No. 05-08-01049-CR
Opinion filed January 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F05-00065-P.
Before Justices MORRIS, MOSELEY, and LANG.
Opinion By Justice MOSELEY.
A jury convicted Jerry Dwight Blaney of the aggravated sexual assault of his daughter, C.B., who was eleven years old at the time of the offense. Appellant pleaded true to an enhancement paragraph. The jury assessed punishment of life imprisonment and a $10,000 fine. Appellant brings three issues on appeal: the trial court erred by overruling his motion to dismiss based on his right to a speedy trial; his arrest warrant was "deactivated," resulting in a void indictment and conviction; and he was denied effective assistance of counsel. For the reasons that follow, we resolve appellant's issues against him and affirm the trial court's judgment.
I. BACKGROUND
The testimony established that appellant and P.B. married in March 1985; their daughter C.B.-the complainant-was born October 13, 1985. Appellant left the family two months after C.B. was born, and he and P.B. divorced in January 1986. He returned for a short visit when C.B. was about five years old. He returned again in 1995, when C.B. was nine or ten years old. He and P.B. remarried in April 1995, and appellant lived with P.B., C.B., and P.B.'s parents. Appellant and P.B. were divorced again in 1997, and appellant moved out. C.B. made an outcry against appellant in 2004. The grand jury issued an indictment on January 21, 2005, and it was filed with the court on January 25, 2005. The indictment (as amended) alleged that, on or about December 31, 1996, appellant intentionally and knowingly caused the contact and penetration of C.B.'s anus with appellant's sexual organ, without her consent, and she was younger than fourteen years at the time of the offense. The trial occurred in 2008, when C.B. was twenty-two years old. C.B. described former incidents-two involving oral sex and two involving anal sex-between her and appellant taking place during the time appellant lived in the home. II. SPEEDY TRIAL
Appellant filed a Motion to Dismiss for Denial of Constitutional Right to Speedy Trial, raising both federal and state constitutional arguments. After a hearing, the trial court orally denied the motion. In his first issue, appellant contends the trial court erred by denying this motion to dismiss. A. Applicable Law and Standard of Review
The Sixth Amendment to the United States Constitution guarantees the accused's right to a speedy trial. Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002); see U.S. Const. amend. VI. In Barker v. Wingo, 407 U.S. 514, 530 (1972), the Supreme Court analyzed the federal constitutional question in terms of four specific factors: (1) whether delay before trial was uncommonly long; (2) whether the government or the criminal defendant was more to blame for that delay; (3) whether, in due course, the defendant asserted his right to a speedy trial; and (4) whether he suffered prejudice as the delay's result. Under Barker, courts must first weigh the strength of each of the above factors and then balance their relative weights in light of the conduct of both the prosecution and the defendant. See Zamorano, 84 S.W.3d at 648. None of the four factors is either a necessary or sufficient condition to the finding of a deprivation of the right to speedy trial. Id. Instead, they are related factors, which must be considered together along with any other relevant circumstances. Id. No one factor possesses "talismanic qualities," thus courts must engage in a difficult and sensitive balancing process in each individual case. Id. at 648 (quoting Barker, 407 U.S. at 533). In addition, article I, section 10 of the Texas Constitution guarantees the accused in all criminal prosecutions the right to a speedy public trial. Id. at 647; See Tex. Const. art. I, § 10. This right exists independently of the federal guarantee, but Texas courts have traditionally analyzed claims of a denial of the state speedy trial right under the factors established in Barker. See Zamorano, 84 S.W.3d at 647-48. In reviewing the trial court's ruling on an appellant's federal constitutional 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. Id. at 648. We review all the evidence in the light most favorable to the trial court's ultimate ruling. Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008). Because the trial court ruled against appellant's speedy trial claim, we must presume the trial court resolved any disputed fact issues in the State's favor, and we must also defer to the implied findings of fact that the record supports. See Zamorano, 84 S.W.3d at 648. B. Discussion
1. Length of Delay The length of the delay between an initial charge and trial (or the defendant's demand for a speedy trial) acts as a "triggering mechanism." See id. Unless the delay is presumptively prejudicial, courts need not inquire into the other three factors. See id. The State acknowledges, and we agree, that a thirty-eight-month delay between the issuance of the indictment on January 25, 2005, and the March 31, 2008 hearing on his speedy trial motion was sufficiently lengthy to trigger analysis of the other Barker factors. See id. at 649 (two-year-and-ten-month delay between arrest and hearing on speedy trial motion triggers Barker analysis). This factor weighs heavily against the State. See id. 2. Reasons for Delay Related to the length of delay is the reason the government assigns to justify the delay. Id. We assign different weights to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the State. Id. A more neutral reason, such as negligence or overcrowded courts, should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the State rather than with the defendant. Id. In the absence of an assigned reason for the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice the defense nor a valid reason for the delay. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). Turning to the record before us, when the indictment in this case was issued in January 2005, appellant was in custody in Oregon and had been since his arrest in August 2004, on a burglary charge. Appellant was informed on January 25, 2005, of the Texas charge in this case. On May 5, 2005, appellant was convicted of burglary in Oregon and sentenced to thirty-eight months' imprisonment. (Appellant was sent to Oregon state prison on May 10, 2005.) Thus, the period of time between the filing of the indictment on January 25, 2005, and appellant's conviction on May 5, 2005, counts against appellant because that part of the delay was the result of his own criminal conduct. Appellant signed a waiver of extradition on May 4, 2005. Appellant was first presented with paperwork concerning the Interstate Agreement on Detainers (IAD) on July 7, 2005, but there is evidence appellant refused to sign that paperwork then. Appellant testified he received a letter from an assistant district attorney in late 2005 or early 2006 saying "they didn't have to deal with [appellant] in any way, shape[,] or form, and it had some statutes with it"; he testified he no longer had the letter. On March 30, 2006, appellant wrote the Dallas County Sheriff's Department and the Dallas County District Attorney requesting extradition to Texas to face the instant charge. A note attached to that letter said, "To DAs, need him benched." By a letter to the public defender dated April 18, 2006, appellant also requested extradition. A note attached to that letter said, "Do you want DAs to extradite him" and "yes." In April 2007, appellant requested the Oregon Department of Corrections to provide him addresses in Texas to which he could mail the detainer information, saying he had "everything filled out and ready to go." By letter dated April 6, 2007, the department informed him that it must prepare the IAD paperwork, and that Texas would not accept paperwork directly from him. Exhibits in the record show appellant again refused to sign the IAD paperwork on April 10, 2007. (At the hearing on his motion to dismiss on speedy trial grounds, appellant testified he had not seen the IAD paperwork.) On March 19, 2007, the Dallas County Sheriff's Department placed a detainer on appellant by sending to the Oregon Department of Corrections a copy of the felony arrest warrant for aggravated sexual assault of a child. Appellant was transferred to the custody of the Dallas County Sheriff on the day he completed his Oregon prison sentence, September 20, 2007. Considering the thirty-eight-month period between issuance of the indictment and appellant's transfer to Texas custody, there is evidence appellant's conduct was responsible for twenty-six months of the delay due to his refusal to cooperate with the IAD procedures. See Tex. Code Crim. Proc. Ann. art. 51.14(a), (b) (prisoner sends request for final disposition to official having custody of him, who "shall promptly forward it together with the certificate to the appropriate prosecuting official and court . . ."). Although there is no explanation for the twelve-month delay between March 30, 2006 (the date of appellant's letter to the Dallas County Sheriff's office requesting extradition to Texas), and April 10, 2007 (the date appellant again refused to sign the IAD paperwork), such absence does not support a presumption of either a deliberate attempt on the State's part to prejudice the defense or a valid reason for the delay. See id. As noted above, appellant was transferred to the custody of the Dallas County Sheriff on September 20, 2007. On September 25, 2007, appellant's case on the instant offense was set for trial on October 3, 2007, and then postponed to October 10, 2007. At the last setting, appellant's case was assigned a March 31, 2008 trial date. Thus, within three weeks of his return to Texas, on October 10, 2007, appellant received a trial date of March 31, 2008, less than six months from the setting. On February 23, 2008, appellant filed a pro se motion to disqualify his attorney, Roger Lenox. The trial court heard and granted Lenox's motion to withdraw on March 6, 2008. The trial court appointed Mark Nancarrow, who subsequently represented appellant on his speedy trial motion to dismiss. Thereafter, the trial court granted appellant's motion for continuance and set a trial date of May 27, 2008. On May 8, 2008, appellant filed a pro se motion to recuse the trial judge. On May 21, 2008, the Honorable John Ovard heard and orally granted appellant's motion to recuse and then proceeded to consider Nancarrow's motion to withdraw. The court also considered appellant's pro se motion to disqualify Nancarrow, to which he attached a letter saying if Nancarrow did not quit, appellant would "use conflict of intrest [sic] by laying hands on you. . . ." The court granted Nancarrow's motion and appointed a public defender to represent appellant. Appellant's case was reset for trial on July 14, 2008, and trial commenced on that day. Thus, there is evidence appellant's conduct was responsible for the delay from February 23, 2008 (the date of appellant's first motion to disqualify his attorney), through May 21, 2008 (when the fourth counsel was appointed to represent him). Although there is no explanation for the two-month delay between May 21, 2008, and the trial setting on July 14, 2008, such absence does not support a presumption of either a deliberate attempt on the State's part to prejudice the defense or a valid reason for the delay. See id. In light of this record, we conclude the second Barker factor weighs more heavily against appellant. 3. Assertion of Right
A defendant's speedy trial claim is weakened when the prime objective is not to gain a speedy trial but rather to have the charges dismissed. Zamorano, 84 S.W.3d at 651 n. 40. There is evidence that, despite being informed that signing the IAD paperwork was necessary and needed to be sent by the Oregon authorities, appellant refused to sign it or cooperate. In addition, appellant filed various pretrial motions to dismiss but did not seek a hearing on these motions, suggesting he wanted no trial, not a speedy trial. See id.; Starks v. State, 266 S.W.3d 605, 612 (Tex. App.-El Paso 2008, no pet.). We conclude this factor weighs against appellant. See Zamorano, 84 S.W.3d at 651, n. 40. 4. Prejudice Caused by Delay
When a court assesses the final factor, prejudice to the defendant, it must do so in light of the interests that the speedy trial right was intended to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize the defendant's anxiety and concern; and (3) to limit the possibility that the defendant's defense will be impaired. Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003). Of these forms of prejudice, "the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id. (quoting Barker, 407 U.S. at 532). First, appellant's pretrial incarceration cannot be considered oppressive in these circumstances, given his arrest and conviction in Oregon. Although appellant also argued he lost the opportunity to have his Oregon sentence run concurrently with his eventual sentence in this case, the trial court credited appellant's sentence for the instant offense with the time of his pretrial incarceration from January 25, 2005, to July 18, 2008, See United States v. Casas, 425 F.3d 23, 34-35 (1st Cir. 2005) (no prejudice where appellants convicted and time served was credited against sentences), cert. denied, 126 S. Ct. 1670 (2006); Starks, 266 S.W.3d at 612-13 (no prejudice where appellant pleaded guilty and received full credit for time spent in jail); cf. Barker, 407 U.S. at 533 (noting "[i]t is especially unfortunate to impose [disadvantages of pretrial detention] on those persons who are ultimately found to be innocent"). Second, appellant testified that he was treated badly by other prisoners and prison authorities because they knew of the sexual assault charges. He said other prisoners assaulted him and most of his disciplinary infractions were a result of the charges and how he was treated. However, there is no evidence of mistreatment arising from the instant charge. Additionally, appellant's Oregon disciplinary records were admitted; they show instances of appellant's verbal abuse towards guards and fighting with other inmates. Appellant also argued that his Veteran Affairs benefits were suspended as a result of "this warrant" and he was left without income, but he did not explain how this related to lack of a speedy trial in Texas and not his Oregon incarceration. Appellant's letters show anger and abuse directed at the authorities, not concern or anxiety. See Shaw, 117 S.W.3d at 890 (no evidence offered of unusual anxiety or concern beyond that "normally associated with being charged with a felony sexual crime"). Third, appellant argued his grandmother's death during the delay deprived him of a witness in the Texas prosecution. To establish prejudice stemming from an unavailable witness, a defendant must show the witness was unavailable, her testimony might have been material and relevant to the defendant's case, and he exercised due diligence in attempting to locate her and produce her for trial. Shea v. State, 167 S.W.3d 98, 103 (Tex. App.-Waco 2005, pet. ref'd). Appellant testified his grandmother died in 2005, and that she would have impeached the testimony of his mother, who he said was involved in P.B. and C.B. pursuing the instant charge. However, appellant made no connection between his grandmother and the alleged sexual assault of C.B. We cannot conclude appellant's evidence satisfies the Shea standard. See id. 5. Balancing Weighing in favor of finding a violation of appellant's speedy trial right are the facts that the delay here was excessive and the State offered no reason for part of the delay. Weighing against finding a violation of the right to speedy trial are the facts that appellant was responsible for a majority of the delay, he weakly asserted his speedy trial right, and he failed to meet the standard for showing prejudice. Applying a de novo standard of review to the legal components of appellant's claim, we conclude the weight of the four Barker factors is against appellant's position that his right to a speedy trial was violated. See Shaw, 117 S.W.3d at 891; Dragoo, 96 S.W.3d at 316; cf. Zamorano, 84 S.W.3d at 654-55. We resolve appellant's first issue against him. III. INDICTMENT
In his second issue, appellant contends his conviction is void because it is based on a "void indictment." Appellant argues that "the warrant for his arrest had been deactivated" in May 2005, "making the State's indictment null and void." Appellant relies on code of criminal procedure articles 28.061 and 32.01. See Tex. Code Crim. Proc. Ann. arts. 28.061, 32.01 (West 2006). Appellant presented this argument in pro se pretrial motions to dismiss. These motions are part of the clerk's record on appeal, but nothing in the record indicates the trial court heard those motions or that appellant sought a hearing on them. There is no ruling in the record specifically disposing of the pro se motions to dismiss. We conclude appellant preserves nothing for our review on his "void indictment" (second) issue, and we resolve it against him. See Tex. R. App. P. 33.1(a). IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue, appellant contends he was deprived of his constitutional right to effective assistance of counsel. Specifically, he contends counsel failed to file a "timely" speedy trial motion; failed to request a hearing on expert opinion and to make certain objections to expert opinions; failed to object to "multiple outcry corroboration witnesses"; failed to object to admission of hearsay statements contained in Oregon prison records and other hearsay statements at punishment; and failed to object to the State's argument urging jurors to bow to community expectations. A. Applicable Law
To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence: (1) deficient performance, and (2) prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim of ineffective assistance of counsel must be "firmly founded in the record" and "the record must affirmatively demonstrate" the meritorious nature of the claim. Id. Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. Id. This is true with regard to the question of deficient performance-in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight-where counsel's reasons for failing to do something do not appear in the record. Id. "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). B. Discussion
Although appellant filed a motion for new trial, his motion did not allege that his counsel was ineffective, and he did not otherwise develop a record explaining why counsel engaged in the challenged conduct. See Goodspeed, 187 S.W.3d at 392. The record is silent as to counsel's strategy or reasons for the alleged failures. This Court will not speculate as to what counsel's trial strategy might have been with regard to the alleged errors. Moreover, we cannot say that counsel's conduct in failing to file a "timely" speedy trial motion and failing to make the challenged objections and requests is "so outrageous that no competent attorney would have engaged in it." See Garcia, 57 S.W.3d at 440; accord Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). The silent record in this case cannot overcome the presumption of effective assistance of counsel. See Goodspeed, 187 S.W.3d at 392. We resolve appellant's third issue against him. V. CONCLUSION
Having resolved appellant's three issues against him, we affirm the trial court's judgment.