OPINION
Opinion by:
A jury found appellant Darryl Wells guilty of the murder of Tim Davila and assessed punishment at sixty-five years’ confinement. On appeal, appellant asserts the trial court erred in (1) failing to grant his motion for speedy trial, (2) admitting a deceased witness’s statements through the decedent’s wife’s testimony, (3) admitting a deceased witness’s statement identifying appellant as a suspect through a police officer’s testimony, and (4) disallowing an accomplice as a matter of law instruction in the jury charge. Additionally, appellant asserts the evidence is legally and factually insufficient to support the jury’s verdict. We affirm.
RIGHT TO SPEEDY TRIAL
In his first issue on appeal, appellant argues the trial court erred in failing to grant his motion for speedy trial.
See
U.S. Const, amend. VI, XIV; Tex. Const. art. I, § 10;
see also Barker v. Wingo,
A. The Barker Test
The speedy trial
guarantee is
designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.
United States v. MacDonald,
To determine whether the State violated appellant’s right to a speedy trial under the state or federal constitution, we weigh and balance four factors: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right; and (4) the prejudice to the accused.
See Barker,
1. Length of Delay
The
Barker
test is triggered by a delay that is unreasonable enough to be “presumptively prejudicial.”
Doggett v. United States,
The shooting death of Tim Davila occurred on January 26, 2003. On February 26, 2003, appellant was arrested in Cleveland, Ohio, on unrelated charges. While serving his time in Ohio, appellant alleges he waived extradition to Texas, which “would have made his return to Texas very easy.” However, in Texas, the “mere waiver of extradition does not rise to the level of an assertion of the right to a speedy trial.”
Burton v. State,
Here, Bexar County officials executed appellant’s arrest warrant and took appellant into custody on December 5, 2006. Appellant was then indicted on March 1, 2007. Appellant’s trial, however, was not until August 2008. Thus, for purposes of appellant’s speedy trial claim, we consider only the time period from appellant’s arrest in December 2006 until his trial in August 2008 — a delay of approximately twenty months. This delay exceeds one year and is therefore presumptively prejudicial — a conclusion the State does not dispute — and we proceed to the remaining Barker factors.
2. Reason for 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,
Here, the State points out that during the twenty-month period it filed only one motion for continuance, which was due to the unavailability of a key witness who was out of the country and thus unable to testify. Additionally, the State argues “appellant’s difficulties with his appointed counsel caused delays in his case coming to trial.” Our review of the record reveals the trial court first appointed an attorney to represent appellant on December 15, 2006 — ten days after Bexar County officials took appellant into custody. On February 16, 2007, appellant filed his first motion to dismiss appointed counsel, stating appellant “has already received ineffective assistance of counsel.” On March 30, 2007, appellant filed a second motion to dismiss appointed counsel, stating there existed “a great conflict of interest.... ” On May 22, 2007, defense counsel filed a motion to withdraw, which the trial court subsequently granted. On July 10, 2007, the trial court appointed appellant a second attorney. On February 26, 2008, appellant’s second attorney filed a motion to withdraw.
1
The trial court granted the motion and, on the same day, appointed appellant a third attorney: James Tocci. Then, at a June 16, 2008, pretrial hearing, appellant argued before the court his previously-filed motions to dismiss for lack of speedy trial. The trial court informed ap
[I]n all fairness to the lawyers who have been appointed, they are entitled to have time to get ready for trial. They cannot be expected to go to trial even though you may be familiar with the facts of the case, they have an obligation and a duty to review the State’s file, especially in light of the charges....
Our review of the record supports the State’s claim that a substantial portion of the delay was attributable to appellant. But for appellant’s complaints against two of his attorneys and a subsequent motion to withdraw by his first attorney, there would have been no need for additional time to allow appellant’s new attorneys to prepare. Thus, the State has met its initial burden of providing a justification for the twenty-month delay: it was attributable to appellant. We therefore conclude that this delay tips the scales against appellant.
3.Assertion of the Right
The third
Barker
factor requires a determination of whether the defendant asserted his right to a speedy trial.
Barker,
Appellant asserts he “signed a waiver of extradition on February 26, 2003 based on the [arrest] warrant issued February 3, 2003.” As stated earlier, however, the “mere waiver of extradition does not rise to the level of an assertion of the right to a speedy trial.”
Burton,
4. Prejudice
The fourth factor is prejudice to the defendant, which should be assessed in light of defendant’s interests.
Barker,
Appellant asserts he was “severely” prejudiced because a key witness, Marco Toledo, died before trial. Appellant argues the State profited from the delay because the trial court admitted into evidence statements made by Toledo to other witnesses, even though appellant had no opportunity to cross-examine Toledo. Ap
In order to demonstrate prejudice due to the unavailability of a witness, a defendant must, among other things, present proof that the witness would have ben-efitted his defense.
Harrison v. State,
B. Balancing the Barker Factors
While the presumption of an unreasonable delay and the assertion of a right to a speedy trial support appellant’s position, the State showed and the record supports that the delay after his arrest by Bexar County officials was mostly attributable to appellant. Although asserting a right to a speedy trial carries strong evidentiary weight in determining whether the appellant was deprived of the right, the other factors and circumstances weigh against him. Balancing these factors, we conclude the trial court did not err in denying appellant’s motion for speedy trial.
TESTIMONY OF CATHERINE HERNANDEZ
In his second issue on appeal, appellant argues the trial court erred in admitting testimony from Toledo’s wife, Catherine Hernandez. Hernandez testified that on December 4, 2007, Toledo died of heart disease. She then relayed the events of the evening of the murder: Hernandez was at home with Toledo when appellant, an acquaintance of Toledo, came to their apartment; she left the apartment to go to the laundromat; after finishing the laundry she went to her mother’s home to pick up her children, at which time she was told there had been a shooting at her apartment; upon returning to her apartment, police were present as well as her husband, who had zip ties on his wrists and duct tape on his ankles. Her testimony then relayed several statements made to her by Toledo; among other things, the testimony identified appellant as (1) the man who had a gun at the time Davila was shot and (2) one of two men who tied Toledo up and dragged him on his stomach into a back room. At trial, appellant raised hearsay objections to Hernandez’s testimony, which the trial court denied. On appeal, appellant asserts this testimony was improper hearsay and the excited utterance exception does not apply.
Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex.R. Evid. 801(d). In order for hearsay to be admissible, it must fit into an exception provided by a statute or the Texas Rules of Evidence. Tex.R. Evid. 802. One such exception is for an excited utterance. An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R. Evid. 803(2);
Salazar v. State,
We review a trial court’s determination of whether evidence is admissible under the excited utterance exception to the hearsay rule for an abuse of discretion.
Wall v. State,
Appellant cites
First Southwest Lloyds Insurance Co. v. MacDowell,
We first note several distinguishing factors between First Southwest and the case at hand. First, the eyewitness in First Southwest left the scene of the crime and returned some time later to give his statement to an investigator. Id. Here, Toledo never left the scene and was telling his wife what had happened; that is, unlike the First Southwest witness, Toledo was not responding to questions from an investigator. Second, the First Southwest eyewitness was purely an eyewitness without any other meaningful involvement. See id. Toledo, on the other hand, was present during the murder, was restrained by the suspects, and still had duct tape across his ankles and zip ties on his wrists at the time he made the statements to his wife. Third, Hernandez testified that at the time Toledo spoke to her he was “completely out of it; just rambling on and didn’t make sense at the beginning. And then [he was] really just nervous and scared. Really scared.”
We conclude the trial court did not abuse its discretion by admitting under the excited utterances exception Hernandez’s testimony about what Toledo told her shortly after the murder occurred. First, it cannot reasonably be disputed that Toledo’s statement related to a startling event. See Tex.R. Evid. 803(2). Second, Hernandez testified Toledo was “completely out of it,” “rambling,” and “really ... nervous and scared,” and therefore, her testimony supports the contention that, at the time Toledo made the statements, he was still under the stress of excitement caused by the event. See id.
LEGAL AND FACTUAL SUFFICIENCY
In his fifth and sixth issues on appeal, appellant argues the evidence is both legally and factually insufficient to support his murder conviction. Specifically, appellant contends there is no evidence he shot Tim Davila; therefore, no rational trier of fact could have found beyond a reasonable doubt that he was the shooter,
We review the sufficiency of the evidence under the appropriate standards of review.
See Jackson v. Virginia,
A person commits the offense of murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b) (Vernon 2003). Also, a “person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” Id. § 7.01(a). A person is criminally responsible for the conduct of another if “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.... ” Id. § 7.02(a)(2).
Here, ample evidence supported the State’s theory that on January 26, 2003, appellant was criminally responsible for the shooting death of Tim Davila. Appellant admitted to the police to being in the apartment when the shooting took place. Catherine Hernandez, who lived at the apartment where the shooting occurred, identified appellant and stated she saw him enter her apartment the evening of the shooting before she left for several hours to do laundry. Hernandez further testified that her late husband — Marco Toledo, who was present when the shooting occurred — told her (1) appellant had a gun at the time of the shooting and (2) appellant and another man tied Toledo’s hands with zip ties and his feet with duct tape and dragged him into another room. Police photographs confirm Toledo had zip ties around his wrists, duct tape on his ankles, and injuries consistent with rug burns on his stomach and knees.
Maurice Pineda, a friend of Tim Davila and an acquaintance of Toledo, set up the sale of marijuana from Davila to Toledo. Pineda testified two black men, one of whom he identified as appellant, were in Toledo’s apartment when he and Davila arrived. Davila had with him approximately fifty pounds of marijuana. Upon entering the apartment to make the sale, Pineda stated one of the two black men ran at him with what Pineda thought was a gun. Pineda shouted to Davila and then dropped to the floor for cover. He heard several shots fired and kept his eyes closed pretending to be dead. After a short time, he heard people leaving the apartment. He then heard Toledo — whom Pineda subsequently discovered was tied up in another room — say that they had gone. When he opened his eyes, Pineda saw Davila lying on the floor next to him shot in the head.
Six hours later, police arrested appellant and Donald Evans after a traffic stop in Sulphur Springs — a five to six hour drive from San Antonio. During a search of the vehicle, police found large amounts of cash,
At trial, it was for the jury to determine the credibility of the witnesses and the weight to give their testimony and the evidence adduced. We conclude the evidence was legally and factually sufficient to sustain the conviction based on the State’s theory that appellant and Evans worked together to steal Davila’s marijuana, an act during the course of which either appellant or Evans shot and killed Davila.
TESTIMONY OF DETECTIVE MOFFITT
In response to a very brief and narrow line of questioning by the State, Detective Moffitt testified that Toledo identified appellant as a suspect. In his third issue on appeal, appellant argues the trial court erred in admitting testimony from Detective Moffitt regarding Toledo’s identification of appellant because its admission violated appellant’s right of confrontation under both the federal constitution and the Texas Rules of Evidence. The State does not dispute that Toledo’s statement was an out-of-court testimonial statement or that Toledo was never subjected to cross-examination. Instead, the State argues appellant left a false impression during his earlier cross-examination of another detective, Ramiro Alvear, the detective who investigated the murder the evening it took place:
Q: Did Marco Toledo ever tell you that he saw [appellant] shoot anybody?
A: No, sir, he did not.
Q: And it’s true that during the investigation the officers learned that Marco Toledo was not even present when the shooting occurred. Isn’t that true?
A: No, sir. I wasn’t aware of that.
So you’re not aware of that? <©
No, sir. >
Q: But the night this happened, Marco Toledo never told you [appellant] shot anybody.
A: That is correct.
The State asserts appellant’s cross-examination of Detective Alvear opened the door for the State to correct a false impression — namely, that Toledo never told anyone appellant was the shooter, and moreover, Toledo did not place appellant at the scene the night of the shooting. The State points out it attempted to correct the false impression during its redirect examination of Detective Alvear, but appellant lodged an objection under
Crawford v. Washington,
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him.... ” U.S. Const. amend. VI. The Confrontation Clause’s central concern is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversarial proceeding before the trier of fact.
Lilly v. Virginia,
We hold defense counsel’s cross-examination of Detective Alvear called into question whether Toledo had affirmatively implicated appellant in the shooting. By asking Detective Alvear (1) if Toledo had told him whether Toledo saw appellant shoot anybody, and (2) whether officers had learned Toledo “was not even present when the shooting occurred,” defense counsel painted the picture that Toledo never implicated appellant in the shooting. Because these questions cast doubt on whether Toledo had named appellant as the shooter as well as whether Toledo had affirmatively implicated appellant, appellant created a false impression for the jury. Thus, appellant opened the door to the admission of questions regarding whether Toledo had identified appellant as a suspect, and the trial court did not err in allowing the State to ask Detective Moffitt the narrowly-tailored questions regarding the implication of appellant by Toledo. Because appellant opened the door to Detective Moffitt’s testimony regarding Toledo’s statements, its admission did not violate appellant’s right of confrontation.
JURY CHARGE
In his fourth issue on appeal, appellant argues the trial court erred when it refused to include an accomplice as a matter of law instruction in the jury charge regarding Maurice Pineda. Appellant claims Pineda’s “admitted involvement in this drug deal would have clearly implicated [him] as a party to the offense, and therefore an accomplice as a matter of law because he participated with another before, during, or after the crime.” Even assuming the trial court erred in not including the requested instruction, we conclude appellant was not harmed.
The degree of harm necessary for reversal depends on whether the error was preserved.
Hutch v. State,
Before a conviction may rest upon an accomplice witness’s testimony, that testimony must be corroborated by independent evidence tending to connect the accused with the crime. Tex.Code Crim. Proc. Ann. art. 38.14 (Vernon 2005);
Druery v. State,
Here, there was no dispute that appellant was present in the apartment when Davila was shot and killed. Toledo— through Hernandez’s testimony — identified appellant as the man who had the gun. Toledo also identified appellant as one of the two men who restrained him with zip ties and duct tape and dragged him into another room. Within six hours of the shooting, police arrested appellant and Evans after a traffic stop and found large amounts of cash, forty-five pounds of marijuana, duct tape, zip ties, and the murder weapon. In sum, even if we exclude Pine-da’s testimony, the evidence is more than sufficient to connect appellant to the committed offense. Therefore, appellant was not harmed by the omission of an accomplice-witness instruction.
CONCLUSION
We overrule each of appellant’s issues on appeal, and we affirm the trial court’s judgment.