No. 04-06-00755-CR
Delivered and Filed: February 27, 2008. DO NOT PUBLISH.
Appeal from the County Court at Law No. 11, Bexar County, Texas, Trial Court No. 901149, Honorable Jo-Ann De Hoyos, Judge Presiding. Affirmed.
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
SANDEE BRYAN MARION, Justice.
A jury found defendant, Romaldo Maldonado, guilty of driving while intoxicated, and the court assessed punishment at 180 days' confinement, probated to eighteen months probation. Defendant claims (1) his right to speedy trial was violated, (2) the evidence was legally and factually insufficient to support his conviction, (3) his attorney-client privilege was breached, and (4) he was inappropriately subjected to in-court fingerprinting. We affirm.
LEGAL AND FACTUAL SUFFICIENCY
In his second and third issues, defendant contends the evidence is legally and factually insufficient because the two officers at the scene of the one-car accident (1) did not witness him driving the automobile when it crashed, (2) and could not positively identify him in court as the person who was arrested that evening. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999) (same); Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (same). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). In the early hours of October 2, 2004, San Antonio Park Police Officer Jeffrey Glatz was in his patrol car with the windows down when he heard a loud crash. Officer Glatz turned to see a car had just crashed into a light pole; steam was rising from the engine compartment; and the car was badly damaged. Officer Glatz testified defendant was alone and seated behind the steering wheel, and he helped him get out of the car. He testified defendant was unsteady and smelled strongly of alcohol, but defendant denied needing medical care. San Antonio Police Officer Craig Nash also testified defendant smelled strongly of alcohol. Officer Nash testified he attempted a single field sobriety test with defendant, but because defendant was unsteady and nearly fell down, the officer decided to discontinue the tests. He testified he transported defendant to the magistrate's office, where he could be administered a breath test. San Antonio Police Officer J.J. Ruiz testified he administered the breath test to the defendant brought in by Officer Nash. Officer Ruiz identified defendant as the person Nash brought in under suspicion of driving while intoxicated. According to Officer Ruiz, defendant admitted he had been in an automobile accident. Officer Ruiz testified defendant submitted to a breath test, which revealed a blood alcohol concentration (BAC) of .185 at 3:31 a.m. and a .184 at 3:33 a.m., both well in excess of the legal limit for operating a motor vehicle. See Tex. Penal Code § 49.01(2)(B) (Vernon 2003). Fingerprint examiner Robert Jimenez of the Bexar County Sheriff's Office testified fingerprints of defendant taken in court matched fingerprints taken of the defendant on the night he was booked into jail on the night of his arrest. Evidence that an individual is found alone in his wrecked vehicle and seated behind the steering wheel is sufficient circumstantial evidence to show he was the driver of the vehicle. See Perez v. State, 432 S.W.2d 954, 955 (Tex.Crim.App. 1968); Hernandez v. State, 773 S.W.2d 761, 762 (Tex.App.-San Antonio 1989, no pet.). The testimony of officers Glatz, Nash, and Ruiz demonstrated defendant was the same person who was helped from the driver's side of the wrecked car, who was subjected to a field sobriety test, and who submitted to fingerprinting and breath tests at the police station on October 2, 2004. The testimony of the fingerprint examiner established that defendant was the person charged with driving while intoxicated on October 2, 2004. We conclude the evidence is legally and factually sufficient to support the jury's verdict. SPEEDY TRIAL
In his first issue, defendant argues he was denied his constitutional right to a speedy trial. In reviewing a trial court's decision on a speedy trial motion, we review the trial court's determination of the historical facts under an abuse of discretion standard and conduct a de novo review of the legal components by independently engaging in the balancing test set out in Barker v. Wingo, 407 U.S. 514, 530 (1972); see Kelly v. State, 163 S.W.3d 722, 726 (Tex.Crim.App. 2005); Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App. 1997). Barker requires that we balance the following four factors: (1) length of the delay; (2) reasons for the delay; (3) defendant's assertion of the speedy trial right; and (4) prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530; Kelly, 163 S.W.3d at 726. In conducting the balancing test, no single factor is determinative and the conduct of both the prosecutor and the defendant are to be weighed. See Barker, 407 U.S. at 530, 533; Munoz v. State, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999). A. Length of Delay
The length of the delay is the triggering mechanism for an analysis under Barker. Barker, 407 U.S. at 530. The length of the delay is measured from the time the defendant is arrested or formally accused to the defendant's trial. See 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 v. State, 84 S.W.3d 643, 649 (Tex.Crim.App. 2002) (citing Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992)). Here, nearly two years elapsed between defendant's arrest on October 2, 2004 and the commencement of trial on September 27, 2006. This delay is sufficient to trigger a speedy trial analysis under Barker. B. Reasons for the Delay
Once it has been determined that a presumptively prejudicial delay has occurred, the State bears the initial burden of providing a justification for the delay. Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994); State v. Rangel, 980 S.W.2d 840, 843 (Tex.App.-San Antonio 1998, no pet.). Different reasons for the delay are assigned different weights: an intentional delay for tactical reasons is weighed heavily against the State; a neutral reason, such as overcrowded courts, is weighed less heavily against the State; a valid reason is not weighed against the State at all; and delay attributable to the defendant may constitute a waiver of the speedy trial claim. Munoz, 991 S.W.2d at 822. Here, defendant's case was reset for pre-trial hearings and jury trial six times from February 2, 2005 to September 28, 2006. The docket sheet indicates four resets were made because the court was involved with another trial, but no explanation for the other resets was provided. We conclude this factor weighs against the State, but not heavily because there is no evidence the State attempted to deliberately delay the trial. See Dragoo v. State, 96 S.W.3d 308, 314 (Tex.Crim.App. 2003). C. Assertion of the Right
The third Barker factor requires a determination of whether the defendant asserted his right to a speedy trial. Barker, 407 U.S. at 532; see also Munoz, 991 S.W.2d at 825 (placing the burden on the defendant to assert or demand his right to a speedy trial). The defendant's assertion of that right is entitled to strong evidentiary weight when determining whether the defendant was deprived of his right to a speedy trial. Barker, 407 U.S. at 531-32; Zamorano, 84 S.W.3d at 651. Although the defendant's failure to timely seek a speedy trial does not amount to a waiver of the right, such failure makes it difficult for a defendant to prevail on a speedy trial claim. See Shaw v. State, 117 S.W.3d 883, 890 (Tex.Crim.App. 2003) (citing Barker, 407 U.S. at 532). Defendant filed his motion for speedy trial on March 7, 2005, demanding a trial setting. He also filed various evidentiary motions as well as a motion to have an interpreter appointed for trial. Defendant appeared at each setting with his attorney. Defendant filed his motion to dismiss on August 28, 2006, the date of the fifth reset. We conclude that, under these facts, defendant asserted his right to a speedy trial, and, therefore, factor three weighs in his favor. D. Prejudice
The final factor is prejudice to the defendant, which should be assessed in light of the interests of the defendant that the right to a speedy trial was designed to protect. Barker, 407 U.S. at 532; Munoz, 991 S.W.2d at 826. These interests are: (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. Barker, 407 U.S. at 532; Munoz, 991 S.W.2d at 826. 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)). Defendant's only incarceration occurred on the night of his arrest. Thus, he endured no oppressive pretrial incarceration. Defendant testified his defense was impaired by the delay because one of his witnesses has been deported to Mexico and is therefore unavailable. Before defendant's testimony will be considered some evidence of prejudice, however, defendant must show the witness was unavailable at trial, his testimony might have been relevant and material to the defense, and that he used due diligence to locate and produce the witness for trial. See Harris v. State, 489 S.W.2d 303, 308 (Tex.Crim.App. 1973); Marquez, 165 S.W.3d at 750. When asked what his witness would have testified to, defendant responded "Maybe I — that I didn't drink too much." Defendant's assertion that the witness "maybe" would have testified he "didn't drink too much" is speculative. See Schenekl v. State, 996 S.W.2d 305, 313 (Tex.App.-Fort Worth 1999), aff'd, 30 S.W.3d 412 (Tex.Crim.App. 2000). Therefore, defendant has not shown he was prejudiced by the loss of a witness. Defendant also testified his memory of that evening has since faded. A defendant's bare assertion that he cannot remember facts related to his arrest or that his memory has faded with time is not enough to show impairment of his defense. See Munoz, 991 S.W.2d at 829; State v. Guerrero, 110 S.W.3d 155, 162 (Tex.App.-San Antonio 2003, no pet.). Barker requires a defendant to show that memory lapses are in some way significant to the trial's outcome. Id. Here, defendant has made no such showing. Id. Finally, defendant testified that court appearances and resets caused him to miss work and lose "status" with his employer, which caused him anxiety and concern. Economic harm may represent prejudice to the defendant. See Zamorano, 84 S.W.3d at 654 (holding defendant suffered prejudice where his uncontroverted testimony demonstrated he lost twelve days of work at $120 per day and he was required to report to his bonding company, in person, weekly for the four years he awaited trial.); State v. Martinez, No. 04-01-00323, 2002 WL 112544, at *3 (Tex.App.-San Antonio Jan. 30, 2002, pet. ref'd) (mem. op., not designated for publication) (holding defendant suffered prejudice when delay in trial prevented law school graduate from receiving license). Here, defendant testified he missed work to make court appearances, and that he had "problems" with his supervisor. However, he offered the court no estimation of his financial losses or any other evidence by which the court could quantify his loss. Defendant did not explain his loss of "status" at work or the nature of his "problems" with his boss. Based on this record, we conclude defendant suffered "no serious prejudice beyond that which ensued from the ordinary and inevitable delay." Ex parte McKenzie, 491 S.W.2d at 123. Because his showing of prejudice is minimal, this factor should be weighed in favor of the State. See Munoz, 991 S.W.2d at 829. E. Balancing
In the twenty-three months from defendant's arrest until his trial, defendant's case was reset six times. We conclude defendant's motion for speedy trial and subsequent appearances in court were sufficient to demonstrate he asserted his right to speedy trial. However, we also conclude defendant suffered only minimal prejudice because he did not demonstrate his defense was harmed or that he otherwise suffered any great prejudice by the delay. Thus, we conclude defendant's right to speedy trial was not violated. IN-COURT FINGERPRINTING
In his fifth issue, defendant complains the court erred when it ordered him to submit to in-court fingerprinting. At trial, the State submitted a motion to require defendant to submit to fingerprinting for the purpose of proving the defendant in the courtroom was the same person officers arrested and fingerprinted on the night of the arrest. Defendant complains he was denied his "constitutional right to due process and effective assistance of counsel." Defendant does not indicate whether his claims rely on federal or state constitutional rights. In addition, defendant fails to cite a rule, case, or statute to support his complaint. Under the Texas Rules of Appellate Procedure, an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). Because defendant has inadequately briefed this complaint, nothing is presented for our review. Id.; Fredonia State Bank v. General Am. Life Ins., 881 S.W.2d 279, 284-85 (Tex. 1994) (appellate court has discretion to waive points of error due to inadequate briefing). ATTORNEY-CLIENT PRIVILEGE
In his fourth issue, defendant complains his attorney-client privilege was violated during the trial when an expert witness who defendant previously sought to engage to testify on his behalf instead was allowed to testify for the State. Defense counsel had contacted fingerprint expert Vernon Ginn, a civilian employee of the San Antonio Police Department. Ginn, however, declined to testify for the defense. At trial, when the State called Ginn to testify, defendant objected on the basis that defendant had already revealed his trial strategy to Ginn, and, therefore, Ginn should be precluded from testifying for the State. Defense counsel related to the court that she was "uncomfortable" with certain aspects of what she anticipated the expert might say regarding "theories of our case and theories of our defense." When the trial court stated the expert was "not going to be asked those questions, [the State is] just going to ask him are these the same prints," defendant responded "[a]s long as they limit it to that." We conclude defendant waived any error by acquiescing to the court's assurance Ginn's testimony would be limited. See Salinas v. State, 88 S.W.3d 677, 683 (Tex.App.-San Antonio 2002, no pet.) (any error waived by defense counsel's acquiescence in court's decision). Thus, the issue was not preserved for our review. CONCLUSION
We overrule defendant's issues on appeal and affirm the trial court's judgment.