Wisser v. State
350 S.W.3d 161
| Tex. App. | 2011Background
- 1984: Wisser convicted of burglary of a habitation with intent to commit rape; sentenced to 10 years' confinement, with probation for 10 years.
- Probation allowed Wisser to reside in Dallas County and report to a Dallas County probation officer.
- 1986: Capias warrant issued after Wisser failed to meet probation requirements; authorities could not locate him for about 20 years.
- April 18, 2006: Wisser located in Idaho, where he was incarcerated for felony misappropriation of personal identifying information.
- April 19, 2010: Wisser completed Idaho sentence; Texas authorities extradited him to Bexar County.
- July 9, 2010: Probation revocation hearing in Bexar County; Wisser objected to speedy-trial timing and Confrontation-Clause issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation and testimonial records in probation revocation | Wisser: probation records testimonial; Crawford applies | Wisser: Confrontation rights violated by lay testimony | Crawford does not apply to probation revocation |
| Right to a speedy probation revocation hearing | Wisser: right violated by four-year delay | State: speedy-trial rights do not apply to revocation | Speedy-trial rights apply; Barker balancing used |
| Application of Barker factors to delay | Delay prejudicial; long lapse undermines rights | Delay due to Wisser's incarceration; valid reason | No denial of speedy probation revocation rights |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial statements subject to Confrontation Clause)
- Diaz v. State, 172 S.W.3d 668 (Tex.App.-San Antonio 2005) (Crawford not applicable to probation revocation)
- Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (parole revocation is not a criminal prosecution)
- Fariss v. Tipps, 463 S.W.2d 176 (Tex. 1971) (speedy disposition of probation revocation considered)
- Carney v. State, 573 S.W.2d 24 (Tex.Crim.App. 1978) (probationers entitled to speedy revocation hearing)
- Barker v. Wingo, 407 U.S. 514 (U.S. 1972) (Barker factors for speedy-trial analysis)
- Munoz, 991 S.W.2d 818 (Tex. Crim. App. 1999) (valid delay reasons do not weigh against State)
- Cantu v. State, 253 S.W.3d 273 (Tex. Crim. App. 2008) (speedy-trial claims analyzed under Barker factors)