Cramer v. State

Full title: JIMMY RAY CRAMER, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 12, 2003

No. 05-02-01757-CR (Tex. App. Nov. 12, 2003)

Opinion

No. 05-02-01757-CR

Opinion issued November 12, 2003. DO NOT PUBLISH. Tex.R.App.P. 47

On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-81117-01. AFFIRMED

Before Justices WHITTINGTON, WRIGHT, and BRIDGES.

OPINION

Opinion By Justice WHITTINGTON.

Jimmy Ray Cramer appeals his conviction for compelling prostitution. After the jury found him guilty, the trial judge assessed punishment, enhanced by two prior felony convictions, at life imprisonment. In three points of error, appellant contends the trial judge erred in overruling his motions to quash the indictment and dismiss the case and that the evidence is legally insufficient to support his conviction. We affirm the trial court's judgment.

Background

On March 31, 2001, Lucy Morales was at her apartment in south Plano when she saw appellant and a "white lady," later identified as Mary Maddock, at the apartment next door. Appellant told the men inside the apartment, "viente pesos" (twenty dollars). Maddock went inside and reappeared later, looking shocked and scared. When she walked by, Morales noticed Maddock was not wearing underwear and that her dress was hiked up in back around her waist. Appellant then offered Maddock's "services," as well as his own, to Morales who refused and called Plano police. Morales watched from her window as two Hispanic men approached appellant and asked, "How much?" Appellant responded, "Viente pesos." Appellant pushed Maddock toward the men. Maddock was scared and told them, "No," but the men grabbed her hand and dragged her toward a field behind Morales's apartment complex. Morales called the police a second time. Appellant was subsequently arrested and charged with compelling prostitution. After the jury found appellant guilty, the trial judge assessed punishment, enhanced by two prior felony convictions, at life imprisonment. This appeal followed.

Motion to Quash Indictment Legal Sufficiency of the Evidence

In his first and second points of error, appellant contends the trial judge erred in denying his motion to quash the indictment and that the evidence is legally insufficient to support his conviction. Under his first point, appellant claims the trial judge erred in denying his motion to quash because six paragraphs in the indictment failed to specifically allege the manner and means by which he caused Maddock to commit prostitution by force, threat, or fraud.¹ Appellant concedes, however, that he did not object to paragraph one of the indictment in which the State alleged that appellant, did then and there:

knowingly cause Mary Lea Maddock, by force, threat, and fraud to commit prostitution, to-wit: grabbing the arm of Mary Lea Maddock and forcing her to engage in sexual conduct with two hispanic males unknown to the Grand Jurors, for a fee[.]

Because he did not challenge paragraph one, we first address whether the evidence is legally sufficient to support his conviction under this theory. If the evidence is legally sufficient to support his conviction, we need not address whether appellant's motion should have been granted and the remaining paragraphs stricken. We review appellant's second point of error under well-established standards. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001). We examine the evidence and consider all reasonable inferences therefrom in the light most favorable to the verdict to determine if the elements of the offense have been established. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). Evidence is legally insufficient only if no rational jury could have found each element of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Bustamante v. State, 106 S.W.3d 738, 740 (Tex.Crim.App. 2003). "A person commits an offense if he knowingly causes another by force, threat, or fraud to commit prostitution." Tex. Pen. Code Ann. § 43.05(a) (Vernon 2003). Prostitution is offering to engage, agreeing to engage, or engaging in sexual conduct for a fee. Tex. Pen. Code Ann. § 43.02(a)(1). A victim's diminished mental capacity, along with all of the other evidence, may be considered by the jury in determining the sufficiency of the evidence upon the issue of force or threat. See Barnett v. State, 820 S.W.2d 240, 242 (Tex.App.-Corpus Christi 1991, pet ref'd); see also Wootten v. State, 799 S.W.2d 499, 501-02 (Tex.App.-Corpus Christi 1990, pet. ref'd) (evidence consisting of expert testimony that retarded individuals are generally trusting and cooperative and that complainants were incapable of appraising nature of sexual act and resisting it, supported conviction of sexual assault of retarded adults who functioned at level of six-year-old children). In this case, Morales testified she saw appellant and Maddock at her next door neighbors' apartment. One man was at the door, and at least one other man was inside. Appellant told the men, "Viente pesos." Maddock went inside, with her head ducked down. Morales described her as looking "[n]ervous, scared, [and] shaky." Ten to fifteen minutes later, Maddock reappeared, looking shocked, scared, and like she "didn't know where she was." Morales noticed that when Maddock walked by, her dress was hiked up in back around her waist, revealing that Maddock was not wearing underwear. Morales went inside her apartment. Shortly thereafter, appellant knocked on her door and offered Maddock's "services." When Morales declined, appellant offered his own "sexual services." Morales called the Plano police because "at that time [she] knew what he was doing — prostituting the white lady." From her apartment window, Morales continued to watch appellant and Maddock. Two Hispanic men approached appellant and asked, "How much?" When appellant responded, "Viente pesos," Maddock said, "No." According to Morales, Maddock was scared and did not want to go with the men. Appellant pushed her toward the men and told her, "Go, just go." He then told the men to take her. The men grabbed Maddock's hand and dragged her, crying, toward a field. Maddock called the police a second time; they arrived ten to fifteen minutes later. Officer Joe Hernandez of the Plano police department testified he responded to the call regarding a black male and white female offering sexual services. When he arrived, appellant was talking to a Hispanic male. Although appellant identified the man as "his friend," he did not know the man's name. Hernandez asked appellant if he had seen a white female in the area but appellant claimed he had not. Shortly thereafter, Maddock walked up to appellant and Hernandez. Maddock was wearing a short dress. Appellant told her to leave, and she began to walk away. Two other officers arrived and questioned Maddock. Appellant later told Hernandez he had picked Maddock up in McKinney and brought her to the apartments to "make some money; quick money; easy money." Appellant claimed Maddock was the one soliciting prostitution and that he was just there to protect her. Appellant denied being a pimp and said he did not beat up Maddock. According to Hernandez, "they [were] asking $20, but [appellant] did not say what they made that day." The officers ran a check on appellant. When they discovered three outstanding warrants, they arrested him. Officer Douglas Deaton testified he arrived to assist Officer Hernandez. He spoke with Maddock who "appeared to [have] some sort of speech impediment, or she appeared to be mentally delayed or mentally retarded. She didn't speak very well." According to Deaton, Maddock was "very nervous" and "acted very childlike." Her body language and mannerisms were like those of a five- or six-year-old child. She was wearing a blue top and skirt or dress. When the officer would ask her questions, Maddock looked at appellant for help and guidance. After several minutes of questioning, she told the officer appellant was going door to door asking for money. Hernandez then spoke with appellant who told the officer Maddock was going door to door having sex with men for money. When appellant was placed under arrest, Hernandez searched him and found a "large number of condoms and quite a few $20 bills" in his pockets. Sandra Maddock testified her daughter, Mary, is mentally challenged. Although she is twenty years old, she acts like a ten — or eleven-year-old. Sandra testified that on March 31, 2001, she called the police and reported Mary missing. When Mary returned home, she was not wearing the same clothes she had been wearing when she left. She was dressed in a blue dress with little straps. Dr. Dorothy Bennett, a licensed psychologist, testified Maddock had an IQ below 70² and that she would be in the low end of the moderate range of mental retardation. Academically, Maddock functioned at the level of a five-year-old at best. She could not read, had limited language skills, and was "deficient in social judgment." Mary needed supervision in "almost everything she would do." At trial, the judge determined Maddock was incompetent to testify to anything other than her name. Viewed in the light most favorable to the judgment, the evidence shows Maddock, a mentally handicapped female who is deficient in social judgment and functioned at the level of a five-year-old child, was taken by appellant to an apartment complex where he offered her sexual services to others for twenty dollars. Maddock was scared, shaky, nervous, and appeared to not know what was happening. When two men approached, appellant quoted a price and told them to "take her." Although she cried and told him, "No," he pushed her to the men who forcibly dragged her to a nearby field. When police arrived, appellant claimed Maddock was the one soliciting and that he was simply there to protect her. From these facts, we conclude a rational jury could infer appellant knowingly caused Maddock by force or threat to commit prostitution by offering to engage, agreeing to engage, or engaging in sexual conduct for a fee. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for compelling prostitution. We overrule appellant's second point of error. Because the evidence is legally sufficient to support appellant's conviction under paragraph one of the indictment, we conclude we need not address appellant's first point of error. Cf. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991) ("It is appropriate where the alternate theories of committing the same offense are submitted to the jury in the disjunctive for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted."). Moreover, even if we were to assume the remaining paragraphs were deficient, the record does not show how appellant's defense or his ability to anticipate the State's proof was impeded. Thus, the trial judge's denial of appellant's motion to quash, if error, could not constitute harmful error. See Flores v. State, 33 S.W.3d 907, 919 (Tex.App.-Houston [14th Dist. 2000, pet. ref'd) (although trial court erred in denying appellant's motion to quash, review of record fails to show how lack of notice in information adversely impacted appellant's ability to prepare defense). We overrule appellant's first point of error.

Motion to Dismiss for Want of a Speedy Trial

In his third point of error, appellant contends the trial judge erred in denying his motion to dismiss for want of a speedy trial. We review a trial judge's decision on a defendant's federal constitutional speedy trial claim under "an abuse of discretion standard for the factual components" and a de novo standard for the legal components of the trial judge's decision. State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999). We review the decision in light of the arguments, information, and evidence before the trial judge at the time he ruled. Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). The right to a speedy trial is guaranteed by the United States Constitution. U.S. Const. amends. VI, XIV, §§ 1. In determining whether a defendant was denied his right to a speedy trial, the trial judge 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 length of the delay is referred to as a "triggering mechanism" for a speedy trial analysis; absent a "presumptively prejudicial" delay, the other Barker factors need not be considered. Munoz, 991 S.W.2d at 820.

Length of Delay

In this case, the time between appellant's being charged with compelling prostitution on August 15, 2001 and the filing of his motion for speedy trial on July 30, 2002 was nearly one year. Because "delay approaching one year is sufficient to trigger a speedy trial inquiry," Shaw v. State, No. 1539-02, slip op. at 7, 2003 WL 22346384 (Tex.Crim.App. Oct. 15, 2003), we must consider the other Barker factors. See Munoz, 991 S.W.2d at 820. Although the delay was sufficient to trigger further analysis, it did not stretch "far beyond the minimum needed to trigger the inquiry" and, therefore, weighs only slightly in favor of finding a violation of appellant's right to a speedy trial. Shaw, slip op. at 7.

Reasons for Delay

The State bears the burden of justifying the delay. During the October 10 hearing on the motion to dismiss, the prosecutor noted the case had originally been set for trial June 24, 2002. Less than a month before trial, appellant's attorney withdrew because appellant "was not complying with the terms of [their] agreement . . . [either] he wasn't paying him or wasn't cooperating with him." Appellant subsequently hired new counsel who removed the case from the jury docket. The record shows appellant executed ten speedy trial waivers, beginning October 2001. His last speedy trial waiver was executed July 12, passing the case to August 14, 2002. On July 30, 2002, appellant filed his request for a speedy trial, and a hearing was set for August 14. During the hearing, although appellant requested a trial date of August 26, the State's docket was full. Thereafter, both sides agreed that the case be set for trial September 30, 2002. On September 17, 2002, the State reindicted appellant, alleging different manners and means. Appellant then filed a motion to quash which was heard and granted in part on September 30. That same day, the complaining witness was found incompetent to testify. Nevertheless, the State informed appellant and the trial judge that it had a motion to amend the indictment. The State indicated that if appellant would waive his ten days' preparation following amendment of the indictment, the State was prepared to go to trial on the amended indictment that day. Appellant declined to do so, and the trial judge granted the State a two-week continuance. The State filed a motion to amend the indictment which the trial judge granted on October 3. Appellant filed a motion to quash the indictment and a motion to dismiss on various grounds and, following a hearing on October 10, 2002, the trial judge granted in part the motion to quash and denied the remaining motions. The case was tried four days later. Here, although the State was responsible for the delay caused by reindicting appellant and amending the indictment, the State also offered reasons to justify the delay: appellant's repeated execution of speedy trial waivers and his difficulties with his first attorney. Thus, appellant was largely responsible for the initial delay in the case. In light of this, we conclude the second factor weighs only slightly in favor of finding a violation of appellant's right to a speedy trial.

Defendant's Assertion of his Right

"[A] defendant's failure to make a timely demand for a speedy trial indicates strongly that he did not really want one and that he was not prejudiced by not having one. . . Thus, a defendant's inaction weighs more heavily against a violation the longer the delay becomes." Shaw, slip op. at 8 (citing Dragoo, 96 S.W.3d at 314) (internal citations omitted). In this case, appellant did not assert his speedy trial right until nearly one year after his indictment. In fact, appellant executed eleven speedy trial waivers during the first year his case was pending. In view of appellant's acquiescence, we conclude this factor weighs heavily against finding a violation of appellant's right to a speedy trial.

Prejudice to Defendant

The final factor must be assessed in light of the interests the right to a speedy trial is intended to protect: (i) to prevent oppressive pretrial incarceration; (ii) to minimize the defendant's anxiety and concern; and (iii) to limit the possibility that the defendant's defense will be impaired. Shaw, slip op. at 8 (citing Barker, 407 U.S. at 532). Appellant has been incarcerated since July 12, 2002. As the State argued during the hearing, appellant would be tried before several other individuals who had spent more time incarcerated than appellant. The State also argued that appellant was facing additional charges and would have been in jail even if this case would have proceed to trial sooner. Thus, we need not concern ourselves with pretrial incarceration. With respect to the second element, appellant did not allege or argue the delay incurred any anxiety or concern. In the face of no evidence in the record to support this element, we decline to infer any existed. Finally, with respect to the third element, we must presume the lengthy delay adversely affected appellant's ability to defend himself, however, "this presumption is extenuated by appellant's longtime acquiescence in the delay." See Shaw, slip op. at 9. In sum, the trial judge could have reasonably concluded appellant failed to demonstrate any actual prejudice. Therefore, the fourth factor weighs against finding a violation of appellant's right to a speedy trial.

Balance of Factors

Having addressed the four Barker factors, we now balance them to determine whether a speedy trial violation occurred. Weighing slightly in favor of finding a violation are the length of and reason for the delay. Weighing against a finding of a violation are the facts that appellant (i) waited nearly one year before asserting his right to a speedy trial, (ii) executed eleven speedy trial waivers, (iii) was responsible for the delay involving his first attorney, and (iv) failed to demonstrate any prejudice. Thus, we conclude the weight of the four factors, when balanced, weighs against a finding of a violation of appellant's right to a speedy trial. See Shaw, slip op. at 10. Accordingly, we cannot conclude the trial judge erred in denying appellant's motion to dismiss for want of a speedy trial. We overrule appellant's third point of error. We affirm the trial court's judgment.