Nos. 05-03-01538-CR, 05-03-01539-CR, 05-03-01540-CR
Opinion Filed October 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F02-71626-RT, F03-00183T, F03-00182-T. Affirm.
Before Justices O'NEILL, LANG, and LANG-MIERS.
O'NEILL, Justice.
Appellant appeals a conviction for indecency with a child and two convictions for aggravated sexual assault of a child. After finding appellant guilty of the offenses, the trial court assessed punishment at five years' confinement and a $1,500 fine in the indecency case and twelve years' confinement and a $2,000 fine in each of the aggravated sexual assault cases. In seven issues, appellant generally contends (1) his right to a speedy trial was violated, (2) the evidence is factually insufficient to support his convictions, and (3) the current factual sufficiency standard of review is incorrect. For the following reasons, we affirm the trial court's judgments. Appellant's convictions arise out of the sexual abuse of his seven-year-old great niece, D.H. The indictments alleged appellant committed the offenses by (1) touching the child's breasts with the intent to arouse and gratify his sexual desire, (2) causing the contact and penetration of the child's mouth with his sexual organ, and (3) causing the contact and penetration of the child's sexual organ with his hand and finger. At trial, D.H. testified that when she was seven years old appellant started "doing the stuff" to her. The assaults occurred when D.H. was visiting her grandmother with whom appellant lived. D.H. testified appellant had touched her "butt," her "pipita" and her "boobs" with his hand. Using a picture, the child showed she used the word "pipita" to refer to the female genitalia. D.H. specifically testified appellant touched the inside of her "pipita" with his hand. D.H. also testified appellant made her touch his "weenie" with her mouth. April Hickock, an investigator for Child Protective Services (CPS), testified as the outcry witness. Hickcock interviewed D.H. after receiving a referral from her school. D.H. told Hickcock that appellant touched her "chichis, her pompas and her pipita," meaning "her breasts, her vagina, and her butt." D.H. alleged the abuse happened many times. The child, however, denied that appellant penetrated her vagina. Further, the child did not mention anything about oral sex. Later, the child's therapist told Hickcock the child had made allegations of oral sex. Hickock explained that it is not unusual for a child to reveal further details about sexual abuse over time. On cross-examination, Hickcock admitted that the child alleged appellant had assaulted her on the beach, although to Hickock's knowledge the child had never been to the beach with appellant. Felicia Crumedy was D.H.'s therapist. Crumedy testified she saw the child thirty-six times over the period of about one year. D.H. told Crumedy that appellant touched her on the breast, vagina, and butt. D.H. also told Crumedy she had to perform "oral sex" on appellant. Appellant presented the testimony of his mother, his brother, and a friend that he was an honest and hardworking person. Appellant also testified that he had no prior convictions and that he did not commit the offenses. After hearing the evidence, the trial court found appellant guilty in one case of indecency with a child and in two cases of aggravated sexual assault with a child. This appeal followed.
Speedy Trial
In his first three issues, appellant contends the trial court erred in denying his motions to dismiss the indictments because his right to a speedy trial was violated. The United States Constitution guarantees an accused the right to a speedy trial. U.S. Const. amends. VI, XIV, §§ 1. In determining whether a defendant's right to a speedy trial has been violated, we use a balancing test in which we weigh the conduct of both the State and the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); Shaw v. State, 117 S.W.3d 883, 888 (Tex.Crim.App. 2003). In conducting this test, we consider: (1) the length of the delay, (2) the State's reasons for the delay, (3) the defendant's efforts to obtain a speedy trial, and (4) prejudice to the defendant. Barker, 407 U.S. at 530. When this Court reviews a trial court's ruling on a motion to dismiss for want of a speedy trial, we must do so in light of the arguments, information, and evidence that was available to 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 decision if it is supported by the record and is correct under applicable law. Shaw, 117 S.W.2d at 889. The first factor, the length of the delay, is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 313 (1971). We determine whether this delay is sufficient to "trigger" a speedy trial analysis. Doggett v. United States, 505 U.S. 647, 651-52 (1992); Shaw, 117 S.W.3d at 889. Generally, delays approaching one year are sufficient to trigger further inquiry. Dragoo, 96 S.W.3d at 314. If the delay is sufficient to trigger a speedy trial analysis, we consider "the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim." Doggett, 505 U.S. at 652. Here, appellant was indicted on March 6, 2002 for the indecency with a child offense and arrested for that offense on March 8, 2002. Almost a year later, on February 4, 2003, appellant was indicted for the two aggravated sexual assaults. Although appellant was not formally accused in the aggravated sexual assault cases until he was indicted, he asserts we should measure the length of the delay in all the cases from his March 8, 2002 arrest because the charges arise from the "same criminal episode." We will assume, without deciding, the delay should be measured for all offenses from the date of appellant's arrest. Appellant presented the motion to dismiss on September 25, 2003, the day trial began, making the complained-of delay about eighteen and one half months. This delay is sufficient to trigger further speedy trial analysis. Thus, we turn to the reasons for the delay. The State bears the burden of justifying the delay. Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994). In examining the reasons for the delay, we assign different weights to different reasons. Id. at 708. Deliberate attempts to delay the trial to hamper the defense are weighed heavily against the State. Barker, 407 U.S. at 532. On the other hand, more neutral reasons for delay, such as the trial court's docket, are weighed against the State, but not as heavily. Here, the reason for the delay was the trial court's crowded docket. This factor weighs against the State, but not as heavily as deliberate delay. See Barker, 407 U.S. at 531. We now consider appellant's assertion of his right to a speedy trial. A defendant's assertion of his speedy trial right is entitled to strong evidentiary weight. Zamorano v. State, 84 S.W.3d 643, 649 (Tex.Crim.App. 2002). Although a defendant has no duty to bring himself to trial, a defendant's failure to assert the right makes it difficult for him to show he was denied a speedy trial. Id. Here, appellant never requested a speedy trial. Instead, he filed a motion to dismiss for failure to provide a speedy trial on April 28, 2003. He then waited nearly five months before presenting this motion to the trial court. This factor strongly suggests appellant did not really want a speedy trial. See Harris v. State, 827 S.W.2d 949, 957 (Tex.Crim.App. 1992). This factor weighs heavily against appellant. Finally, we consider whether appellant suffered prejudice from the delay. We evaluate this factor in light of the following interests the right to a speedy trial was designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern, and (3) to limit the possibility that the defendant's defense will be impaired. Shaw, 117 S.W.3d at 890. The most serious form of prejudice is the last. Id. Here, the only prejudice appellant alleges is that the delay allowed the State to bring more serious charges and somehow caused the child victim in this case to become more "entrenched" in her position that appellant had sexual assaulted her. Appellant did not raise these arguments to the trial court at the time he presented his motion to the trial court. Nor did appellant present the trial court with any evidence to support his assertions. Therefore, we will not consider them in our review. See Dragoo, 96 S.W.3d at 313. The only prejudice appellant alleged in the trial court was that he was incarcerated from the time of his arrest until the time of trial. However, appellant presented no additional evidence of any particularized anxiety or concern arising from the delay. Appellant's showing of prejudice in this case was slight. See State v. Munoz, 991 S.W.2d 818, 820 (Tex.Crim.App. 1999). Having carefully reviewed and balanced the relevant speedy trial factors, we conclude appellant's right to a speedy trial was not violated. The delay was not caused by any deliberate attempts to hamper appellant's defense. Moreover, appellant's actions suggest he did not really want a speedy trial. Finally, there is no evidence appellant's defense suffered because of any delay. Consequently, we cannot conclude the trial court erred in denying appellant's motion to dismiss. We resolve the first three issues against appellant. In his fourth, fifth, and sixth issues, appellant contends the evidence is factually insufficient to support his convictions. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question is whether, considering all of the evidence in a neutral light, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. April 21, 2004). In performing this review, we give due deference to the fact finder's credibility determinations. Zuniga, at *4; Clewis, 922 S.W.2d at 136. Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, at *7. Appellant does not dispute that the child provided testimony that he committed the offenses as alleged in each case and that the State presented evidence the child told others that he committed the offenses as alleged. Appellant nevertheless asserts the evidence is factually insufficient because the child was not credible. First, appellant directs us to evidence the child had at one point told the CPS investigator that appellant assaulted her at the beach, but there was no evidence to show the child had ever been to the beach with appellant. He also complains that the child failed to tell the CPS investigator about the oral sex. Appellant further asserts the child was not credible because she indicated she was assaulted on three specific occasions, but did not specifically link her allegation of oral sex to any one of these incidents. Finally, appellant suggests that the trial court's failure to find him guilty in a fourth indecency case somehow establishes the child was not truthful. Appellant concludes that the evidence is factually insufficient because he denied committing the offenses and presented testimony from friends and family members that he was an honest and hardworking "model citizen." Thus, he asserts no rational trier of fact could find him guilty beyond a reasonable doubt. We disagree. We have reviewed all the evidence presented. As noted above, the child testified appellant committed the offenses as alleged. Although the child did not tell the CPS investigator about everything that appellant did to her, evidence was presented that this was not unusual for young victims of sexual abuse. Moreover, the child's therapist testified the child told her about the offenses and specifically that appellant forced her to perform oral sex upon him. After reviewing the record as a whole, and giving due deference to the fact finder, we cannot conclude (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, at *7. We resolve issues four, five, and six against appellant. In the seventh issue, appellant asserts the current factual sufficiency standard of review is incorrect in that it gives deference to the fact finder on credibility issues. Appellant acknowledges the standard of review has been established by the court of criminal appeals and that this Court is required to follow it. See Duckworth v. State, 89 S.W.3d 747, 755 (Tex.App.-Dallas 2002, no pet.). Appellant nevertheless requests that we "question" the authority of the court of criminal appeals. Appellant does not request any relief from the judgments in this issue. We conclude it presents nothing to review. We resolve the seventh issue against appellant. We affirm the trial court's judgments.