App. 1986). Appellant does not dispute the fact that Figueroa's death resulted from his immobility. He contends, however, that Figueroa's failure to continue physical therapy, use of illegal drugs, and apparent discontinuation of his blood thinning drug constituted a "concurrent cause" that was "clearly sufficient to cause his death." We disagree. Although these factors may have contributed in some way to the blood clots that resulted in Figueroa's death, had Figueroa never been shot by appellant or Nava, physical therapy and blood thinning medication would have been unnecessary. The medical examiner testified that the cocaine in appellant's system did not increase Figueroa's risk of blood clots. But for Figueroa's quadriplegia caused by the shooting, he would not have died. The evidence is legally and factually sufficient to support appellant's conviction on this matter. We resolve appellant's third and fourth issues against him. In his fifth issue, appellant complains the trial court erred by excluding evidence of Figueroa's previous violent acts against people other than appellant or Nava. At trial, defense counsel attempted to put on evidence of an assault offense, a resisting arrest offense, and a resisting search or transportation offense. Defense counsel argued that the evidence "would show a disposition for Mr. Figueroa to be an assaultive person." The trial court sustained the State's relevance objection. We review a trial court's decision to exclude evidence under an abuse of discretion standard. See Tear v. State, 74 S.W.3d 555, 558 (Tex. App.-Dallas 2002, pet. ref'd). If the trial court's decision to exclude evidence is correct based on any theory of law applicable to the case, we must conclude the court did not abuse its discretion. See Knisley v. State, 81 S.W.3d 478, 481 (Tex. App.-Dallas 2002, pet. ref'd). Appellant contends Figueroa's previous violent acts were probative of whether he was, in fact, the first aggressor in the shooting. Putting aside the issue of whether appellant had raised the predicate of self-defense at the time he attempted to offer these offenses into evidence, he could not offer them to show that Figueroa was a violent man generally. When a defendant claims that the deceased was the first aggressor and the defendant acted in self-defense, previous specific acts of violence relevant to the ultimate confrontation may be offered to show the deceased's state of mind, intent, or motive. See Torres v. State, 71 S.W.3d 758, 761 (Tex.Crim.App. 2002). As long as the offered violent acts explain the outwardly aggressive conduct of the deceased at the time of the killing, "and in a manner other than demonstrating character conformity only," evidence of the acts may be admitted even though those acts were not directed against the defendant. Id. at 762. Here, appellant offered the previous violent acts by Figueroa not to show Figueroa's state of mind, intent, or motive when he was shot. Rather, the acts were offered specifically to "show a disposition for Mr. Figueroa to be an assaultive person." Appellant offered the previous violent acts only for the purpose of demonstrating that Figueroa had acted in conformity with his violent character. Admitting the previous violent acts on this basis would have violated Texas Rule of Evidence 404(b). See Tex. R. Evid. 404(b); see also Tate v. State, 981 S.W.2d 189, 192-93 (Tex.Crim.App. 1998). The trial court, therefore, did not abuse its discretion in refusing to admit the violent acts into evidence. We resolve appellant's third issue against him. In his final issue, appellant complains he was denied his right to a speedy trial under the United States Constitution. We review the trial court's decision on a federal speedy trial claim in light of the arguments, information, and evidence before the trial court at the time it ruled. Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). We must uphold the trial court's ruling if it is supported by the record and is correct under the applicable law. Shaw v. State, 117 S.W.3d 883, 889 (Tex.Crim. App. 2003). In determining whether a defendant was denied his right to a speedy trial, a court must balance the conduct of both the State and the defendant. The factors to be weighed include, but are not necessarily limited to, the length of the delay, the State's reasons for the delay, the defendant's effort to obtain a speedy trial, and the prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530 (1972). The first factor, length of delay, is measured from the time the defendant is arrested or formally accused. In general, a delay approaching one year is sufficient to trigger a speedy trial inquiry. Shaw, 117 S.W.3d at 889. Here, the State acknowledges that the twenty-one month delay in appellant's case is sufficient to trigger an inquiry but argues that because the delay "stretched only nine months beyond the minimum needed to trigger the inquiry," the factor should not weigh heavily in favor of finding a speedy trial violation. This first factor thus triggers the rest and weighs somewhat in favor of finding a violation of appellant's right to a speedy trial. We next consider the reason for the delay. In this case, the record shows the State never announced "not ready" for trial. Appellant and the State agreed to pass the case on thirteen occasions after appellant's arrest and before appellant's counsel filed a motion for speedy trial. Appellant filed his pro se motion for a speedy trial after he had already agreed to pass the case ten times. Moreover, although appellant contended in his pro se motion that he was "hereby placing the court[,] prosecution and Defense Counsel on notice that the defendant is not authorizing any type of continuance," the record contains two pass sheets specifically initialed by him after the filing of the pro se motion, passing the case for a jury trial. The State offered no explanation for why the case was delayed. This factor weighs slightly in favor of finding a violation of appellant's right to a speedy trial. See Ervin v. State, No. 01-00-01261-CR, 2002 WL 537964, at *2 (Tex. App.-Houston [1st Dist.] 2002, no pet.). The defendant's assertion of the right is the third factor we consider. A defendant's failure to seek a speedy trial makes it "difficult" for him to prevail on a speedy trial claim on appeal. Shaw, 117 S.W.3d at 890. The longer the delay lasts, the more likely it is that a defendant who really wanted a speedy trial would have taken some action to obtain one. Id. Appellant did not assert his right to a speedy trial until nine months after his arrest, when he filed his pro se motion for speedy trial. Afterward, he continued to agree to pass the case until his counsel filed a motion for continuance four days before trial. Counsel did not file a motion to dismiss for speedy trial reasons and get a hearing until the date appellant's trial began. In addition, appellant's pro se motion for a speedy trial was filed with two other documents requesting that the indictment against him be dismissed. In the motion for speedy trial filed by appellant's trial counsel, appellant requested the court to dismiss the indictment. Although a motion to dismiss may notify the State that a defendant desires a speedy trial, the defendant's "motivation in asking for a dismissal rather than a prompt trial is clearly relevant, and may sometimes attenuate the strength of his claim." Ervin, 2002 WL at *2 (citing Phillips v. State, 650 S.W.2d 396 (Tex.Crim.App. 1983)). This factor weighs against finding a violation of appellant's right to a speedy trial. The last factor we consider is prejudice to the defendant resulting from the delay. We must consider the interests that the speedy trial right was intended to protect: (1) prevention of oppressive pretrial incarceration, (2) minimizing the defendant's anxiety and concern, and (3) limiting the possibility that the defendant's defense will be impaired. The third interest is the most serious. See Shaw, 117 S.W.3d at 890. Affirmative proof of prejudice is not essential because excessive delay "presumptively compromises the reliability of a trial in ways that neither party can prove or even identify." Id. This presumption of prejudice, however, is mitigated by the defendant's acquiescence in the delay. Id. At trial, appellant's counsel pointed out that since appellant's arrest, the case had been re-indicted two different times in twenty-one months. Counsel argued, "There's been substantial delay here that's acted as a prejudice towards the defendant, been incarcerated the entire time, asking the Court to dismiss that because of the constitutional involvement and there are areas there that require such a dismissal." Appellant now argues on appeal that the delay prevented him from being able to call Armando Nava as a witness, but he made no such argument at trial, so we will not consider it. See Dragoo, 96 S.W.3d at 313 (holding appellate court must review speedy trial claim based on arguments, information, and evidence before trial court when it ruled). Appellant was incarcerated during the twenty-one months from his arrest to his trial. This length of incarceration was oppressive. See State v. Munoz, 991 S.W.2d 818, 828 (Tex.Crim. App. 1999). Trial counsel did not make any argument to the court regarding whether the delay had caused appellant any unusual anxiety or concern. We presume, therefore, that appellant experienced the "level normally associated with being charged with [murder]." See Shaw, 117 S.W.3d at 890. There is nothing in the record showing that appellant's defense was impaired by the delay. The record indicates appellant agreed to passes in the case "for announcement[,] for investigation, for jury trial." Days before trial, appellant requested a continuance. Throughout the process, the State never announced not ready. On this record, we conclude the prejudice caused by the delay was minimal. This factor weighs against finding a violation of appellant's right to a speedy trial. Balancing the four factors together, we conclude the record does not show a violation of appellant's right to a speedy trial. See Meyer v. State, 27 S.W.3d 644, 651 (Tex. App.-Waco 2000, pet. ref'd). We resolve appellant's sixth issue against him. We affirm the trial court's judgment.