Tommy Joe RAMIREZ, Appellant, v. The STATE of Texas, Appellee.
No. 08-94-00195-CR.
Court of Appeals of Texas, El Paso.
March 3, 1995.
In point of error number one, appellant argues that photographs of victim Alamia should have been excluded. The eight pictures in question are in color and are pre-autopsy depictions. Alamia‘s body is not clothed and she has been placed upon a clean metal gurney. The photos are three and one-half by four inches in size. Each photo clearly shows a different portion of the body and its markings. They are not overly gruesome in that they are not blown-up nor do they present any great detail. In examining the record, the medical examiner used these photographs to explain to the jury the manner and cause of death, and to explain the other red markings on the body. The pictures showed that Alamia‘s body had been plagued by numerous ant bites. This evidence substantiated the State‘s claim of where the offense occurred and where appellant left the bodies. See Caraway v. State, 550 S.W.2d 699, 703 (Tex.Crim.App.1977) (photographs of victim‘s body admissible to aid in description of where offense committed). Further, the body was cleaned and had no extraneous blood or foreign material attached. The photos present a sterile and clean environment in the examiner‘s room. Depictions from the crime scene itself are not shown. The photos simply show the entry and exit bullet wounds, and the other bruises produced by the killer and the ant bites. These circumstances support the trial court‘s finding that the prejudicial effect of the photos, if any, did not substantially outweigh their probative value. Point of error one is overruled.
In point of error two, appellant argues that photographs of victim Ferreya should have been excluded. The seven photos of Ferreya are identical to those of Alamia. The only noticeable difference is that Ferreya‘s body is not depicted from the waist down. They are not overly gruesome in that they are not blown-up nor do they present any particularly great detail. Two photos do, however, depict a detailed picture of Ferreya‘s head and face. These exhibits were used to more exactly show the wounds she sustained and her manner of death. The wounds were cleaned and sterile. Again, the State offered the pictures to explain to the jury the manner and cause of death, and to explain the other red markings on the body. Again, the body was cleaned and had no extraneous blood or foreign material attached. The photos simply show the entry and exit bullet wounds, and the other bruises produced by the killer and the ant bites. These circumstances support the trial court‘s finding that the prejudicial effect of the photos, if any, did not substantially outweigh their probative value. Point of error two is overruled.
Accordingly, we AFFIRM the trial court judgment.
J.K. “Rusty” Wall, Midland, for appellant.
Al W. Schorre, Jr., Dist. Atty. of Midland County, Midland, for State.
Before BARAJAS, C.J. and MCCLURE and CHEW, JJ.
OPINION
MCCLURE, Justice.
Tommy Joe Ramirez appeals his conviction for possession of a deadly weapon in a penal institution, enhanced. A jury found Appellant guilty and the court, upon finding both enhancement paragraphs true, assessed his punishment at thirty-five years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm.
In his first point of error, Appellant contends that he was denied his right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Texas Constitution.1 The right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment. Barker v. Wingo, 407 U.S. at 515, 92 S.Ct. at 2184, 33 L.Ed.2d 101. The same right is provided to an accused under the Texas Constitution.
Appellant was arrested for this offense on April 15, 1993, and formally charged by an indictment filed on May 21, 1993. The trial court first set Appellant‘s case, along with twenty-nine other criminal cases, for jury trial on September 27, 1993. According to the court‘s setting notice, the cases were to be called in sequential order. Appellant‘s case, which was twenty-fifth on that list, was apparently not reached during that trial week. Consequently, his case was re-set for trial as the twenty-second case on November 8, 1993. Again, his case was not reached. On January 31, 1994, Appellant, acting pro se even though he was represented by appointed counsel, filed a document entitled “Motion for Speedy Trial.” After a brief hearing conducted on March 17, 1994, the trial court set Appellant‘s case for trial to begin on March 28, 1994. Appellant claims in his brief that trial began on April 10, 1994. However, our review of the record reveals that trial began on March 28, 1994.
A. Presentation of Speedy Trial Claim at Trial
Before we are required to analyze the asserted denial of Appellant‘s right to a speedy trial, the record must reflect that Appellant raised his speedy trial claim in the trial court. See Mulder v. State, 707 S.W.2d 908, 914-15 (Tex.Crim.App.1986) (defendant‘s failure to file motion to dismiss on speedy trial grounds in trial court presented nothing for review on appeal); Serna v. State, 882 S.W.2d 885, 889-90 (Tex.App.-Corpus Christi 1994, no pet.) (the appellant has the burden to establish that he asserted the right to a speedy trial in the trial court; asserting the right for the first time on appeal waives the issue). In this case, Appellant presented his claim to the trial court in a pro se motion for speedy trial which the court considered during pretrial hearings.
B. Barker v. Wingo Analysis
The framework for Sixth Amendment speedy trial analysis was set forth by the United States Supreme Court in Barker v. Wingo. Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App.1994). No definite period of time has been held to be a per se violation of a defendant‘s right to a speedy trial; alleged violations are considered on a case by case basis. Emery, 881 S.W.2d at 708, citing Barker v. Wingo, 407 U.S. at 529-30, 92 S.Ct. at 2191-92. When engaging in the Barker v. Wingo balancing test, the reviewing court must consider four factors:
- the length of the delay;
- the reason for the delay;
- whether the defendant asserted his speedy trial rights; and
- any resulting prejudice to the defendant.
Emery, 881 S.W.2d at 708, citing Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2191. None of the four factors alone is a necessary or sufficient condition to finding a deprivation of the right to a speedy trial. See Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. at 2193.
C. Burden of Proof
The defendant has the burden of first showing that sufficient delay has occurred to require application of the Barker v. Wingo balancing test. State v. Hernandez, 830 S.W.2d 631, 635 (Tex.App.---San Antonio 1992, no pet.)
D. Application of the Factors
1. Length of the Delay
The length of the delay is measured from the time the defendant is arrested or formally accused. Harris, 827 S.W.2d at 956, citing United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). To some extent, the length of the delay is a triggering mechanism, so that a speedy trial claim will not be heard until passage of a period of time that is, prima facie, unreasonable under the existing circumstances. Harris, 827 S.W.2d at 956, citing Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192. There must be enough of a delay to be presumptively prejudicial to the defendant before it becomes necessary to consider the other three factors in the Barker analysis. Emery, 881 S.W.2d at 708; Lazcano v. State, 836 S.W.2d 654, 657 (Tex. App. El Paso 1992, pet. ref‘d).
Appellant‘s case was not tried until eleven months after his arrest. The case was not complicated and the State‘s case-in-chief consisted of only two witnesses. Even though there is no evidence that the delay was deliberately caused by the State, we find the delay sufficient to require us to consider the remaining factors.
2. Reason for the Delay
The State has the initial burden of justifying a lengthy delay. Emery, 881 S.W.2d at 708; Turner v. State, 545 S.W.2d 133, 137-38 (Tex.Crim.App.1976). In light of a silent record or one containing reasons insufficient to excuse the delay, it must be presumed that no valid reason for delay existed. Turner, 545 S.W.2d at 137-38. In examining the reasons for the delay, different weights should be assigned to different reasons. Emery, 881 S.W.2d at 708. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the State. Emery, 881 S.W.2d at 708. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily, but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the State rather than with the defendant. Emery, 881 S.W.2d at 708.
The State did not put on any evidence at the pretrial hearing for the purpose of explaining the delay. Appellant would have us hold this failure to directly explain the reason for the delay at the hearing against the State. While it might be the better practice for the State to offer evidence and provide a direct explanation, we do not construe Barker v. Wingo or Turner as requiring the State to do so in every case. The State has met its burden of providing a reason for the delay if the record reflects sufficient reasons. Furthermore, when we consider the manner in which Appellant presented his claim to the trial court, we find it inappropriate to hold the failure to put on evidence at the hearing against the State. In his written motion, Appellant specifically requested that the trial court immediately set his case for trial or dismiss the indictment. Thus, he expressly sought dismissal of the indictment only if the court did not grant his request for an immediate trial. The trial court initially entered an order refusing to consider Appellant‘s pro se motion on the ground he was represented by appointed counsel. Our review of the record reveals that the pretrial hearing was not called for the purpose of considering the speedy trial motion, but rather addressed Appellant‘s complaints about his trial counsel‘s lack of communication with him. When the court advised Appellant that he would appoint a different attorney to represent him, Appellant asked the trial judge to reconsider his motion for speedy trial and allow trial counsel to remain on his case. In response, the judge stated he would provide Appellant with a trial the next week and allow trial counsel to remain on the case, but he would appoint an additional attorney to represent Appellant along with trial counsel. Appellant presented no evidence on his motion, and in fact, seemed satisfied with the
On appeal, the State argues that the delay was due to: (1) a crowded criminal trial docket; (2) miscommunication or lack of communication between Appellant and trial counsel; and (3) plea negotiations. The evidence supports only the first proffered explanation. Appellant‘s case was first set for trial less than four months after his arrest, but was not reached on two occasions due to the large volume of cases on the trial docket. Although there is some evidence in the record that Appellant perceived that trial counsel had not adequately communicated with him, there is no evidence from which we can infer that any problem between Appellant and counsel contributed to the delay. Finally, the State argues that ongoing plea negotiations contributed to the delay. With regard to those negotiations, we have found only one small reference in the record. In a pretrial hearing held on March 23, 1994, Appellant‘s trial counsel stated to the trial court that the plea agreement that had been previously announced had not been consummated. While this is some evidence that plea negotiations were ongoing, there is no evidence that the negotiations contributed to the delay. Thus, we find that the record supports only the State‘s first explanation. Since the delay in this case was not unduly protracted and is due to a crowded trial docket, this factor does not weigh heavily against the State.
3. Assertion of the Right to a Speedy Trial
Even though Appellant‘s case had twice been set for trial, there is no evidence in the record that Appellant objected to the delay when the trial was re-set. Further, he did not raise a speedy trial complaint until January 31, 1994. Although this failure to invoke the right earlier did not amount to waiver, failure to assert the right makes it difficult for Appellant to prove he was denied a speedy trial. Harris, 827 S.W.2d at 957. In other words, Appellant‘s lack of a timely demand for a speedy trial indicates that he did not vigorously pursue a speedy trial. Id. Because Appellant did not persistently assert his right to a speedy trial, we do not weigh this factor heavily in his favor.
4. Prejudice
Finally, we must determine whether Appellant suffered prejudice as a result of the delay. Although a showing of actual prejudice is not required, it is the defendant‘s burden to make a showing of prejudice. Oliver v. State, 731 S.W.2d 149, 159-60 (Tex.App.-Fort Worth 1987, pet. ref‘d). A mere passage of time is not prejudicial and will not result in a denial of speedy trial. Id. at 160. Prejudice must be assessed in the light of the interests of defendants which the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. Harris, 827 S.W.2d at 957. Appellant did not suffer oppressive pretrial incarceration because he was already incarcerated on other charges when he committed the instant offense. With regard to the undue anxiety factor, Appellant asserts that he produced unrefuted evidence of anxiety and concern over his length of incarceration at the March 17 hearing. When asked by the trial court whether he would like to go to trial the next week, Appellant told the trial court the following: “Well, it don‘t matter with me, you know. I mean, if not, you know, I mean, or I guess the sooner the better, I guess, because I‘ve been here so long.” We do not interpret Appellant‘s comments as evidencing any undue anxiety or unusual concern.
Appellant also asserts that his defense was impaired by the delay. His defense at trial was that other inmates had access to his cell and could have left the “shanks” on his nightstand. Appellant claims in very general terms that the delay hampered his ability to prepare and present this defense due to a lack of jail records,2 inmate population
After balancing the above factors, we conclude Appellant was not denied his right to a speedy trial. The State acted with reasonable diligence in bringing Appellant‘s case to trial, and the delay between arrest and trial, due to a crowded trial docket, was not unduly protracted.3 Further, the delay caused no prejudice to Appellant. Accordingly, Appellant‘s first point of error is overruled.
II. Sufficiency of the Evidence
Appellant contends in his second point of error that the evidence is insufficient to show that he possessed the deadly weapon because the evidence did not prove “physical possession.” In Point of Error No. Three, he asserts that the evidence is insufficient to show that he concealed the deadly weapon. In reviewing the sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App.1991). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. The standard of review is the same for both direct evidence and circumstantial evidence cases. Geesa, 820 S.W.2d at 158. Further,
The indictment, omitting the formalities, alleged that Appellant:
[W]hile confined in a penal institution, to-wit: the Midland Central Detention Center, did then and there intentionally and knowingly possess and conceal a deadly weapon, to-wit: a toothbrush with one end sharpened to a point which said toothbrush was manifestly adapted for the purpose of inflicting death or serious bodily injury;
While the indictment alleges a violation of former
We will first determine whether the evidence is sufficient to show that Appellant possessed the deadly weapon. The evidence at trial, when viewed in the light most favorable to the verdict, reflects that Appellant was incarcerated in the Midland Central Detention Center on the day of this offense. At approximately 7 a.m. on April 12, 1993, Deputy Alan Thompson, a jailer, testified that as he performed the routine head count and roll call, he noticed that Appellant had placed paper over the emergency light on the ceiling, thereby dimming the light in the cell. The emergency light stays on twenty-four hours a day and operates even in the event of a power outage. On the two previous days, Appellant had covered the light in the same manner, but had removed the paper upon Thompson‘s request. On this morning, however, Appellant refused to remove it. Thompson entered the cell to remove the paper. Appellant, who had been standing by the door, walked over to the bed and sat down next to the nightstand which had papers and a milk carton from breakfast on it. Thompson, noticing that Appellant looked furtively at the nightstand, ordered Appellant to move so that he could step up onto the nightstand. Thompson then removed the paper from the light. Upon stepping down, Thompson saw several pills on the nightstand in violation of a jail rule which prohibited inmates from hording medicine. In confiscating the pills, Thompson moved a piece of paper and saw the point of a “shank” sticking out from under the papers.
Thompson testified that the shank had been made from a toothbrush. The handle portion of the toothbrush had been ground into a sharp point, while the bristle end had been wrapped with strips of a T-shirt to form a handle. The weapon also had a string attached to it that could be used to wrap around the wrist so that the knife would not be lost if dropped in a fight. Thompson instructed Appellant to stand against a wall and immediately confiscated the weapon while he called Deputy Brian Webb to assist him. Thompson and Webb decided to place Appellant in a segregated cell area referred to as “separation” which is used for disciplinary action. Thompson told Appellant that he was being transferred to “separation” and ordered him to gather his belongings, which included not only jail-issued items, but also his personal possessions. After Appellant finished packing his belongings in a plain brown paper bag, Thompson and Webb took him out of the cell into a secured area. They ordered Appellant to put his hands against the wall and they performed a pat-down search of his outer clothing. In searching through the paper bag, Thompson found another shank. He said that the bag contained envelopes, papers, a T-shirt, and some of Appellant‘s “other stuff.”
Because this is a possessory offense, the State was required to prove that Appellant knew of the weapon‘s existence and that he exercised actual care, custody, control, or management over it. See Young v. State, 752 S.W.2d 137, 139-40 (Tex.App. — Dallas 1988, pet. ref‘d); Vela v. State, 681 S.W.2d 739, 740 (Tex.App.-Houston [14th Dist.] 1984, pet. ref‘d);
Inconsistent with the statutory definition of possession, Appellant contends that the evidence is insufficient because he was not in “physical possession” of either shank. The cases he cites, namely, Graybill v. State, 601 S.W.2d 353 (Tex.Crim.App.1980), Berry v. State, 833 S.W.2d 332 (Tex.App. Waco 1992, no pet.), and Thomas v. State, 801 S.W.2d 540 (Tex.App.-Houston [14th Dist.] 1990), rev‘d, 821 S.W.2d 616 (Tex.Crim.App.1991), do not support this proposition. Both Berry and Thomas involved only the question of whether the evidence was sufficient to show that a particular shank was a deadly weapon. Neither case stands for the proposition that the State was required to prove “physical possession” in order to obtain a conviction. In Graybill, the Court of Criminal Appeals held only that the defendant was entitled to a charge on circumstantial evidence where the evidence showed that the defendant was not in physical possession of the weapon found under a motel room bed, the motel room in which the weapon was found was not registered in the defendant‘s name, and the defendant was not alone in the room. Graybill, 601 S.W.2d at 353-55. This case is distinguishable. Even though the evidence did not show that Appellant was in physical possession of the weapons, he had sole and exclusive possession of his cell and the weapon was found amongst his personal possessions.
We find the evidence sufficient to show that Appellant possessed both weapons. Appellant was the sole occupant and had exclusive possession of his jail cell at the time both shanks were found. Both shanks were found intermingled with his personal possessions. After Thompson entered the cell, Appellant moved over to the bed, sat next to the bedside table, and glanced furtively in that direction even though the weapon was covered from Thompson‘s view by the papers. The evidence also permits an inference that Appellant placed the second shank in the paper sack along with his other possessions when told that he was being transferred to segregation. As further evidence of his guilty knowledge, Appellant refused Thompson‘s request to remove the paper covering the ceiling light. Under these circumstances, a rational trier of fact could conclude that Appellant had knowledge of the existence of both weapons and exercised control over them. See Patterson v. State, 723 S.W.2d 308, 312 (Tex.App.- Austin 1987), aff‘d, 769 S.W.2d 938 (Tex.Crim.App.1989) (defendant‘s proximity to contraband, commingling of his personal belongings with contraband on table top, and possession of loaded concealed weapon of caliber matching that of ammunition mixed with contraband provided sufficient evidence to permit inference of knowing possession of controlled substance); see also Hazel v. State, 534 S.W.2d 698, 700 (Tex.Crim.App.1976) (proof that a pistol was found on the floorboard of an automobile, partially under the driver‘s seat, is sufficient to establish possession of the weapon by the driver). Point of Error No. Two is overruled. Because the evidence is sufficient to show possession of the deadly weapon, it is unnecessary for us to consider whether the evidence is also sufficient to show that Appellant concealed the deadly weapon. Accordingly, we do not address Point of Error No. Three.
Having overruled Points of Error Nos. One and Two, the judgment of the trial court is affirmed.
CHEW, Justice, dissenting.
I respectfully dissent. The majority excuse the delay of trial in this case after a thorough and thoughtful inquiry. I would not be so patient for two reasons. I explain the second, first.
First, the right to a speedy trial is clearly a fundamental right; contained within the Magna Carta, the bill of rights of the first colonies, and in every constitution of the fifty states. Yet, our application of this fundamental right can apparently only be applied by the application of a mechanical formula immediately weighted in favor of the State.
Second, we ignore the “social interest[s] in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.” Barker v. Wingo, 407 U.S. at 519, 92 S.Ct. at 2186. In this case, the Appellant suffered eleven months of pretrial confinement, but so did the taxpayers of Midland County who paid for each day of those eleven months. Doesn‘t the public also have a stake in seeing that justice is timely and not delayed? I believe that the community also has an interest and right to a speedy trial.
Relief from overcrowded dockets must eventually come from the legislature to authorize new courts, but meanwhile, the courts must seek interim remedies, there being many to avoid the only remedy this Court may impose---dismissal, to avoid the kind of trial delay suffered here.
MCCLURE
Justice