JESUS MARIA DE LOS SANTOS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed May 3, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01692-CR
No. 05-08-01693-CR
        ............................
JESUS MARIA DE LOS SANTOS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause Nos. F07-33562-TK and F07-33563-TK
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MEMORANDUM OPINION
Before Justices Richter, Lang-Miers, Murphy
Opinion By Justice Murphy
                
        In these appeals from convictions for aggravated sexual assault of a child, we determine whether Jesus Maria De Los Santos's right to a speedy trial was violated and whether the State introduced sufficient evidence to support De Los Santos's no contest pleas. We affirm the trial court's judgments.
Background
        The cases were tried before the court in December 2008, approximately seventeen months after De Los Santos was indicted. Using diagrams of a boy and girl without clothing, the victim, De Los Santos's stepdaughter, testified in detail how De Los Santos assaulted her with his “private part” on two different occasions in two different ways-by penetrating her “bottom” and by penetrating her mouth. She was ten years old at the time of the assaults, which occurred at home during games of hide-and-go-seek with her sisters and brother. The victim testified the assaults made her feel uncomfortable, sad, and scared, but she did not immediately disclose what had happened. She told her mother a few months later in a series of written notes they exchanged. The victim testified she “was tired of it happening to [her].” She explained that she wrote her mother a note because she did not want her sisters and brother to find out or get hurt. In the note, she described what De Los Santos did to her: “puts his thing on me and makes me suck his thing.” When asked by her mother if “he put it in [her] or only [her] mouth,” she replied “both.” The victim also stated, in response to questioning by her mother, that De Los Santos had been “touch[ing]” her for a few months and that she had not said anything because she was “really scared.” The victim testified her mother asked her during one of the written exchanges if she was lying and she replied she was not. The victim admitted during her testimony that she “sometimes” lies, but denied lying about “anything important” or about the assaults.
        The victim's mother testified she was “shocked” and “disoriented” when she learned what had happened. She had separated from De Los Santos and was in a new relationship when the assaults occurred. De Los Santos still saw the children, and the victim stayed with him every other weekend. The mother explained she asked the victim if she was lying, because she wanted to give De Los Santos the benefit of the doubt. She also wanted to make sure the victim, who could “blow up a story,” was not trying to get her attention or was reacting to her new relationship. The mother then waited two days to report the assaults so she could ask De Los Santos about the allegations and talk to her family. The mother testified De Los Santos cried, apologized, and told her he did not know why he “was doing this.”         After hearing from five other victims and De Los Santos's brother, the trial court found De Los Santos guilty, found an enhancement paragraph true, and assessed a fifty-year sentence for each assault.
Speedy Trial
        De Los Santos raised his speedy trial claim in a motion to dismiss filed two months before trial. He asserted he had appeared ready for trial on five different occasions beginning in December 2007 and ending in June 2008. During that time, he remained in jail. He was released from jail on personal recognizance bonds following the June 2008 trial setting, which was continued to December 2008 at the State's request. De Los Santos claimed he had been “thwarted and prejudiced” by the delay in trial, but did not explain how.
        The trial court heard argument on the motion the day before trial. The appellate record does not contain a reporter's record of that hearing. De Los Santos claims in his brief that the delay impacted his ability to prepare against the indictments and the allegations made by the five other victims. He further claims the State offered no explanation for the delay.
Applicable Law and Standard of Review
        A speedy trial mitigates the anxiety and concern accompanying public accusation and protects a defendant from oppressive pretrial incarceration and impairment to his defense. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008) (citing Barker v. Wingo, 407 U.S. 514, 532 (1972); United States v. Ewell, 383 U.S. 116, 120 (1966)).         The right to a speedy trial attaches once a person is arrested or charged. See id. (citing United States v. Marion, 404 U.S. 307, 321 (1971)). It is guaranteed by both the Sixth Amendment to the United States Constitution and article 1, section 10 of the Texas Constitution. See U.S. Const. amend. VI; Tex. Const. art.1, § 10; Zamorano v. State, 84 S.W.3d 643, 647 & n.6 (Tex. Crim. App. 2002) (citing also to Texas Code of Criminal Procedure article 1.05 as guaranteeing speedy trial).
        While the Texas Constitution provides an independent speedy trial guarantee, the Texas Court of Criminal Appeals has traditionally analyzed speedy trial claims under the same framework established by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Zamorano, 84 S.W.3d at 648. That framework requires us to consider four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the assertion of the right; and (4) the prejudice to the defendant. Barker, 407 U.S. at 530. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial, although the length of the delay is a “triggering mechanism” for analysis of the other factors. Id. at 530, 533. The analysis is not triggered by a set time element. The court of criminal appeals has held a four-month delay to be insufficient, while finding a seventeen-month delay “presumptively prejudicial.” Cantu, 253 S.W.3d at 281 (citing Pete v. State, 501 S.W.2d 683, 687 (Tex. Crim. App. 1973); Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim. App. 1983)). If the delay is “presumptively prejudicial,” the State then bears the burden of justifying the delay and the defendant has the burden of proving the assertion of the right and prejudice. Id. at 280. The defendant's burden of proof “varies inversely” with the State's degree of culpability for the delay-the less culpability the State has in the trial delay, the more a defendant must show actual prejudice or proof of diligence in asserting his speedy trial right. Id. at 280-81.         In evaluating a speedy trial claim, we balance the State's conduct against the defendant's and consider the four factors together, along with any other relevant circumstances. Barker, 407 U.S. at 530, 533. We apply a “bifurcated standard of review” to the trial court's ruling: “an abuse of discretion for the factual components, and a de novo standard for the legal components.” Zamorano, 84 S.W.3d at 648 (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)).
 
Application of Law to Facts
        The record here reflects De Los Santos was indicted June 25, 2007 and trial was set five-and- a-half months later on December 10. That setting was reset to April 14, 2008. Two more resets occurred after that. The last reset was from June 23, 2008 to December 8, 2008, resulting in a total delay of seventeen months. This seventeen-month delay is presumptively prejudicial and the State so concedes. See Cantu, 253 S.W.3d at 281. Accordingly, we turn to the State's justification for the delay.
        The reasons for the delay given by the State at the speedy trial hearing are not before us. In its appellate brief, the State divides the seventeen-month period into three distinct time periods: (1) the period between the indictment and original trial setting; (2) the period between the original trial setting and the June 23, 2008 setting; and (3) the period between the June 23, 2008 setting and trial.
The State asserts the six-month delay between the indictment and original trial setting was reasonable and that we may presume the parties agreed to the resets between December 2007 and June 2008 because “there is nothing in the record that indicates otherwise.” As for the last reset, the State asserts it was valid because a necessary witness for the State was unavailable. The State urges that because the record reflects a valid reason for the only portion of the delay attributable to it, this second Barker factor weighs in its favor.
        We agree with the State that the six-month delay between the indictment and December 2007 setting was reasonable because the State is entitled to a reasonable period in which to prepare its case. See Shaw v. State, 117 S.W.3d 883, 889-90 (Tex. Crim. App. 2003). Given the nature of the charges against De Los Santos, the victim's age, and the number of victims, an original trial date in December 2007 was justified. We also agree with the State that a missing witness justifies a delay. See Barker, 407 U.S. at 531; Orand v. State, 254 S.W.3d 560, 567 (Tex. App.-Fort Worth 2008, pet. ref'd). The delay, however, must be appropriate. See Barker, 407 U.S. at 531. On the record before us, we cannot determine that the six-month continuance was necessarily appropriate. The State sought continuance of the June 2008 setting because a witness, the forensic interviewer, lived out of county and was unavailable. But the record does not reflect the earliest time the witness would be available or that December 10, 2008 was the earliest time trial could be scheduled. In the absence of an explanation for the delay, we cannot presume a valid reason; nor do we presume a deliberate attempt to prejudice the defense. Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). For that same reason, we also cannot presume the parties agreed to the six-month delay between December 2007 and June 2008. Unexplained delays weigh against the State. See id.; Murphy v. State, 280 S.W.3d 445, 453 (Tex. App.-Fort Worth 2009, pet. ref'd). Here, two of the three time periods identified by the State have unexplained delays.
        Turning to the two factors upon which De Los Santos bore the burden, we examine De Los Santos's actions and any claimed prejudice. He did not assert his right to a speedy trial until October 1, 2008, two months before trial and fifteen months after being indicted. Rather than seeking an earlier trial date, he sought dismissal of the charges. Although a defendant has no duty to bring himself to trial, it is his responsibility to assert his right to a speedy trial. Cantu, 253 S.W.3d at 282. Delaying a demand for a speedy trial and filing for dismissal show a desire to have no trial, instead of a speedy one. Such action weakens a speedy-trial claim. Cantu, 253 S.W.3d at 283 (dismissal); Dragoo, 96 S.W.3d at 314 (delay). This factor weighs against De Los Santos.
        The last factor of prejudice also weighs against De Los Santos. We assess this factor in light of the three interests a speedy trial protects: (1) oppressive pretrial incarceration; (2) undue anxiety and concern; and (3) impairment to the defense. Barker, 407 U.S. at 532. The last interest is the most important “because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.
        Here, although De Los Santos spent a year in jail before being released on bond in June 2008, he remained on bond through trial. He does not complain, nor does the record reflect, that he experienced undue anxiety or concern. De Los Santos argues the delay impacted his ability to investigate and prepare against the allegations because memories fade with time and the evidence of the other victims “present[ed] an almost insurmountable investigatory task.” De Los Santos acknowledges that “the record does not show specific problems in preparation and investigation.” To the contrary, the record shows no significant memory problems among the witnesses with respect to the acts De Los Santos committed, nor does it show De Los Santos was surprised by the evidence of the other victims.
        Under the facts and circumstances presented in this case, we conclude the weight of the four factors, balanced together, is against a finding that De Los Santos's right to a speedy trial was violated. The trial court did not err in denying his motion to dismiss. We overrule De Los Santos's speedy trial complaint.
        
Sufficiency of Evidence
        We next examine De Los Santos's sufficiency complaint. In arguing this issue, De Los Santos relies on the traditional factual sufficiency standard of review. Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly unjust or if the verdict, considering conflicting evidence, is against the great weight and preponderance of the evidence. See Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). The traditional factual sufficiency standard of review applies only where the federal constitution places the burden on the prosecution to establish guilt beyond a reasonable doubt. See Ex parte Williams, 703 S.W.2d 674, 682 (Tex. Crim. App. 1986); O'Brien v. State, 154 S.W.3d 908, 910 (Tex. App.-Dallas 2005, no pet.). It does not apply to felony cases where, as here, the appellant entered a plea of no contest. See O'Brien, 154 S.W.3d at 910; Young v. State, 993 S.W.2d 390, 391 (Tex. App.-Eastland 1999, no pet.). Instead, we examine whether the evidence introduced at trial embraces every essential element of the offense charged and is sufficient to establish guilt and support the plea. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996); Wright v. State, 930 S.W.2d 131, 132 (Tex. App.-Dallas 1996, no pet.).
        Based on the indictments, to establish De Los Santos's guilt and support his pleas, the State had to prove he intentionally and knowingly contacted and penetrated with his sexual organ (1) the victim's anus and (2) the victim's mouth. Tex. Penal Code Ann. § 22.021(a)(1)(B) (Vernon Supp. 2009). The State could meet its burden through the testimony of the child victim alone or her outcry statement. See Tex. Crim. Proc. Ann. art. 38.07 (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd) (child victim); Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991) (outcry).
        The victim testified in detail to what happened on each occasion. This testimony alone was sufficient to establish De Los Santos's guilt and support his pleas. De Los Santos maintains, however, that the “incriminating evidence” was weak and insufficient because the testimony of the victim and her mother was uncorroborated by medical or other outcry testimony; the victim was “known to blow a story out of proportion”; and the outcry was “arguably not even an outcry since it consisted of a series of haltingly written declarations, questioned by the mother receiving them,” and included the victim's denial that De Los Santos had “violate[d] her private parts.” De Los Santos further argues the evidence is insufficient because the mother delayed reporting the assaults because of the victim's credibility and reliability and failed to detail De Los Santos's “purported admission” to her. De Los Santos's contention that the victim denied De Los Santos “violate[d ]her private parts” in her outcry statement, however, is factually incorrect. His contention that the testimony needed to be corroborated by medical or other outcry testimony is also legally incorrect. The remaining contentions, which include arguments that the victim was known to exaggerate, the outcry was “arguably not an outcry,” and the mother did not believe the victim, go to the issue of credibility, and not sufficiency. We overrule De Los Santos's sufficiency issue.
Conclusion
        Having overruled De Los Santos's two issues, we affirm the trial court's judgments.
 
                                                          
                                                          MARY MURPHY
                                                          JUSTICE
 
 
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