NO. 07-10-0255-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL D APRIL 14, 2011

__________________ ___________ JIMMY ESPINOZA, Appellant v. THE STATE OF TEXAS, Appellee

__________________ ___________ FROM THE 137TH DISTRICT CO URT OF LUBBOCK COUNTY; NO. 2002-438,658; HONORABLE CE CIL G. PURYEAR, PRESIDING

__________________ ___________ Memorandum Opinion

__________________ ___________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Jimmy Espinoza was convicted of indecen cy with a child after pleading guilty to the offense. On appeal, he argues that the indictment should have been dismissed since he allegedly was denied a speedy trial. We disagree and affirm the judgment. The right to a speedy trial encompasses not only the mere right to speed but an “orderly expedition” of the charge. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459-60, 30 L.Ed.2d 468 (1971); State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). In determining whether both were afforded, four factors must be balanced2 which factors consist of 1) the length of th e delay, 2) the reason for the delay, 3) the time at which the defendant asserted the right, and 4) the prejudice, if any, suffered by the defendant due to the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17 (1972); Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997). If there is no undue delay, the court has no reason to address the remaining three factors. State v. Munoz, 991 S.W.2d. at 821. Fina lly, in reviewing the trial court’s denial of the motion to dismiss for lack of a speedy trial, we defer to the trial court on matters involving the resolution of hist orical facts, but apply the law to the four factors de novo. Johnson v. State, 954 S.W.2d at 771. Length of Delay Appellant was indicted on J anuary 9, 2002, and did not go to trial until 2010. Given that the seventeen-month delay in Munoz was sufficiently prejudicial to trigger consideration of the remaining three factor s, we deem the seven to eight-year delay sufficient to do so here. Reason for the Delay The reason for the delay does not appear in the record; apparently, the matter “slipped through the cracks.” Though an una cceptable explanation and one that should be avoided, it happens. And, wh ile this does not bode well for the State, appellant did not contend that t he prosecutor was responsible for it. 1 So the factor, while favoring appellant, does not weigh heav ily against the State. 2 Murphy v. State, 280 S.W.3d 445,

1 Counsel stated at the hearing: “. . . I know the State didn’t have any control over this, so I’m not saying they’re bad guys.”

2 The State did file one motion for continuance in April 2010, because of the unavailability of a witness for trial.3 453 (Tex. App.–Fort Worth 2009, pet. ref’d) (stating that the lack of an explanation for the delay weighs agai nst the State but not greatly when there is no evidence that the prosecutor purposefully engaged in dilatory tactics)

. Assertion of Right Appellant filed a request for appointm ent of counsel on February 6, 2002. Nothing in that document mentions a request fo r a speedy trial. A ppellant then sent the court a letter dated January 2, 2003, in wh ich he expressed concern about a detainer against him out of Lubbock County. He further stated: “It is my interst [sic], and request, that county officials bench warrant me before the court to face proceedings if necessary, in that so my defense is not further impinged upon.” Additionally, a handwritten notation on the Januar y 2003 letter indicates that it was filed by the clerk with no action by the court. And though appellant te stified at the hear ing that he wanted a speedy trial, there was no further comm unication between him and the court until September 2, 2009. On the la tter date, he again sought t he appointment of counsel. That letter made no mention of a request for a speedy trial, however. And, counsel was appointed for him on December 17, 2009. Next, rather th an demand a trial, appellant filed his motion to set aside the indictment for failure to provide him a speedy trial on May 19, 2010. This suggests that appellant initially intended to timely address the accusation, but the intent w aned. One viewing these ci rcumstances could reasonably deduce that appellant was less than diligent in asserting his ri ght to a speedy trial. See McIntosh v. State , 307 S.W.3d 360, 368 (Tex. App.–San Antonio 2009, pet. ref’d) (stating that the defendant has t he burden to show he acted d iligently in pursuing his right to a speedy trial).4 Prejudice A speedy trial is designed to protect the interests of 1) preventing oppressive pretrial incarceration, 2) minimizing the an xiety and concern of the accused, and 3) limiting the chance that the accus ed’s defense will be impaired. State v. Munoz, 991 S.W.2d at 826. The last of these factors is the most im portant since the ability to adequately defend oneself affects the fa irness of the legal system. Id. We note that appellant was incarcer ated throughout the period between indictment and conviction. Ye t, the loss of his liberty was due to a previous conviction for burglarizing a habitation and the a ttendant sentence of twenty-five years imprisonment. So, it cannot be said that any delay in prosecuting the indictment underlying this appeal exposed him to any oppr essive pretrial incarceration. See Hill v. State, 213 S.W.3d 533, 541 (Tex. App.–Texarkana 2007, no pet.) (conc luding that the factor weighed against the accused when he was already incarcerated on another charge). Being already incarcerated also tends to minimize any complaint about the delay causing appellant to suffer anxiety about or concern for the loss of his liberty. And, aside from the allegations that his ability to gain parole, enjoy educational benefits, or receive some type of elevated prisoner status were affected, nothing of record suggests that the delay caused him any other type of m ental or physical anxi ety or concern. As for the parole issue, appe llant failed to illustrate what the parole laws were and how a pending charge for indecency with a mi nor would affect hi s ability to be paroled. In fact, the only parole hearing he mentioned at which the indecency charge was broached occurred in 2001, according to appellant. Apparently, there was no5 mention of the offense by the parole committ ee once appellant was i ndicted a year later in 2002. This scenario tends to suggest that the committee cared more about an offense before it was formally charged than afte r, which, in turn, seems rather illogical and renders appellant’s testimony a bit suspect. And, if the topic is not broached again, one could think that the charge had little impact upon his rema ining in prison, assuming arguendo that his conduct while imprisoned and pr ior convictions rendered him subject to parole. And, as for the impact of t he charge on appellant’s prisoner status and educational opportunities, nothing of record de scribes the particular levels available or the criteria for securing a better status or attending classes. Nor did appellant proffer evidence of his conduct while in prison fr om which one could begin to infer that he would have garnered better treatm ent but for the pending crimin al charge. Simply put, all depended upon the credibility of the witness involved, i.e. appellant, and the trial court had the option to find hi m not credible, especially given the conclusory nature of the testimony. Finally, appellant claims t hat the delay impaired his ab ility to secure various witnesses to assist in his defense. Yet, the evidence regarding their availability is mixed at best; its tenor did not obligate the trial c ourt to find that they were unavailable. Moreover, appellant failed to develop the nature of the te stimony that those witnesses purportedly would utter. Nor did he illustrate, or attempt to il lustrate, that it would favor him in any way. Given this deficiency, one would only be gue ssing if he was to conclude that the supposed absence of the witnesses prejudiced appellant. See Harrison v. State, 282 S.W.3d 718, 722 (Tex. App.–Amarillo 2009, no pet.) (stating that to show prejudice due to t he unavailability of a witness, the defendant must provide6 proof that the witness would have benefited the defense). This seems especially so when the accused (who previously suggeste d that witnesses were needed to help prove his innocence) eventually admitted his cul pability and pled guilty to the charge, like appellant. In sum, we are troubled by the dela y between indictment and trial (or guilty plea as the case may be), here. Yet, it must be remembered that appel lant was already in prison for committing some other felony. Thus, the impact upon his liberty wrought by awaiting trial was questionable at best. It is difficult to lose what you do not have. And, after consideration of all the Barker factors, we cannot say that the efficacy of the process itself was impugned to such an extent that dismissal of the indictment was warranted. Accordingly, the issue is overruled and the judgment is affirmed.

Brian Quinn Chief Justice Do not publish.