BRUCE CHARLES WILSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed November 29, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01558-CR
............................
BRUCE CHARLES WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 4
Collin County, Texas
Trial Court Cause No. 004-83361-04
.............................................................
MEMORANDUM OPINION
Before Justices Richter, Francis, and Lang-Miers
Opinion By Justice Lang-Miers
        Appellant was convicted of assault causing bodily injury and sentenced to one year in prison and a $ 4000 fine. Appellant raises two issues on appeal. First, appellant argues that he was denied his right to a speedy trial. Second, appellant argues that the trial court erred in allowing testimony regarding a prior sexual assault for which appellant was not convicted but instead completed deferred adjudication probation. We affirm.
Right to a Speedy Trial        
 
        In appellant's first issue, he argues that his constitutional right to a speedy trial was violated because twenty-seven months passed between the date of the assault and the date of appellant's trial. Appellant argues that his defense was impaired due to the delay because his brother, whom appellant claims was “a possible witness in both guilt/innocence and punishment phases,” died eighteen months after the assault and was unavailable to testify at trial.
A. Applicable Law
 
        The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” U.S. Const. amend. VI; Barker v. Wingo, 407 U.S. 514, 515 (1972). This right was made applicable to the states by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. U.S. Const. amend. XIV; Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). The Texas Constitution also provides that “[i]n all criminal prosecutions the accused shall have a speedy . . . trial.” Tex. Const. art. I, § 10. If a defendant's right to a speedy trial is violated, “the only possible remedy is dismissal of the prosecution.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003) (citing Strunk v. United States, 412 U.S. 434, 440 (1973)).
        We use the balancing test set out in Barker to review a claim that a defendant was denied a speedy trial. Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005). Under the Barker test, we first consider the length of the delay. Dragoo, 96 S.W.3d at 313. If we conclude that the delay was presumptively unreasonable-generally recognized as a delay approaching one year-we then consider and balance three additional factors: (a) the reasons for the delay; (b) the date the right to a speedy trial was asserted; and (c) any prejudice resulting from the delay as evidenced by oppressive pretrial incarceration, the defendant's level of anxiety and concern, and impairment to the defense. Shaw v. State, 117 S.W.3d 883, 888-90 (Tex. Crim. App. 2003). No single factor is necessary or sufficient to establish a violation of the defendant's right to a speedy trial. Barker, 407 U.S. at 533. In conducting this analysis, we review legal issues de novo but give deference to the trial court's resolution of factual issues. Kelly, 163 S.W.3d at 726.
B. Analysis
 
         1. Length of the Delay
        The length of delay is measured from the time of the arrest. Dragoo, 96 S.W.3d at 313 (citing United States v. Marion, 404 U.S. 307, 313 (1971)). Appellant was arrested on May 5, 2004, the same day as the assault. His trial occurred on August 25, 2006. Under these facts, the delay was presumptively unreasonable. Dragoo, 96 S.W.3d at 314 (“In general, courts deem delay approaching one year to be 'unreasonable enough to trigger the Barker inquiry.'”). We next analyze and balance each of the additional three Barker factors to determine if appellant was denied his constitutional right to a speedy trial.
         2. Reasons for the Delay
        When analyzing and balancing the reasons for the delay, different weights are assigned to different reasons. As the Supreme Court has explained:
 
A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. 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 government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
 
Barker, 407 U.S. at 531.
        In this case there were multiple delays for various undisputed reasons, as well as additional delays for unknown reasons. Appellant's case was first set for trial on May 9, 2005. According to the trial judge's docket sheet, on that day, the State announced “ready” but appellant's counsel “called in sick.” The case was reset for June 27, 2005, and both the State and appellant announced “ready,” but the case was not reached. On that day, the trial was reset for August 29, 2005. On July 25, 2005, appellant's counsel moved for a continuance because she was going to be out of town at a wedding “the week prior to the current trial setting and [was] not scheduled to be back in town until August 31, 2005.” On July 25, 2005, the trial court reset the trial for August 31, 2005. On August 31, 2005, the trial was reset for October 3, 2005, but the record does not reflect the reason for that resetting. On September 30, 2005, the State filed an agreed motion for continuance because the complainant, Heather Miller, was recovering from emergency surgery and was unavailable to testify until October 21, 2005. On October 3, 2005, appellant's first court-appointed counsel asked to withdraw from the case and a new attorney was appointed for appellant. On October 13, 2005, the case was transferred to another court due to a “DWI court program.” It was transferred back to the original trial court in November 2005. The trial court's docket indicates that the case was reset for trial on January 23, 2006, but on that day was “not reachable.” The trial court's docket also indicates that the case was set for trial in February 2006 and May 2006, but does not indicate the reason the case was not reached. The trial occurred on August 25, 2006.
        There is no evidence in this case of a deliberate attempt to delay the trial in order to hamper appellant's defense. Two of the delays were due to appellant's counsel's illness and vacation schedule. One delay, to which appellant agreed, was because complainant was not available to testify. Other delays appear to be attributable to the court's overcrowded docket.   See Footnote 1  “[A] crowded court docket is not a valid reason for delay and must be counted against the State, although not heavily.” Shaw, 117 S.W.3d at 890. Nevertheless, the court's docket was not the only reason for the delay in this case. Under the facts of this case, we conclude that the reason for the delay is neutral and does not weigh in favor of appellant or the State.         
        3. Appellant's Assertion of His Right to a Speedy Trial
        Although a defendant's failure to assert his right to a speedy trial does not amount to a waiver of the right, “failure to assert the right make[s] it difficult for a defendant to prove he was denied a speedy trial.” Barker, 407 U.S. at 531-32. The longer the delay, the more likely it is that a defendant who really wants a speedy trial would take some action to obtain one. Barker, 407 U.S. at 531. A defendant's inaction therefore weighs more heavily against a speedy trial violation the longer the delay persists. Barker, 407 U.S. at 532.
        In October 2005, seventeen months after appellant was arrested, appellant retained new counsel who, in December 2005, moved to set aside the information for failure to afford appellant his right to a speedy trial. According to appellant, his prior counsel never told him that he had a right to a speedy trial. However, appellant's claim that he wanted a speedy trial is undermined by the fact that he moved to have his case dismissed instead of moving for a speedy trial. Zamorano v. State, 84 S.W.3d 643, 651 n.40 (Tex. Crim. App. 2002) (moving to dismiss instead of moving for speedy trial “shows a desire to have no trial instead of a speedy trial.”) (citing Parkerson v. State, 942 S.W.2d 789, 791 (Tex. App.-Fort Worth 1997, no pet.)). Nevertheless, “[e]ach case must turn on its own facts, and the particular relief a defendant seeks is but one fact to consider.” Zamorano, 84 S.W.3d at 651 n.40 (citing Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App.1983)).
        Even assuming appellant's first lawyer did not inform appellant of his right to request a speedy trial, we conclude that a delay of nineteen months in asserting appellant's right to a speedy trial weighs against appellant. See, e.g., State v. Jones, 168 S.W.3d 339, 349 (Tex. App.-Dallas 2005, no pet.) (delay of nine months in asserting right to speedy trial weighed against defendant).
        4. Prejudice to Appellant Resulting from the Delay
        We analyze the prejudice to the accused in light of the three interests 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 the defense will be impaired.” Jones, 168 S.W.3d at 349 (citing Barker, 407 U.S. at 532). Of these three interests, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, 407 U.S. at 532. In this case, appellant does not argue that his pretrial incarceration was oppressive, and the record reflects that he was released on bond four days after his arrest. Appellant also does not argue in this appeal that he experienced undue anxiety or concern.   See Footnote 2 
        However, appellant argues that his defense was impaired because his brother, who knew the complainant, died in November 2005 while appellant was awaiting trial. At the hearing on his motion to set aside the information, appellant testified that his brother was “real friendly” with the complainant and answered “[y]es, sir” when his lawyer asked him during his redirect examination whether his brother “might have had information that we would have been able to use in this case one way or the other, either in guilt or innocence or at the punishment phase.” Appellant did not testify or offer other evidence concerning what his brother's testimony would have been or why it would have been relevant and material to his defense.
        In Texas, although a showing of actual prejudice is not required, “the accused has the burden to make some showing of prejudice that was caused by the delay of his trial.” Jones, 168 S.W.3d at 349. Although “prejudice is obvious when a witness dies during a delay,” it was appellant's burden to demonstrate that “the prospective witness was believed to be material to the case.” Ervin v. State, 125 S.W.3d 542, 548 (Tex. App.-Houston [1st Dist.] 2002, no pet.); see also Phipps v. State, 630 S.W.2d 942, 947 (Tex. Crim. App. 1982) (appellant must demonstrate that missing witness's testimony “might be material and relevant to his case”). If the accused makes some showing of prejudice, the burden shifts to the State to show that no actual prejudice resulted. Jones, 168 S.W.3d at 349.
        There is nothing in the record that states what appellant's brother's testimony would have been or how it could have been material and relevant to his case. Although appellant's brother knew the complainant, it is undisputed that the complainant met other members of appellant's family. It is also undisputed that appellant's brother did not witness the assault. Under these facts, we conclude that appellant has not made “some showing of prejudice” to his defense due to the death of his brother.
        After analyzing and balancing the Barker factors, we conclude that the record does not demonstrate that appellant's right to a speedy trial was violated. We resolve appellant's first issue against him.
 
Admission of Testimony Concerning Prior Sexual Assault        
 
        In appellant's second issue, he argues that the trial court erred by “allow[ing] testimony regarding an extraneous offense for sexual assault in evidence in the guilt/innocence stage of trial over the objection of defense counsel when [appellant] was never convicted of the prior charge and the prior charge involved a different victim, occurred over fifteen years ago, and [appellant] successfully completed deferred adjudication probation regarding the charge.” Specifically, appellant argues that the trial court erred by allowing the State to question him on cross-examination about a sexual assault of a woman at appellant's mother's house in 1988, for which appellant served and completed deferred adjudication probation.
A. Applicable Law
 
        We review a trial court's decision regarding the admissibility of evidence under an abuse of discretion standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). Even if we disagree with the trial court's admissibility decision, this review standard requires us to uphold that decision when it is within the zone of reasonable disagreement. Id.
        Under Texas Rule of Evidence 404(b), evidence of other crimes, wrongs, or bad acts is inadmissible if it is offered to prove the character of a person in order to show action in conformity therewith; but it may be admissible for other purposes, such as proof of motive, opportunity, intent, absence of mistake or accident, or to rebut a defensive theory. Tex. R. Evid. 404(b); Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim. App. 2001). If the defendant claims self-defense, the State may rebut this claim by introducing evidence of other violent acts in which the defendant was the aggressor. Robinson v. State, 844 S.W.2d 925, 929 (Tex. App.-Houston [1 Dist.] 1992, no pet.) (citing Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App.1988), overruled on other grounds by Alford v. State, 866 S.W.2d 619, 624 n.8 (Tex. Crim. App. 1993); Halliburton v. State, 528 S.W.2d 216, 219 (Tex. Crim. App.1975) (op. on reh'g); Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim. App.1972)).
 
B. Analysis
 
        The only two witnesses who testified during trial about the assault were the complainant, Heather Miller, and appellant. Miller testified that appellant was the aggressor. Appellant disputed her testimony and testified that Miller was the aggressor. During appellant's direct testimony, he testified repeatedly that the only times he “made contact” with Miller were in self-defense. Miller and appellant also testified at length about other incidents of domestic violence in which each alleged that the other person was the aggressor. On cross-examination, appellant repeated his claim of self-defense and repeatedly stated that he is not “a violent person.”         Thereafter, the State requested a hearing outside the presence of the jury. During that hearing, the State argued:
 
Number two, Your Honor, and the reason we're having this hearing, Bruce Charles Wilson pled guilty to aggravated sexual assault in 1988. The reason this is relevant under [Texas Rule of Evidence] 609 is because the facts which we have in front of us are exactly similar to the fact in this case. Mr. Wilson picked up a woman. The woman wanted to leave, as did Ms. Miller who wanted to leave to Nebraska. Mr. Wilson would not let the woman leave. He then drove her . . . to his mother's house, a place that he just told this jury and this Court that he would never disrespect. Told her that if she didn't do what he said, he would kill her with a guy, okay. . . . He then raped her, based on this, and she could not escape until he fell asleep. That's the exact facts that is [sic] in this case right here. Ms. Miller testified that he threatened her, that he beat her, and she could not escape until he fell asleep. It's relevant in this case, Your Honor, for the credibility of this witness and, Your Honor can put [sic] a limiting instruction only for the credibility of this witness to cover any [Texas Rule of Evidence] 403(b) argument, but under [rule] 609, it's clear that this evidence is more probative than prejudicial especially with a limiting instruction.
 
In response, the trial court questioned how appellant's testimony about the 1988 sexual assault could be admissible under Texas Rule of Evidence 609. Counsel for appellant then argued that the evidence was inadmissible under rule 609 and that the State was “trying to go under [Texas Rule of Evidence] 404(b).” Counsel for appellant did not specifically argue that the testimony was inadmissible under rule 404(b), but he did say “the objection is that this is under 609 and 404(b).” He also did not argue during the hearing that the evidence was more prejudicial than probative and therefore inadmissible under rule 403. See Tex. R. Evid. 403. At the conclusion of the sub rosa hearing, the trial court stated, in part:
 
Under Rule 404(a)(1), the character of the accused is in issue because of his claim of self-defense in this case. . . . [T]he fact that Mr. Wilson may have received deferred adjudication prevents the evidence of being convicted coming into evidence under Rule 609, so the judgment and sentence is not admissible under Rule 609. However, the facts and circumstances surrounding those other matters are admissible under Rule 404.
 
        The State then questioned appellant about the 1988 sexual assault. Appellant denied that he committed the offense, but he did admit that he received probation for the offense. Counsel for appellant objected to this questioning under Texas Rules of Evidence 403 and 404. The trial court overruled the objections. The charge of the court to the jury included the following limiting instruction:
 
You are instructed that certain evidence was admitted before you in regard to Mr. Wilson having been placed on deferred adjudication for an offense or offenses other than the one for which he is now on trial. Such evidence cannot be considered by you against Mr. Wilson as evidence of guilt in this case. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the weight you will give Mr. Wilson's testimony, and you will not consider the same for any other purpose.
 
        In his brief to this Court, appellant reiterates the reasons that this evidence was inadmissible under rule 609.   See Footnote 3  However, appellant does not argue that the evidence was inadmissible under rule 404. Instead, he argues that “the trial court failed to conduct a determination with regard to whether any probative value would be outweighed by the substantial unfair prejudice of such testimony,” as required by Texas Rule of Evidence 403. See Tex. R. Evid. 403. He also argues that “any remotely probative value of the evidence was substantially outweighed by its prejudicial and inflammatory effect.” But as the Texas Court of Criminal Appeals explained in Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 1998), in order to appeal the lack of a balancing test under rule 403, appellant was required to (1) ask the trial court to conduct that test and (2) object when the trial court failed to do so:
 
Appellant argues that the trial court should have articulated the factors it considered when overruling his Rule 403 objection, so as to facilitate appellate review. The record reflects that the trial court did not explicitly state into the record its mental process in overruling appellant's Rule 403 objection . . . . The record also reflects, however, that appellant did not ask the trial court to do so and did not object when the trial court failed to do so. Any error, therefore, has not been preserved for appellate review.
 
Jones, 982 S.W.2d at 395 (internal citations omitted). In this case, the record demonstrates that appellant did not ask the trial court to conduct a balancing test under rule 403 or object when it failed to do so. Consequently, we conclude that, as with the appellant in Jones, appellant has not preserved for our review his argument that the trial court failed to properly conduct a balancing test under rule 403. See Jones, 982 S.W.2d at 395; Tex. R. App. P. 33.1.
        Additionally, admissibility under rule 403 is distinct from admissibility under rule 404. See, e.g., Montgomery v. State, 810 S.W.2d 372, 388 (Tex. Crim. App. 1990) (op. on reh'g) (to object to evidence of extraneous offense, defendant must object under rules 403 and 404). Although appellant did object under rule 404 at trial, appellant does not argue to this Court that the evidence of the 1988 sexual assault was inadmissible under rule 404. Consequently, he has also waived the issue of whether the trial court erred in ruling that the testimony of the 1988 sexual assault was admissible under rule 404. As a result, we overrule appellant's second issue.
        But if appellant had preserved the issue of admissibility under rule 404, we would conclude that the trial court did not abuse its discretion in allowing the testimony about the 1988 sexual assault. Appellant presented evidence of self-defense; and in rebuttal, the State introduced appellant's prior sexual assault to refute this defensive theory. Evidence of prior bad acts is admissible to rebut a defensive theory. Powell, 63 S.W.3d at 439. Moreover, the jury charge included an instruction to limit the purposes for which the jury could consider that evidence. Under these facts, we would conclude that the trial court did not abuse its discretion when it ruled that appellant's testimony about the 1988 sexual assault was admissible under rule 404. See Halliburton, 528 S.W.2d at 218-19; Robinson, 844 S.W.2d at 929.
Conclusion
 
        We overrule appellant's two issues. We affirm the judgment of the trial court.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061558f.u05
 
 
Footnote 1 Appellant argues that an overcrowded court docket does not justify the delay in this case because “assault family violence cases [ ] are to be given priority” under section 23.101(a)(2)(B) of the Texas Government Code. However, family violence cases are only one of the types of cases given preference under section 23.101, and there is nothing in the record showing which cases were called to trial in advance of appellant's case in order to demonstrate that his case was not given appropriate preference.
Footnote 2 Appellant did make limited arguments to the trial court about anxiety and concern. In his motion to set aside the information, appellant generally stated that this case “has caused Mr. Wilson substantial anxiety and concern” but did not provide any particular details to substantiate this claim. At the hearing on the motion, appellant testified on direct examination about the level of his anxiety and concern as follows:
 
 
Q: Okay. Can you go over some of the stresses that this has caused you?
 
 
 
A: Well, number one, ex-military. Number two, I'm talking to myself. I just lost my brother. My mother's battling breast cancer, 72 years old. I'm driving all the way back and forth from Ellis County.
 
Appellant further testified on cross-examination about the level of his anxiety and concern, as follows:
 
 
Q: My question is: Outside of the normal day-to-day life, how has the fact that this case has been delayed, according to you, how has it affected you otherwise?
 
 
 
A: I mean, this has just taken a toll on me, sir. I don't know if you can relate to what I'm trying say to you. It's that when I'm walking around the house, I'm talking to myself about everything and what happened on May the 5th. I can't sleep at night. I'm steadily going back and forth to the hospital. Okay. And it's bad enough my mother, it's-it's just taking a toll on me. I can't even sleep at night. It's too much happening in my life right now.
Footnote 3 In its brief, the State does not argue that the testimony at issue was admissible under rule 609.