Ybarra, Jose Luis v. State

Affirmed and Memorandum Opinion filed September 11, 2003 Affirmed and Memorandum Opinion filed September 11, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-00438-CR ____________ JOSE LUIS YBARRA, Appellant V. THE STATE OF TEXAS, Appellee _______________________________________________ On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 34,313 _______________________________________________ M E M O R A N D U M   O P I N I O N Appellant Jose Luis Ybarra appeals his conviction for possession of marijuana weighing between five and fifty pounds. Appellant argues that: (1)–(2) the evidence is legally and factually insufficient to show he knew there was marijuana in the gas tank of the car he was towing; (3) the prosecutor made an improper comment during opening statement that deprived appellant of a fair and impartial trial; and (4) the State violated appellant’s right to a speedy trial. We affirm. I. Procedural and Factual Background class=Section3> Appellant was driving a truck, with a car in tow, on a public highway when a police officer stopped him. Appellant was arrested after he failed to provide a driver’s license and proof of insurance during the traffic stop. The police officer noticed that appellant and the three other men in the truck appeared nervous. Another officer noticed that the bolts on the gas tank of the car being towed looked as though they had been removed recently. Police then called for a dog trained to alert to narcotics. When the narcotics dog arrived on the scene, it indicated there were narcotics in the gas tank area of the car appellant had been towing. Police found 15.3 pounds of marijuana in the gas tank of the car. Appellant was charged with possession of marijuana, weighing between five and fifty pounds. The jury found appellant guilty and assessed punishment at ten years’ confinement in the Texas Department of Criminal Justice, Institutional Division. II. Issues Presented Appellant presents the following issues for appellate review: (1)–(2) Is the evidence legally and factually sufficient to prove appellant intentionally or knowingly possessed the marijuana found in the gas tank of the car appellant was towing? (3) Was appellant denied a fair and impartial trial by the prosecutor’s allegedly improper comment made during the State’s opening statement? (4) Was appellant’s right to a speedy trial violated? III. Analysis and Discussion A. Is the evidence legally sufficient to support appellant’s conviction? In his first issue, appellant argues the evidence is legally insufficient to prove he intentionally or knowingly possessed the marijuana found in the gas tank of the car he was towing. Appellant specifically complains that the evidence does not affirmatively link him to the marijuana and, therefore, no reasonable jury could have concluded beyond a reasonable doubt that appellant knew about the marijuana in the gas tank. In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We may not overturn the jury’s verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, “is the sole judge of the credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). The question is not whether a rational jury could have entertained a reasonable doubt of guilt, but whether it necessarily would have done so. Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003). Moreover, it is not necessary that all facts point directly or indirectly to the defendant’s guilt, if the combined and cumulative effect of all incriminating circumstances point to his guilt. Linton v. State, 15 S.W.3d 615, 619 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). To establish the offense of unlawful possession of a controlled substance, the State must prove the charged individual “intentionally or knowingly” possessed a controlled substance. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). Possession is intentional or knowing when an accused has (1) exercised actual care, custody, or control of the substance, and (2) known that the substance was contraband. Id. The control over the contraband need not be exclusive, but can be jointly exercised by more than one person. Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986). However, when an accused is not in exclusive control of the contraband, any conclusion that he exercised control over it must be supported by additional independent facts and circumstances affirmatively linking him to the contraband. Id. Circumstantial evidence is sufficient to prove possession as long as the evidence affirmatively links the accused to the contraband by showing his connection with it was more than fortuitous. Brown, 911 S.W.2d at 747. Affirmative links are established by a totality of the circumstances. Hyett v. State, 58 S.W.3d 826, 830 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). In assessing affirmative links, Texas courts have considered many factors, including: the amount of contraband found, whether the amount was large enough to indicate the accused knew of its existence, the proximity of the accused to the contraband, whether the accused had convenient access to the contraband, conflicting statements given about relevant matters by occupants of a vehicle, and conduct of the accused indicating a consciousness of guilt. See Valencia v. State, 51 S.W.3d 418, 423 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (finding that large bag of cocaine, easily accessible in hatchback of car, and suspicious behavior constituted some evidence of affirmative links); Corpus v. State, 30 S.W.3d 35, 38 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (finding that appellant’s furtive gestures supported an inference of guilt); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (finding that cocaine and razors discovered in plain view on seat of vehicle within appellant’s reach were affirmative links); Cooper v. State, 788 S.W.2d 612, 614 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d) (finding affirmative links when officer observed clear plastic bag in the seat passenger had just occupied). None of these factors is necessarily determinative and, when examining the affirmative links, it is not the number of factors present that is important, but the logical force they have in establishing the offense. Gilbert, 874 S.W.2d at 298. Because knowledge is subjective, it usually must be inferred in the absence of an admission of guilt by the accused. McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985). Though appellant argues the State failed to affirmatively link him to the marijuana in the gas tank, the record contains sufficient evidence of affirmative links. At the time of the traffic stop, appellant was traveling with two of his brothers, Augustine Ybarra and Oscar Ybarra, and a third man, Paul Reed. Appellant and the other three men in the truck appeared nervous when the police talked to them. See Fields v. State, 932 S.W.2d 97, 104 (Tex. App.—Tyler 1996, pet. ref’d) (finding affirmative links when appellant and driver appeared nervous and failed to make eye contact). Appellant did not have a driver’s license or proof of insurance. None of the other men in the truck presented a valid photo identification or proof of insurance. When asked his name, appellant lied to the police, telling them his name was “Gustav Popaco.” See Coonradt v. State, 846 S.W.2d 874, 876 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (giving false name to officer during traffic stop was an affirmative link to cocaine found in car). Appellant admitted his real name only after the police arrested him and his fingerprints revealed his true identity. Moreover, the location of the contraband — in the gas tank of the car — also tended to link appellant to the narcotics. In order to conceal the marijuana in this location, the gas tank of the car had to be removed and the record strongly suggests appellant was the only occupant of the vehicle that was an automobile mechanic.[1] Appellant’s brothers’ accounts of appellant’s role in towing the marijuana-laden car differed in important respects. Most notably, the brothers did not agree as to who knew about the marijuana in the gas tank or about who put the marijuana in the gas tank. Both brothers testified that the original plan was to transport the marijuana from Brownsville, Texas, to Pearland, Texas, in the car, but that those plans were derailed when the car broke down in Sarita, Texas. Both brothers testified appellant appeared nervous and lied to the police officer about his identity because he believed there were outstanding warrants for his arrest. Oscar Ybarra pleaded nolo contendere to possession of marijuana charges stemming from this incident. At appellant’s trial, Oscar testified that appellant was not in the car when it stopped running in Sarita; Oscar, Augustine, and Reed were its only occupants. According to Oscar’s testimony, when the car broke down in Sarita, Augustine called appellant, who was then in Pearland, to come to Sarita to repair the car. Oscar testified that appellant did not know about the marijuana in the gas tank because he was not present when the other three men placed it there a day or two before leaving Brownsville. Oscar also testified that the tail lights on the car were not working when it was being towed.[2] Augustine Ybarra pleaded guilty to possession of marijuana on charges arising from this incident. At appellant’s trial, Augustine testified that only Oscar and Reed were in the car when it broke down in Sarita. Augustine testified that he (Augustine) was in Brownsville at the time, but called appellant, who lived in Matamoros, Mexico, to fix the car because appellant was a mechanic. Augustine said that appellant used his mother’s truck and a rented tow bar to tow the broken-down car from Sarita to Pearland. According to Augustine, he (Augustine) made certain each time they stopped for fuel that the tail lights on the towed car were working for safety reasons and to avoid drawing the attention of the police. He testified that the car’s tail lights were working at the time of the traffic stop. According to Augustine, he bought the car for the purpose of transporting the narcotics and none of the others knew the marijuana was in the gas tank. Viewing the evidence in the light most favorable to the verdict, we find sufficient evidence from which a rational fact finder could have found, beyond a reasonable doubt, that appellant knowingly possessed the contraband found in the gas tank of the car he was towing. Accordingly, we overrule appellant’s first issue. B. Is the evidence factually sufficient to support appellant’s conviction? In his second issue, appellant challenges the factual sufficiency of the evidence. When evaluating such a challenge, we view all the evidence without the prism of “in the light most favorable to the prosecution” and set aside the verdict only if it is “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Johnson v. State, 23 S.W.3d 1, 6–7 (Tex. Crim. App. 2000). This concept embraces both “formulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence.” Id. at 11. Under this formulation, we essentially compare the evidence which tends to prove the existence of a fact with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 648. Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must consider and address the appellant’s main argument for a finding of insufficiency. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Id. We find the evidence factually insufficient only when necessary to prevent manifest injustice. Cain, 958 S.W.2d at 407. In support of his factual-sufficiency challenge, appellant again asserts a lack of affirmative links between appellant and the marijuana. Appellant argues that, taken alone, his presence at the scene is insufficient to support his conviction. Appellant maintains that his brothers’ testimony that appellant believed there were outstanding warrants for his arrest explains why appellant seemed nervous and lied to the police about his identity. Although mere presence in the vicinity of contraband is insufficient to prove that a person exercised control over the contraband or was a party to the offense, it is a circumstance tending to prove guilt, which, when combined with other facts, may suffice to show guilt. See McGoldrick, 682 S.W.2d at 578; Alvarez v. State, 813 S.W.2d 222, 224 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (recognizing link between narcotics hidden in tanker and defendant riding in separate car by defendant’s pattern of counter-surveillance). As set forth in the foregoing legal-sufficiency analysis, several factors affirmatively linked appellant to the marijuana found in the gas tank of the broken-down car. Appellant’s brothers provided conflicting testimony, and it was the jury’s duty to determine the credibility of their testimony and to decide the weight to be given the evidence. See Garza v. State, 633 S.W.2d 508, 514 (Tex. Crim. App. 1981) (opin. on reh’g); see also Carr v. State, 694 S.W.2d 123, 128 (Tex. App.—Houston [14th Dist.] 1985, pet. ref’d). Considering the evidence both for and against a finding of guilt, we cannot conclude the jury’s verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 6–7. Accordingly, we overrule appellant’s second issue. C. Did appellant preserve error regarding his third issue? In his third issue, appellant asserts that he was denied a fair and impartial trial because the State told the jury in its opening statement that the jury would hear evidence of appellant’s flight to Mexico after being released on bond. Appellant argues that, given the alleged lack of independent evidence affirmatively linking appellant to the marijuana, this statement denied appellant a fair and impartial trial. Appellant cites Miller v. State for the standard of review for this issue. See Miller v. State, 741 S.W.2d 382, 391 (Tex. Crim. App. 1987). This is not the correct standard of review. To preserve a complaint of improper jury argument for appellate review, a party must have presented to the trial court a timely and specific objection that stated the specific grounds for the desired ruling. See Tex. R. App. P. 33.1(a)(1); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). The Miller case relies on Romo v. State and related cases. See id.; Romo v. State, 631 S.W.2d 504 (Tex. Crim. App. 1982). In Cockrell v. State, the Court of Criminal Appeals overruled Montoya v. State and Romo v. State and any other cases allowing an exception to normal error-preservation rules for improper and incurable jury argument. See Cockrell, 933 S.W.2d at 89, overruling Montoya v. State, 744 S.W.2d 15 (Tex. Crim. App. 1987) and Romo v. State, 631 S.W.2d 504 (Tex. Crim. App. 1982). For appellant to complain on appeal about erroneous jury argument — including erroneous argument that was so prejudicial that an instruction to disregard could not have cured it — appellant must show that he objected at trial to this argument and that he pursued his objection to an adverse ruling. See Cockrell, 933 S.W.2d at 89; Garcia v. State, 887 S.W.2d 862, 877 (Tex. Crim. App. 1994) (holding that no error was preserved when appellant did not object to State’s alleged comment during closing argument on appellant’s failure to testify), abrogated in part on other grounds by Hammock v. State, 46 S.W.3d 889, 892–93 (Tex. Crim. App.2001); Campos v. State, 946 S.W.2d 414, 416–18 (Tex. App.—Houston [14th Dist.] 1997, no pet.). The only objection appellant voiced at trial was lack of notice the State would use this alleged extraneous offense under Rule 404(b) of the Texas Rules of Evidence. See Tex. R. Evid. 404(b). On appeal, appellant does not argue that the trial court abused its discretion by overruling his Rule 404(b) objection. Rather, appellant complains that he was denied a fair and impartial trial based on the State’s assertion that the jury would hear evidence that appellant fled to Mexico after being released on bond. We hold that appellant did not preserve error as to issue three because his complaint on appeal does not comport with his objection in the trial court. See Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003) (holding appellant did not preserve error where appellate complaint was different from trial objection); McFarland v. State, 928 S.W.2d 482, 510 (Tex. Crim. App. 1996) (indicating that preservation-of-error rules are the same for opening statement and closing argument), limited on other grounds by, Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). Accordingly, we overrule appellant’s third issue. D. Was appellant’s right to a speedy trial violated? In his fourth issue, appellant argues the State violated his right to a speedy trial under the United States and Texas Constitutions. See U.S. Const. Amends. VI, XIV; Tex. Const. Art. I, § 10; also Webb v. State, 36 S.W.3d 164, 172 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (en banc) (sixth-amendment right to speedy trial under the federal constitution applies to the states through the Fourteenth Amendment). We balance the same four factors to determine whether a defendant’s right to a speedy trial has been violated under the federal and state constitutions: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice to the defendant resulting from the delay. See Zamorano v. State, 84 S.W.3d 643, 648 n.12 (Tex. Crim. App. 2002); Webb, 36 S.W.3d at 172. None of these factors is a necessary or sufficient condition to finding a speedy- trial violation. Zamarano, 84 S.W.3d at 648; Webb, 36 S.W.3d at 172. Rather, the factors are related and should be evaluated in conjunction with any other relevant considerations. Zamarano, 84 S.W.3d at 648; Webb, 36 S.W.3d at 172. In assessing a trial court’s ruling on a speedy-trial claim, we apply a bifurcated standard of review. Zamarano, 84 S.W.3d at 648; Webb, 36 S.W.3d at 172. We utilize a de novo standard of review for the legal components and an abuse-of-discretion standard for the factual components. Zamarano, 84 S.W.3d at 648; Johnson v. State, 954 S.W.2d 770, 772 (Tex. Crim. App. 1997); Webb, 36 S.W.3d at 172. 1. Length of the Delay The delay is measured from the time the defendant is formally accused or arrested until the time of trial. United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 30 L. Ed.2d 468 (1971); Emery v. State, 881 S.W.2d 702, 708 (Tex. Crim. App. 1994). We must find this delay presumptively prejudicial before we inquire into the other three factors. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed.2d 101 (1972); Webb v. State, 36 S.W.3d at 162. There is, however, no per se length of delay that automatically constitutes a violation of the right to a speedy trial. Hull v. State, 699 S.W.2d 220, 221 (Tex. Crim. App. 1985) (en banc). Most delays of eight months or more are considered presumptively unreasonable and prejudicial. Marion, 404 U.S. at 313, 92 S. Ct. at 460. In this case, appellant was arrested on or about May 1, 1997, and released on bond that same month. The indictment in this case was not filed until March of 1998. Appellant failed to appear at his arraignment in May of 1998, and bond was forfeited. The record shows that appellant absconded during this time period. In support of his speedy-trial motion, appellant alleged he was arrested on federal narcotics charges in east Texas in February of 2001. According to appellant’s motion, appellant was sentenced in April of 2001, in connection with the federal narcotics charges, and completed his federal sentence in early October of 2001. The record indicates that the State secured a bench warrant, and appellant was transferred to Brazoria County at the conclusion of his federal sentence, to stand trial in the instant case. Trial in this case began on April 8, 2002. The State concedes a five-year delay in bringing appellant to trial is sufficient to trigger our consideration of the other three factors. Because we conclude the delay in the appellant’s trial is presumptively prejudicial, we address the remaining three factors. See Webb, 36 S.W.3d at 173. 2. Reason for the Delay The second factor we consider is the reason for the delay. See Webb, 36 S.W.3d at 173. The State has the burden of showing excuse for the delay, and in the face of a silent record, we presume that there was not a valid reason for it. See Emery, 881 S.W.2d at 708; Crowder v. State, 812 S.W.2d 63, 67 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d). We consider whether the delay was due to deliberate attempts to hamper the defense, justified circumstances (such as missing witnesses), or more neutral reasons (such as overcrowded court dockets). Webb, 36 S.W.3d at 173. A defendant who has or shares responsibility for the delay may lose his right to a speedy trial. See Dickey v. Florida, 398 U.S. 30, 48, 90 S. Ct. 1564, 1574, 26 L. Ed.2d 26 (1970); Munoz v. State, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999). Thus, we evaluate appellant’s actions and omissions as well as those of the State. Here, appellant’s absconding for nearly three years (from May of 1998 until April of 2001) accounts for most of the five-year delay in bringing this case to trial. This evasion weighs heavily against appellant. See Burgett v. State, 865 S.W.2d 594, 598 (Tex. App.—Fort Worth 1993, pet. ref’d) (denying speedy-trial claim when defendant evaded justice for nearly five years even though State took six months to bring case to trial after re-arresting defendant). The State concedes it cannot account for the ten-month delay between appellant’s arrest and the issuance of an indictment. The State has not justified its failure to bring appellant to trial while appellant was in federal custody (from February of 2001 to early October of 2001), which created an additional seven-month delay. Nor has the State explained why six more months elapsed after appellant was transferred from federal custody to Brazoria County (October of 2001 until early April of 2002). Because the State has the burden of justifying the delay, the 23 months of unexplained delay weighs heavily against the State in this case. See Burton v. State, 805 S.W.2d 564, 572 (Tex. App.—Dallas 1991, pet. ref’d) (weighing unexplained eight-month period of delay against State, but not finding it dispositive of speedy-trial claim when appellant absconded for four years). Though we find this period of substantial delay is attributable to the State, we must consider it in light of other circumstances, such as prejudice, to determine whether the delay requires dismissal of the case. See U.S. v. Taylor, 487 U.S. 326, 341, 108 S. Ct. 2413, 2422, 101 L. Ed.2d 297 (1988); Burgett, 865 S.W.2d at 597. 3. Appellant’s Assertion of His Right to a Speedy Trial The third factor we consider is whether the appellant asserted his right to a speedy trial. See Webb, 36 S.W.3d at 173. A criminal defendant must assert this right. Id. If he does, the court must give strong evidentiary weight to his assertion. Crowder, 812 S.W.2d at 67. However, the reviewing court also must view these assertions in light of appellant’s other conduct. U.S. v. Loud Hawk, 474 U.S. 302, 314, 106 S. Ct. 648, 655–56, 88 L. Ed.2d 640 (1986); Burgett, 865 S.W.2d at 598. In this case, appellant asked the trial court to appoint counsel in November of 2001, after he was returned to custody in Brazoria County. That same month, defense counsel was appointed and first asserted appellant’s right to a speedy trial by filing a motion to dismiss. Appellant argues we should gauge his assertion of the right from the time of the appointment of counsel. However, the cases appellant cites in support of this argument are inapposite because they do not involve a defendant who fled and thereby avoided prosecution. See Murray v. Wainwright, 450 F.2d 465, 469 (5th Cir. 1971); Coleman v. U.S., 442 F.2d 150, 155 (D.C. Cir. 1971); U.S. v. Butler, 426 F.2d 1275 (1st Cir. 1975). The invocation of the right to a speedy trial is weighed against a defendant who knew of an indictment and fled the jurisdiction to avoid prosecution. See Doggett v. U.S., 505 U.S. 647, 653, 112 S. Ct. 2686, 2691; Burgett, 865 S.W.2d at 598. Because the trial court is in the best position to judge the credibility of the evidence, we give considerable deference to its findings. See Doggett, 505 U.S. at 653, 112 S. Ct. at 2691; Burgett, 865 S.W.2d at 598. Here, the trial court denied appellant’s motion for a speedy trial because it found appellant forfeited bond and absconded. This finding is supported by the record, which shows appellant fled while an indictment was pending. 4. Prejudice to Appellant Finally, we consider whether prejudice resulted from the delay. See Webb, 36 S.W.3d at 174. Although the appellant need not show actual prejudice, he must make a prima facie showing of prejudice. Munoz, 991 S.W.2d at 826. The burden then shifts to the State to show that prejudice did not exceed that which occurs from the ordinary and inevitable delay. Id. In determining whether appellant suffered prejudice, we consider whether the three discernable interests which the speedy-trial right was designed to protect were affected: (1) prevention of oppressive pretrial incarceration; (2) minimization of the accused’s anxiety and concern; and (3) limitation of the possibility that the accused’s defense will be impaired. Id. Interference with the third subfactor, though not necessarily dispositive of a speedy-trial claim, is the most serious because the inability of the defendant to properly prepare his case jeopardizes the entire fairness of the trial. Id. In deciding whether the pretrial incarceration was oppressive, the determinative consideration is the effect the incarceration has upon the defendant. Id. at 828. Incarceration affects a defendant’s livelihood and family life and enforces idleness. Barker, 407 U.S. at 532, 92 S. Ct. 2182. In Munoz, the Texas Court of Criminal Appeals found a seventeen-month delay inherently oppressive because the defendant was incarcerated throughout the delay and the appellate court was bound to defer to the trial court’s implied finding that the defendant experienced anxiety exceeding that which ordinarily and inevitably would accompany pretrial incarceration. 991 S.W.2d at 828. Because appellant was a fugitive from justice for nearly three years, the period of pretrial incarceration was limited. Appellant was in federal custody for seven months (from February of 2001 until early October of 2001) and in state custody pending trial for about six months (from early October of 2001 until early April of 2002). Appellant argues he was unnecessarily subjected to additional confinement and anxiety because the State did not commence trial when appellant was taken into federal custody. Because appellant was tried on a federal narcotics charge and served a sentence for that offense, the entire thirteen months of pretrial incarceration cannot be attributed to the State in this case. See Webb, 36 S.W.3d at 174. Moreover, the record does not contain evidentiary support for appellant’s “anxiety” and “additional-confinement” arguments. See id. at 173. Accordingly, after evaluating these subfactors, we conclude appellant suffered minimal, if any, prejudice. See Munoz, 991 S.W.2d at 829. As to the “impairment of defense” subfactor, appellant argues the delay impaired his defense because the State lost a videotape of the traffic stop between the time of the indictment and the time of trial. Appellant maintains the videotape of appellant towing the car may have proven the tail lights were working at the time of the traffic stop and that the officer who pulled him over, therefore, did not have the reasonable suspicion necessary to justify a traffic stop. See State v. Cardenas, 36 S.W.3d 243, 246 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (explaining police officer may stop and detain one who commits traffic violation and discussing scope of detention). Appellant, however, did not make this argument in support of his motion for speedy trial in the court below and therefore has failed to preserve error as to this complaint. See Tex. R. App. P. 33.1(a)(1); Webb v. State, 36 S.W.3d at 174 n.2 (finding waiver of prejudice argument not made in the trial court). Thus, we do not consider this claim in weighing the impairment, if any, of his defense. 5. Balancing the Factors We must now balance the four factors to determine whether appellant was denied his right to a speedy trial. Webb, 36 S.W.3d at 175. On one hand, the State has failed to explain approximately two years of delay and has offered little evidence of its diligence in trying appellant’s case. See Barker, 407 U.S. at 533–37, 92 S. Ct. at 2193–95 (noting close case but denying speedy-trial claim when four years of five-year delay unexcused, defendant did not assert right to speedy trial, and prejudice was minimal). On the other hand, appellant was a fugitive from justice for nearly three years and suffered little or no prejudice as a result of the delays. Though this is a close case, after balancing these factors under the applicable standard, we find appellant was not denied his right to a speedy trial. Accordingly, we overrule appellant’s fourth issue. Having overruled all of appellant’s issues, we affirm the trial court’s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed September 11, 2003. Panel consists of Justices Yates, Hudson, and Frost. Do Not Publish — Tex. R. App. P. 47.2(b). [1] Though the record does not indicate whether the other occupants of the truck (Oscar, Augustine, and Reed) were mechanics, testimony from both of appellant’s brothers shows appellant was summoned to the site of the broken-down car because he was a mechanic and could repair it, a task the other three men apparently could not accomplish. [2] Whether the tail lights on the car appellant was towing were working was a significant fact because the police officer testified that he initiated the traffic stop because the car being towed did not have functioning tail lights.