in the Interest of E.A.R., E.A.R., and I.D.A., Children

IN THE TENTH COURT OF APPEALS No. 10-06-00037-CV In the Interest of E.A.R., E.A.R., and I.D.A., Children From the 13th District Court Navarro County, Texas Trial Court No. 04-00-13593-CV noTICe and briefing order The Court has reviewed the record and the briefs filed by Appellant and Appellee. After our review, the Court questions its ability to address any issue raised in Appellant’s brief because no statement of points was filed as required by Texas Family Code section 263.405(b). See Tex. Fam. Code Ann. § 263.405(i) (Vernon Supp. 2005); In re S.E., No. 04-05-00750-CV, 2006 Tex. App. LEXIS 2343, *3 (Tex. App.—San Antonio March 29, 2006, no pet. h.); In re J.M.S., No. 06-05-00139-CV, 2005 Tex. App. LEXIS 10524, *2 (Tex. App.—Texarkana Dec. 20, 2005, no pet.). Appellant has 14 days from the date of this order to file a supplemental brief which addresses this issue and explains why the issues in the brief filed on March 9, 2006 should not be dismissed and the judgment affirmed. Tex. R. App. P. 38.9(b). PER CURIAM Before Chief Justice Gray, Justice Vance, and Justice Reyna (Justice Vance not participating) Response requested Notice issued and filed April 26, 2006 Publish argin-left:.65in;margin-bottom:.0001pt;text-align:justify;layout-grid-mode: char'> (1) any part of the body; or (2) any physical object connected with the body. Tex. Penal Code Ann. § 30.02(b) (Vernon 2003). Jenkins contends that the evidence that he entered the victim’s girlfriend’s apartment, and that he did so without the victim’s consent, was insufficient. Legal Sufficiency. In Jenkins’s first issue, he contends that the evidence was legally insufficient. “In assessing the legal sufficiency of the evidence to support a criminal conviction under Jackson v. Virginia, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.” Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (internal footnote omitted): see Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Foster v. State, 635 S.W.2d 710, 718 (Tex. Crim. App. [Panel Op.] 1982) (op. on reh’g). “A ‘legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence.’” Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (quoting Cardenas v. State, 30 S.W.3d 384[, 389] (Tex. Crim. App. 2000)). “[C]ourts reviewing all the evidence in a light favorable to the verdict must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review.” Evans v. State, 202 S.W.3d 158, 165 n.27 (Tex. Crim. App. 2006) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 821 (Tex. 2005)). First, Jenkins argues that there was no evidence that he entered the apartment. Jenkins points to the victim’s testimony to the effect that he did not know whether Jenkins’s feet came inside the apartment. Jenkins, however, notes the victim’s testimony to the effect that Jenkins’s arm and hand holding the gun were inside the apartment, and had to be in order to shoot the victim. The State also points to shell casings found inside the apartment. A police detective testified that shell casings found there would have landed there only if the gun were inside the apartment when Jenkins fired the gun. A rational jury could have found beyond a reasonable doubt that Jenkins entered the apartment. Next, Jenkins argues that he did not enter the apartment without the victim’s consent. Jenkins argues that “there was no direct unequivocal evidence to support the State’s theory that the consent that had been once conferred to enter the apartment was revoked—the closing of the front door.” (Br. at 7-8.) Jenkins argues, “Complainant never testified he actually closed the door.” (Id. at 7.) Jenkins notes, however, “What [the complainant] did testify to was he ‘swung’ it closed.” (Id. (quoting 4 R.R. at 158).) The State points to the victim’s unequivocal testimony that he slammed the door shut. A rational jury could have found beyond a reasonable doubt that the victim closed the apartment door and thus revoked his consent for Jenkins to enter the apartment. The evidence was legally sufficient. We overrule Jenkins’s first issue. Factual Sufficiency. In Jenkins’s second issue, he contends that the evidence was factually insufficient. “In a factual sufficiency review, the evidence is reviewed in a neutral light . . . .” Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007), cert. denied, 76 U.S.L.W. 3165 (U.S. Oct. 1, 2007) (No. 07-5500); accord Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). “There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?” Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006) (quoting Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004), overruled on other grounds, Watson at 405). “Evidence is factually insufficient when . . . the evidence is ‘so weak’ that the verdict ‘seems clearly wrong or manifestly unjust,’ or the verdict is ‘against the great weight and preponderance of the evidence.’” Castillo v. State, 221 S.W.3d 689, 693 (Tex. Crim. App. 2007) (quoting Watson at 414-15, 417). “[A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the . . . evidence contradicts the jury’s verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial.” Watson at 417. Jenkins points, besides the evidence pointed to above, to evidence that the victim had received notice that the victim’s entry onto the area outside the apartment was forbidden. See Tex. Penal Code Ann. § 30.05(a), (b)(2) (Vernon Supp. 2006). Jenkins argues that, that was the reason for the victim’s going inside the apartment instead of talking to Jenkins outside the apartment. Considering all of the evidence in a neutral light, a jury was rationally justified in finding beyond a reasonable doubt that Jenkins entered the apartment without the victim’s consent. The evidence was factually sufficient. We overrule Jenkins’s second issue. Speedy Trial. In Jenkins’s third issue, he contends that the trial court erred in overruling Jenkins’s “Motion to Dismiss (Constitutional Right to a Speedy Trial).” “In all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial . . . .” U.S. Const. amend. VI; see Tex. Const. art. I, § 10. “In reviewing the trial court’s ruling on appellant’s federal constitutional speedy trial claim, we apply a bifurcated standard of review: an abuse of discretion standard for the factual components, and a de novo standard for the legal components.” Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) (citing State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999)); accord Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005). Where the “appellant lost in the trial court on his speedy trial claim, we must presume the trial court resolved any disputed fact issues in the State’s favor, and we must also defer to the implied findings of fact that the record supports.” Zamorano at 648 (citing Munoz at 821); see Kelly at 726-27. “An appellate court reviewing a trial court’s ruling on a motion to dismiss for want of a speedy trial must do so in light of the arguments, information, and evidence that was available to the trial court at the time it ruled.”[1] Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); accord Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). “In determining whether a criminal defendant has been denied his federal or state constitutional right to a speedy trial, a court must use a balancing test in which the conduct of both the State and the defendant are weighed.” Shaw, 117 S.W.3d at 888; see Barker v. Wingo, 407 U.S. 514, 530 (1972); Kelly, 163 S.W.3d at 724, 726. “[S]ome of the factors which courts should assess in determining whether a particular defendant has been deprived of his right” to a speedy trial are: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker at 530; see Shaw at 889. “The first factor, the length of the delay, is measured from the time the defendant is arrested or formally accused.” Shaw, 117 S.W.3d at 889 (citing United States v. Marion, 404 U.S. 307, 313 (1971)). “The length of the delay is to some extent a triggering mechanism.” Barker, 407 U.S. at 530. “[A] speedy trial claim will not be heard until the passage of a period of time that is prima facie unreasonable under the circumstances.” Shaw at 889 (citing Doggett v. United States, 505 U.S. 647, 651-52 (1992)). “In general, delay approaching one year is sufficient to trigger a speedy trial inquiry.” Id. (citing Doggett at 652 n.1). “If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Id. (quoting Doggett at 652). “[T]he State [i]s entitled to a reasonable period in which to prepare its case,” which “may not be counted against the State.” Shaw at 889-90. As to the reason for the delay, “different weights should be assigned to different reasons.” Barker, 407 U.S. at 531; accord Dragoo, 96 S.W.3d at 314. “[I]t is improper for the prosecution intentionally to delay ‘to gain some tactical advantage over [defendants] or to harass them.’” Barker at 531 n.32 (quoting Marion, 404 U.S. at 325) (alteration in Barker). “A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the” State. Barker at 531; accord Whitfield v. State, 137 S.W.3d 687, 690 (Tex. App.—Waco 2004, no pet.). “A more neutral reason such as negligence or overcrowded courts should be weighted less heavily . . . .” Barker at 531; accord Zamorano, 84 S.W.3d at 649. “Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” Barker at 531. As to the defendant’s assertion of the right, “the defendant’s assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 531-32; see Zamorano, 84 S.W.3d at 651. “[B]arring extraordinary circumstances,” courts “[sh]ould be reluctant indeed to rule that a defendant was denied th[e]” Sixth Amendment “constitutional right on a record that strongly indicated . . . that the defendant did not want a speedy trial.” Barker at 536. “[T]he failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. at 532; Zamorano at 651. “[A] defendant’s failure to make a timely demand for a speedy trial indicates strongly that he did not really want one and that he was not prejudiced by not having one.” Shaw, 117 S.W.3d at 890; accord Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992). “Furthermore, the longer the delay becomes, the more likely it is that a defendant who really wanted a speedy trial would take some action to obtain one.” Shaw at 890; accord Dragoo, 96 S.W.3d at 314. Moving for “a dismissal instead of a speedy trial weakens [a speedy trial] claim because it shows a desire to have no trial instead of a speedy trial.” Zamorano at 651 n.40 (quoting Parkerson v. State, 942 S.W.2d 789, 791 (Tex. App.—Fort Worth 1997, no pet.)) (alteration in Zamorano). As to the fourth factor, the prejudice to the defendant resulting from the delay, such prejudice “should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.” Barker, 407 U.S. at 532. The Supreme “Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id.; accord Shaw, 117 S.W.3d at 890. Of those interests, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker at 532; accord Shaw at 890. As to the length of the delay here, the length in question stretches from Jenkins’s arrest on January 7, 2005, until March 20, 2006, when Jenkins’s trial that ended in a verdict began, about fourteen and one half months later. That delay is sufficient to trigger the Brady analysis, but extends little beyond the minimum required to do so. A delay of thirteen months is “not extraordinary.” Harris, 827 S.W.2d at 957. The trial court could have found that the length of the delay was not extraordinary. If this factor weighs against the State, it does not do so heavily. As to the reasons for the delay, the State pointed, first, to the trial court’s docket. In September 2005, when Jenkins’s case was first set for trial, the court tried a defendant who had been in jail awaiting trial at least four months longer than Jenkins. On the trial court’s next criminal trial setting, in October 2005, the court tried a defendant for capital murder. See Tex. Penal Code Ann. § 19.03 (Vernon Supp. 2006). On the trial court’s next criminal trial setting, in November 2005, the trial court began trial of another capital-murder defendant, whose trial resulted in mistrial. In the trial court’s next criminal trial setting, in December 2005, the trial court retried the capital-murder defendant whose trial had resulted in mistrial. In the trial court’s next criminal trial setting, in January 2006, the trial court began Jenkins’s first trial, which ended in mistrial. In February 2006, the trial court began Jenkins’s second trial, which also ended in mistrial.[2] In March 2006, the trial court began Jenkins’s third trial, in which the jury returned a verdict of guilt. The State and Jenkins also pointed to the motion to withdraw of Jenkins’s first appointed attorney, in which Jenkins joined. Delay in appointing replacement counsel was caused by Jenkins’s representation to the trial court that Jenkins had retained counsel. The trial court could have found that the reason for the delay was largely the neutral reason of the court’s docket, and could have found that Jenkins’s conduct caused a significant part of the delay. If this factor weighs against the State, it does not do so heavily. As to Jenkins’s assertion of the speedy-trial right, he failed to assert it for ten and one half months after his arrest. Jenkins then urged a motion to dismiss, of the overruling of which he now complains, instead of a motion for speedy trial. The trial court could have found that Jenkins did not want a speedy trial, but wanted a dismissal instead. This factor weighs against Jenkins. As to prejudice, Jenkins pointed to the death of his mother while he was awaiting trial, and argued that only his mother could have testified to Jenkins’s criminal history and thus to Jenkins’s eligibility for community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 4(b)(3), (e) (Vernon ­­­­­­­­­­2006). The State pointed to other relatives who might have testified to Jenkins’s criminal history.[3] The trial court could have found that Jenkins did not show prejudice. This factor weighs against Jenkins. On balance, the factors weigh against finding a speedy trial violation. We overrule Jenkins’s third issue. CONCLUSION. Having overruled Jenkins’s issues, we affirm. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Justice Vance dissenting) Affirmed Opinion delivered and filed November 7, 2007 Do not publish [CRPM] [1] At the hearings on Jenkins’s motion to dismiss, the only evidence that the parties offered was Jenkins’s offer of a county clerk’s certification of death of Ernestine Jenkins. We thus rely largely on the argument of the parties at the hearings in our analysis. See Loredo v. State, 159 S.W.3d 920, 923-24 (Tex. Crim. App. 2004). [2] The record does not show the reasons for the several mistrials. [3] Jenkins’s aunt testified at trial as to Jenkins’s criminal history.