Opinion
No. 06-02-00220-CR
Date Submitted: September 19, 2003.
Date Decided: September 22, 2003. DO NOT PUBLISH.
On Appeal from the 71st Judicial District Court, Harrison County, Texas, Trial Court No. 02-0137X.
Before MORRISS, C.J., ROSS and CARTER, JJ.
OPINION
Keith E. Wilder appeals from his conviction by a jury for aggravated robbery. The jury assessed his punishment at seventy-five years' imprisonment. On appeal, Wilder contends his conviction should be reversed because of improper identification procedures used by police in a photographic lineup, because of allegations of Batson error, because of an inordinate delay between his arrest and trial, because the evidence was insufficient to prove he used a deadly weapon, and because the evidence was legally and factually insufficient to support a conclusion he was the actor in the robbery. The evidence shows that a black male entered a convenience store, went behind the counter while brandishing a machete, and ordered the clerk to "move back or I will kill you." He could not figure out how to open the cash register and used the machete to pry it open. He took money from the machine and ran out of the building. A passerby, Tonya Sickles, saw him run from the store and suspected a robbery. She saw him get into a two-tone pickup truck parked beside a closed liquor store next door to the crime scene and followed him for some time while contacting the police, giving them a detailed description of the vehicle. The police caught up with the truck, and its occupant ran away. Inside the truck, officers found money scattered about, a green machete, and a hat and shirt. The owner of the pickup truck, Delta Hatton, testified Wilder (her cousin) worked for her in her lawn service business. She testified he had borrowed the truck from her, identified the hat as one she had given him as a gift, and also identified the machete as one of the tools used in her business. The robbery occurred October 29, 2001. A photographic lineup was created by police which was shown to the store clerk October 30, and in which she identified Wilder as the robber. Wilder was caught and arrested in Longview January 9, 2002. An indictment was returned against him for this robbery April 23, 2002, and trial was conducted in mid-November 2002. We first address Wilder's complaint about the photographic lineup. He argues the court erred by denying his motion to suppress the in-court identification of him as the robber because the witnesses had been tainted through police use of suggestive identification procedures. He does not specify how the photographic lineup might have been improper, but argues generally that the witnesses had only a short period of time to observe the robber and that, because his features were partially obscured by a towel, their in-court testimony was not believable. An in-court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial photographic identification. The test is whether, considering the totality of the circumstances, "the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968); see Madden v. State, 799 S.W.2d 683, 695 (Tex.Crim.App. 1990). Reliability is the critical question:
[I]f the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure, subsequent identification testimony will be deemed "reliable," "reliability [being] the linchpin in determining the admissibility of identification testimony."Ibarra v. State, 11 S.W.3d 189, 195 (Tex.Crim.App. 1999), quoting Webb v. State, 760 S.W.2d 263, 269 (Tex.Crim.App. 1988). In this case, there is no indication of any reason why the photographic lineup might be considered suggestive. The testimony shows that the lineup was presented the next day to the clerk and to the police officer who stopped the vehicle, and that both individuals picked Wilder out of the lineup. The lineup itself is a series of similar photographs of similarly built and attired young black men with similar hairstyles and facial features. The issue as set out by counsel is whether the witnesses saw the person clearly enough to be able to later identify him. They both testified they recognized him. The clerk testified that she had met Wilder earlier and that she recognized his facial features despite the cloaking of the towel. As they actually made physical contact while he was robbing the store, she was able to see him at close range, and she testified Wilder was the robber. The police officer testified he saw Wilder as Wilder got out of the pickup truck and ran away, and the officer had a clear, well-lighted view of Wilder for several seconds while this was occurring, at a fairly close distance. The question of the strength of this testimony was for the jury to determine. The mere fact Wilder's face was partially covered during part of the robbery does not nullify the witnesses' ability to nonetheless identify him. The contentions of error are overruled. Wilder next contends his constitutional rights were violated by the improper striking of black jurors by the State. In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that the state's purposeful use of peremptory challenges in a racially discriminatory manner violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. A Batson review involves a three-step analysis. Williams v. State, 937 S.W.2d 479, 485 (Tex.Crim.App. 1996). The first step requires the complaining party to make a prima facie case of racial discrimination. Id., citing Purkett v. Elem, 514 U.S. 765, 767-69 (1995). A prima facie case of discrimination may be made by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Batson, 476 U.S. at 93-96. After the complaining party makes his or her prima facie case, the second step requires that the proponent of the challenge come forward with a race-neutral reason for the strike. Williams, 937 S.W.2d at 485. This second step does not demand an explanation that is persuasive, or even plausible. Purkett, 514 U.S. at 768. If the proponent of the strike can produce a race-neutral reason, then in the third and final step, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. Id.; Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App. 1999). In reviewing a Batson challenge, we review the record in the light most favorable to the trial court's rulings and determine if the court's action was clearly erroneous. Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App. 1991); see Roberts v. State, 963 S.W.2d 894, 899-00 (Tex.App. Texarkana 1998, no pet.). In this case, the State struck two African-American members of the venire. Defense counsel objected. The State then explained that it struck the first juror because the district attorney had prosecuted one of his relatives and that it struck the second because he was unemployed. Those reasons are race-neutral. The contention of error is overruled. Wilder further contends the trial court erred by overruling his motion to dismiss for lack of a speedy trial. Extended governmental delay in prosecuting entitles a defendant to relief based on the right to a speedy trial. Doggett v. United States, 505 U.S. 647 (1992); Barker v. Wingo, 407 U.S. 514, 530-31 (1972). If a violation of the speedy trial right is established, the only possible remedy is dismissal of the prosecution. Strunk v. United States, 412 U.S. 434, 440 (1973). In determining whether an accused has been denied his or her right to a speedy trial, a court must use a balancing test "in which the conduct of both the prosecution and the defendant are weighed." Barker, 407 U.S. at 530. The factors to be weighed in the balance include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant's assertion of his or her speedy trial right, and the prejudice to the defendant resulting from the delay. Id. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial. Id. at 533; Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). The first Barker factor, the length of the delay, is measured from the time the defendant is arrested or formally accused. Dragoo, 96 S.W.3d at 313. Wilder was arrested January 9, 2002, while already incarcerated in Gregg County on other charges. He was formally indicted April 23, 2002, and jury selection began November 12, 2002. The time from arrest to trial was ten months. That suggests an inordinate delay between the commencement of proceedings and trial. Zamorano v. State, 84 S.W.3d 643, 649 n. 26 (Tex.Crim.App. 2002); Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App. 1992) (recognizing courts generally hold any delay of eight months or longer presumptively unreasonable and triggers speedy trial analysis). The second factor is the reason for the delay. In its response to a motion to dismiss for lack of a speedy trial, the State pointed out that the district attorney's office in Harrison County underwent a change in staff as a result of the March 2002 Democratic primary. There was, as acknowledged by the trial court, a scarcity of district attorneys to try the case. As described by the trial court, there was a changeover in the prosecutor's office, leaving only one prosecutor available on a full-time basis. The explanation is based on the resources of the Harrison County prosecution system. Barker discusses three categories of delay: 1) deliberate attempts by the prosecution to delay the trial in order to hamper the defense are weighed heavily against the prosecution; 2) more neutral reasons, such as negligence by the state, or overcrowded dockets, are weighed less heavily against the prosecution, but are still weighed against the state because the ultimate responsibility for these circumstances lies with the state, not the defendant; and 3) valid reasons for delay, such as a missing witness. Barker, 407 U.S. at 531. Although a finding of "bad-faith delay" renders relief almost automatic, a finding of mere negligence will not become "automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him." Zamorano, 84 S.W.3d at 649. This reflects neither bad faith nor negligence. It does reflect the existence of a situation not caused by the defendant and which must therefore be attributed to the State. The record also reflects that Wilder was facing charges in Gregg County at the same time and that it was necessary to coordinate this prosecution with that of the neighboring county. In connection with that situation, the record shows: Wilder had been transferred to the Gregg County jail during that time period; after Wilder returned in May to Harrison County, the court had no jury trials in August; the June-July docket had been set in March and April; the court began setting cases again in September; by September, there was the above-mentioned "scarcity" of district attorneys to try the case. Thus, for at least a portion of that time, Wilder was in the custody of a different entity and thus could not be tried by Harrison County without being brought back to that location. We hold the reasons offered by the State for the delay between Wilder's indictment and trial are neutral and weigh less heavily than if they were intentional against the State. See State v. Munoz, 991 S.W.2d 818, 822 (Tex.Crim.App. 1999); Russell v. State, 90 S.W.3d 865, 872 (Tex.App. San Antonio 2002, pet. ref'd). The third factor is the assertion of the right to a speedy trial. Assertion of this right is a weighty factor in the Barker balancing test. See Barker, 407 U.S. at 531-32; Schenekl v. State, 996 S.W.2d 305, 312 (Tex.App. Fort Worth 1999), aff'd, 30 S.W.3d 412 (Tex.Crim.App. 2000). Although a defendant's failure to assert his or her speedy trial right does not amount to a waiver of that right, "failure to assert the right . . . make[s] it difficult for a defendant to prove that he was denied a speedy trial." Barker, 407 U.S. at 532. This is so because a defendant's lack of a timely demand for a speedy trial indicates strongly that he or she did not really want a speedy trial and that the defendant was not prejudiced by lack of one. Dragoo, 96 S.W.3d at 314. Wilder filed a motion for speedy trial October 31, 2002. Thus, the right was asserted. The final Barker factor to consider is prejudice to the accused. We make this assessment in light of the interests of defendants which the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize the accused's anxiety and concern; and (3) to limit the possibility that the accused's defense will be impaired. Barker, 407 U.S. at 532. 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. Furthermore, with respect to the third interest, affirmative proof of particularized prejudice is not essential to every speedy trial claim, because "excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify." Doggett, 505 U.S. at 655. On the other hand, this "presumption of prejudice" is "extenuated . . . by the defendant's acquiescence" in the delay. Id. at 658. During a large portion of the time in question, Wilder was in a neighboring county's jail awaiting trial on charges pending in that jurisdiction. Under these circumstances, we have been directed that we should be mainly concerned with whether an appellant's ability to defend himself or herself was prejudiced by the delay. Dragoo, 96 S.W.3d at 315-16; see McCarty v. State, 498 S.W.2d 212, 218 (Tex.Crim.App. 1973). The argument raised by Wilder in this context is that he has adequately shown his defense in this case was prejudiced by the delay. His argument is focused on an alleged alibi witness who disappeared between the time of Wilder's arrest and trial. However, the record does not indicate Wilder could identify that witness, and Wilder knew the witness only as "James." In that respect, it is equally likely the delay provided more time to locate an unknown witness. The delay itself is on the lower limit of what is considered an excessive time period for the purpose of a Barker review. This factor weighs against the State. The delay was attributable to the State, and there is no indication Wilder contributed to that delay in any manner. Because there are stated reasons for the delay, and the delay was not as a result of intentional State activity seeking such a delay, that factor also weighs against the State, although only to a minimal level. Wilder did assert his right to a speedy trial, and there is no indication his actions contributed to the delay. However, there is no indication of any real level of injury resulting from the delay. Wilder was otherwise, and evidently properly, incarcerated during the time period in question; thus, no harm can be shown from that avenue. His only argument of prejudice is based on the loss of an unknown alibi witness as described above. In determining whether an accused has been denied his or her right to a speedy trial, we use a balancing test in which the conduct of both the prosecution and the defendant are weighed, utilizing the factors set out above. Barker, 407 U.S. at 530. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial. Id. at 533; Dragoo, 96 S.W.3d at 313. In conducting that test, on these facts as shown by the record, we cannot conclude Wilder has shown his right to a speedy trial was violated. The contention of error is overruled. Wilder also contends the evidence is factually and legally insufficient to support the conviction. In our review of the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In reviewing for factual sufficiency, we view the evidence in a neutral light, favoring neither party. Id. We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. We have previously set out the evidence. There is evidence Wilder threatened the clerk with death while he was wielding a machete, and Officer Raymond Biard testified that a machete is a deadly weapon. That is sufficient evidence to allow the jury to reasonably conclude that a deadly weapon was used in the commission of the crime and that the clerk was thereby placed in fear of her life. Wilder also suggests the identification evidence was too weak to allow the jury to conclude he was the perpetrator of the crime. However, the jury heard testimony from the clerk identifying him as the perpetrator, testimony from the police officer identifying him as the driver of the getaway vehicle, testimony explaining he was allowed to borrow the truck, and that items of clothing found in the truck, along with the stolen money, belonged to him. We find the evidence both legally and factually sufficient to support the verdict. We affirm the judgment.