Juan T. Jones v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-05-00777-CR
Juan T. JONES,

Appellant
v.
THE STATE OF TEXAS,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 04-CR-0726A

Honorable Mary Roman, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: January 31, 2007

AFFIRMED

A jury found defendant, Juan T. Jones, guilty of aggravated robbery with a deadly weapon and assessed punishment at ninety-nine years' confinement. Defendant complains of his conviction in four issues on appeal. We affirm.

LEGAL AND FACTUAL SUFFICIENCY

In his first and second issues, defendant asserts the evidence is legally and factually insufficient to support his conviction of aggravated robbery. Defendant contends the evidence is insufficient to prove he was one of the perpetrators, and even assuming he was one of the perpetrators, there is insufficient evidence to show he was criminally responsible for the aggravating element of the offense. We review the legal sufficiency of the 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Guervara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). We review the factual sufficiency of the evidence by considering all the evidence in a neutral light and only reversing if: (1) the evidence is so weak as to make the verdict clearly wrong or manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)); Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). The standard of review for cases involving circumstantial evidence is the same as when a case is comprised of direct evidence. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

On November 9, 2003, at about 9:30 p.m., an employee of a Hampton Inn in San Antonio was robbed at gunpoint. Jerry Soriano, a witness to the robbery, testified he was watching a football game in the lobby of the hotel when he heard a "huge bang" and saw two men wearing dark clothing enter the lobby. One of the men jumped over the counter of the front desk while the second man with a gun remained in the lobby. While the two men were in the hotel, Mr. Soriano heard tires screeching and he saw a white Camaro pull up to the hotel. He testified at trial that the Camaro had gray primer on the left rear side, although in his statement to the police he did not mention the gray primer.

Ray Neri was the employee working at the front desk of the Hampton Inn on the evening of the robbery. Mr. Neri testified that a man jumped over the counter, held a gun to his head and told him not to scream or "I'll kill you." He described the man as smelling of cigarettes, wearing stockings over his face, dark clothes, and a shiny satin-like jacket. The robber demanded and got the money from the front register and then took Mr. Neri to the back to get another money drawer. When Mr. Neri explained he needed the keys, the second man appeared, who was also wearing dark clothing. After the second man retrieved the keys, Mr. Neri gave the robbers the second drawer and was then forced at gunpoint into the bathroom. Then, after the robbers left the hotel, Mr. Neri called 911 and gave the operator a description of the men. Mr. Soriano provided a description of the Camaro to the police when they arrived.

Shortly after the Camaro's description was dispatched over the radio, Officer Saulter spotted the vehicle. Officer Saulter testified he called dispatch to confirm the description of the vehicle and was told that it had a gray patch on the side. He said the vehicle was at first traveling at a normal rate of speed and he could see what appeared to be three individuals inside the vehicle. However, when he activated his overhead lights, the vehicle sped up. While in pursuit, Officer Saulter saw a black item thrown from the driver's side of the vehicle and a "poof of money" fly into the air and fall onto the highway. The vehicle stopped in the median and all of the occupants fled the vehicle. Officer Saulter testified he chased and apprehended the defendant, who was wearing a black shirt and black pants.

Officer Vidal also was involved in the pursuit of the robbery suspects. He was told that money had been thrown from the vehicle and he proceeded to locate the discarded money with another officer. He found a pair of jeans that smelled like cigarettes wrapped around money. A third officer, Officer Henry, testified that dispatch told the officers there were three possible suspects who had robbed the Hampton Inn. He said the description of the vehicle dispatched over the radio was an older model white Chevy Camaro with gray markings on one of the back corners.

After the defendant was apprehended, a crime scene technician found, among other items, a black bandana and the partial legs of black panty hose in the driver's seat of the Camaro. The Hampton Inn money drawer was found in the front passenger floor board and cash and coins were found in the rear floorboard and backseat. The amount of money found in the drawer was only $20 to $50 less than the amount Mr. Neri testified was taken during the robbery. Mr. Neri also said that some of the coins stolen from the hotel were wrapped in plastic and some in paper similar to the coins recovered from the vehicle. No gloves or weapons were found in the vehicle, and there were no legible fingerprints. The bandana was tested, but did not match the defendant's DNA, and the DNA results from the panty hose were inconclusive. Defendant asserts that the evidence is insufficient to establish he was one of the perpetrators or that he was criminally responsible for the use of a deadly weapon. However, Mr. Neri testified he was threatened at gunpoint. Witness testimony regarding the clothing worn by the robbers was consistent with the clothing worn by the defendant when he was apprehended, and witness testimony regarding the description of the Camaro was consistent with the description of the vehicle stopped by Officer Saulter. Although there may have been some discrepancies in these descriptions, it was the jury's responsibility to resolve these conflicts and to determine the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). The money drawer identified as belonging to the Hampton Inn was found inside the vehicle and money stolen from the Hampton Inn was found on the highway after being thrown from the vehicle. While mere possession of unexplained stolen property by itself is not sufficient to support a conviction, such possession raises a permissible inference of guilt. Hardesty v. State, 656 S.W.2d 73, 77 (Tex. Crim. App. 1983) (overruling previous case law which held possession of unexplained stolen property by itself is sufficient to sustain a conviction). In addition, evidence of "unexplained possession of recently stolen property" may be a circumstance to be considered in a sufficiency analysis. See Chavez v. State, 843 S.W.2d 586, 589 (Tex. Crim. App. 1992). Finally, defendant was apprehended after he fled the vehicle and his apprehension occurred within a relatively short period of time after the robbery. See Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989) (holding the "[e]vidence of flight is admissible as a circumstance from which an inference of guilt may be drawn"); Girard v. State, 631 S.W.2d 162, 164 (Tex. Crim. App. 1982) (holding the shorter the interval between the robbery and the possession of the stolen property the stronger the evidence of guilt). After a review of the record, we hold the evidence is legally and factually sufficient to support the jury's verdict of aggravated robbery.

RIGHT TO SPEEDY TRIAL

In his third issue, defendant argues he was denied his constitutional right to a speedy trial. In reviewing a trial court's decision on a speedy trial motion, we review the trial court's determination of the historical facts under an abuse of discretion standard and conduct a de novo review of the legal components by independently engaging in the balancing test set out in Barker v. Wingo, 407 U.S. 514, 530 (1972). See Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005);Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997).

Barker requires that we balance the following four factors: (1) length of the delay; (2) reasons for the delay; (3) defendant's assertion of the speedy trial right; and (4) prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530; Kelly, 163 S.W.3d at 726. In conducting the balancing test, no single factor is determinative and the conduct of both the prosecutor and the defendant are to be weighed. See Barker, 407 U.S. at 530, 533; Munoz v. State, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

1. Length of Delay

The length of the delay is the triggering mechanism for an analysis under Barker. Barker, 407 U.S. at 530. The length of the delay is measured from the time the defendant is arrested or formally accused to the defendant's trial. See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). Texas courts have generally held that a delay of eight months or more is "presumptively prejudicial" and will trigger a speedy trial analysis. See Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002) (citing Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992)). In this case, the State concedes, and we agree, that the twenty-three-month delay between the defendant's arrest and the commencement of the trial is sufficient to trigger a speedy trial analysis under Barker.

2. Reasons for the Delay

Once it has been determined that a presumptively prejudicial delay has occurred, the State bears the initial burden of providing a justification for the delay. Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994); State v. Rangel, 980 S.W.2d 840, 843 (Tex. App.--San Antonio 1998,no pet.). We assign different weights to different reasons for delaying a trial. Munoz, 991 S.W.2d at 822.

Neither the State nor the defendant offered the trial court any evidence as to the reason for the delay. There were a total of eight resets from the date of defendant's arrest on November 9, 2003 to the actual trial on October 18, 2005. The second reset followed a change in defendant's counsel, but the remaining five resets simply show "Trial Reset-Court" and do not indicate that either the defendant or the State requested the resetting. The State concedes, and we agree, that because the record is silent regarding the reason for the delays, it weighs against the State. See Zamorano, 84 S.W.3d at 649-50. However, this factor weighs less heavily because there is no evidence the State attempted to deliberately delay the trial. See Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003).

3. Assertion of the Right

The third Barker factor requires a determination as to whether the defendant asserted his right to a speedy trial. Barker, 407 U.S. at 532; see also Munoz, 991 S.W.2d at 825 (placing the burden on the defendant to assert or demand his right to a speedy trial). The defendant's assertion of that right is entitled to strong evidentiary weight when determining whether the defendant was deprived of his right to a speedy trial. Barker, 407 U.S. at 531-532; Zamorano, 84 S.W.3d at 651. Although the defendant's failure to timely seek a speedy trial does not amount to a waiver of the right, such failure makes it difficult for a defendant to prevail on a speedy trial claim. See Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003) (citing Barker, 407 U.S. at 532).

Defendant argues his assertion of his right to a speedy trial is evidenced by the following: (1) a July 1, 2005 letter to the court requesting a speedy trial; (1) (2) an August 5, 2005 motion for speedy trial; and (3) a September 7, 2005 "Writ of Habeas Corpus Motion to Set Aside Indictment for Failure to Afford Constitutional Right to Speedy Trial." (2) However, defendant took no further action on these requests. Defendant did not pursue his speedy trial request until after the jury found him guilty and the State had rested in the punishment phase of the trial. At this point, defendant's attorney admitted the motion for speedy trial "was never heard due to the fact that we did receive the trial date a week ago, or two weeks ago, and then that was reset by the Court for one week. . . . My client has just expressed to me that he wants the writ heard." Defendant then testified, but presented no evidence on the Barker factors. (3) See Cook v. State, 741 S.W.2d 928, 940 (Tex. Crim. App. 1987),vacated and remanded on other grounds, 488 U.S. 807 (1988) (weighing the assertion of the right factor against the defendant because "there is no evidence beyond the two motions for speedy trial filed with the district clerk that appellant asserted his right to a speedy trial by requesting hearings to present evidence on the matter").

We conclude defendant's failure to obtain a hearing until he was found guilty by the jury and the State rested in the punishment phase demonstrates defendant was attempting to obtain a dismissal rather than a prompt trial. See Marquez v. State, 165 S.W.3d 741, 749 (Tex. App.--San Antonio 2005, pet. ref'd). This factor weighs against defendant based on defendant's lack of persistence.

4. Prejudice

The final factor is prejudice to the defendant, which should be assessed in light of the interests of the defendant that the right to a speedy trial was designed to protect. Barker, 407 U.S. at 532; Munoz, 991 S.W.2d at 826. These interests are: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532; Munoz, 991 S.W.2d at 826. The defendant has the burden to make some showing of prejudice caused by the delay; however, a showing of actual prejudice to the defendant's interests is not required. Munoz, 991 S.W.2d at 826. The defendant was incarcerated during the entire twenty-three months while he awaited trial, which constitutes a prima facie showing of oppressive pretrial incarceration. See Munoz, 991 S.W.2d at 828. The second consideration, minimizing defendant's pretrial anxiety and concern, was not addressed by the defendant in any of his pleadings and he did not offer any evidence to the trial court that the delay caused him any "anxiety or concern beyond the level normally associated with being charged with a felony." See Shaw, 117 S.W.3d at 890. In fact, at the hearing that occurred after defendant was found guilty and before sentencing, defendant's only reference to any anxiety was: "So I felt like me lingering in jail for that long that my constitutional rights to a fair and speedy trial was violated." Only on appeal is there a specific reference to defendant's anxiety and distress, in which it is stated, "The fact of incarceration alone obviously creates anxiety and distress for the individual. . . . Clearly, Mr. Jones was in a state of anxiety if for no other reason than the potential for conviction and a lengthy sentence. His anxiety is also manifest in his correspondence to the court, and the volume of pro se motions that he filed." However, defendant failed to provide evidence to support his claim that he experienced anxiety and distress, and, therefore, did not meet his burden.

Finally, we must determine whether defendant made a prima facie showing that his defense was impaired by the delay. This last consideration is the most serious "because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker, 407 U.S. at 532. Defendant contends his defense was impaired by the delay because he lost access to witnesses who would be expected to testify on his behalf. However, defendant did not show that the witnesses were unavailable at trial, their testimony might have been relevant and material to his defense, and that he used due diligence to locate and produce the witnesses for trial. See Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim. App. 1973); Marquez,165 S.W.3d at 750. Therefore, defendant failed to meet any of the requirements to show he was prejudiced due to a loss of access to a witness.

Defendant further contends the delay resulted in a loss of memory for at least one witness, Jerry Soriano. However, a defendant is required to show that lapses in memory are in some way significant to the outcome of the case. Munoz, 991 S.W.2d at 829 (holding that a bare assertion of dimming memories will not support a showing of an impairment to a defense). Defendant argued that "[a]ll of defendant's witnesses in all probability, has a faded or lost memory which has caused exculpatory evidence and impeachment testimony to have been diminished or ultimately lost, again resulting in an inability to present an adequate defense." However, at the hearing on his request for a speedy trial, defendant merely pointed to inconsistencies between Mr. Soriano's description of the Camaro on the night of the robbery and his description at trial.

Our review of the record as a whole supports a finding that the prejudice to the defendant was minimal. Although defendant was incarcerated for twenty-three months before the trial was held, he did not provide evidence of anxiety or distress, or that his defense was impaired. Therefore, balancing the Barker factors, we conclude that defendant's right to a speedy trial was not violated.

ENHANCEMENT PROCEDURE

In his fourth issue, defendant asserts that Texas Code of Criminal Procedure article 36.01 was violated due to the State's failure to read the enhancement allegation in the indictment prior to the punishment phase of the trial. We disagree. Prior to the punishment phase, the State requested that it be allowed to read from the "Notice of Intent to Seek Finding of Habitual Offender Status," that had been filed in the case ("pleading"), instead of reading from the original enhancement allegations found in the indictment. The indictment included two enhancement paragraphs alleging previous convictions for "Aggravated Assault with Serious Bodily Injury" and "Possession of Cocaine." However, with regard to the offense of aggravated assault, the indictment provided the incorrect date of the offense and incorrectly named the offense "Aggravated Assault with Serious Bodily Injury" instead of "Aggravated Assault by Using and Exhibiting a Deadly Weapon." The trial court granted the State's request and allowed the State to read to the jury the enhancement paragraphs from its pleading instead of reading from the original enhancement paragraphs found in the indictment. Defendant then entered a plea of "not true."

Defendant relies on Turner v. State in arguing that article 36.01 requires that the enhancement paragraphs of the indictment be read prior to the hearing on punishment. See generally Turner v. State, 897 S.W.2d 786 (Tex. Crim. App. 1995). However, in Turner the defendant's case proceeded immediately to the punishment phase from the trial without reading the enhancement portion of the information and without allowing the defendant to enter a plea. Id. at 787. In the present case, the State read the enhancement paragraphs from the pleadings and the defendant entered a plea of "not true" before his case proceeded to the punishment phase.

The Court of Criminal Appeals in Brooks v. State held that prior convictions used as enhancements need not be pled in the indictment. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997). In Brooks, the indictment did not contain an enhancement paragraph; therefore, the State filed a motion for leave to amend the indictment to add the enhancement paragraph. Id. at 31. However, the original indictment was not physically altered and at the punishment phase the State read the enhancement paragraph as if the original indictment had been physically altered. Id. The Court held, "Even if the trial court's order did not constitute an amendment, the trial court did not err in submitting the enhancement issue to the jury because enhancement allegations need not be included in an indictment." Id. at 32.

In the present case, the defendant was put on notice in the original indictment and in the subsequently filed pleading that the State intended to rely on his previous convictions to show he was an habitual offender. Therefore, we believe the reading of the enhancement allegations found in the State's pleading was sufficient. See id. at 35.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH

1. This letter is not found in the record on appeal.

2. In this pleading, defendant contends his July 1, 2005 letter requested that his trial date of July 27, 2005 not be reset. However, the record does not show there was a July 27, 2005 trial date. Instead, there was a June 27, 2005 setting that had already been reset for October 10, 2005 at the time the defendant allegedly wrote the July 1, 2005 letter.

3. Defendant focused his testimony on the argument that Mr. Soriano was coached in his testimony. Defendant also argued he had never been identified, fingerprinted, or associated with "any of this." A formal hearing on a violation of a speedy trial was not conducted and no evidence regarding the Barker factors was presented by either side.