Opinion
NO. 01-15-00520-CR
06-01-2017
CALVIN BALANDA REMO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas
Trial Court Case No. 1160719
MEMORANDUM OPINION
A jury found appellant, Calvin Balanda Remo, guilty of the felony offense of aggregated theft of property with a value of more than $20,000 but less than $100,000. After he pleaded true to the allegations in two enhancement paragraphs that he had twice been previously convicted of felony offenses, the trial court assessed his punishment at confinement for twenty-eight years. In seven issues, appellant contends that the trial court erred in denying his motion to dismiss, based on a speedy-trial violation; admitting certain extraneous-offense evidence; and instructing the jury about that extraneous-offense evidence.
See TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2016), § 31.09 (Vernon 2016); see also Act of May 29, 2011, 82d Leg., R.S., ch. 1234, § 21, 2011 Tex. Gen. Laws 3302, 3310 (amended 2015) (current version at TEX. PENAL CODE ANN. § 31.03(e)(5)) (third-degree felony offense).
We affirm.
Background
Wilford Melton ("Melton"), the first complainant, testified that his parents, prior to their deaths, owned a house at 4702 Providence Street in Harris County, Texas (the "property"). His father, Wilford Robin Melton, Sr., died in 1972, and his mother, Earnestine Bragg Melton, died on November 20, 1999. At the time of her death, Earnestine was living at the property with her brother, Melton's uncle. After her death, Melton became the sole owner of the property, which had a value of $55,473.
Melton explained that following the death of Earnestine, his uncle continued to live at the property until approximately 2005. Although the property, from 2005 onward, remained vacant, several neighbors and a "lawn man" helped with its upkeep. One neighbor, Cynthia Robinett, kept in contact with Melton, and in either November or December of 2007, she notified him that someone had placed a "for sale" sign in the front yard of the property.
Melton further testified that he had never sold the property. And more specifically, he had not sold the property to appellant or a man named Herther Solomon. When questioned about the authenticity of State's Exhibit 3, a General Warranty Deed purporting to convey the property from "Ernestine Melton" to "Wilford Melton" on June 26, 2003, Melton explained that Earnestine did not sign the deed, the deed was purportedly signed by her after her death, and it is a forged document. When questioned about the authenticity of State's Exhibit 5, a Correction Warranty Deed purporting to convey the property from "Ernestine Melton" to "Wilford Melton, a "municipal corporation situated in Harris, Fort Bend and Montgomery Counties," on June 27, 2003, Melton explained that Earnestine did not sign the correction deed, the correction deed was purportedly signed by her after her death, he is not a "municipal corporation," and it is a forged document. And when questioned about the authenticity of State's Exhibit 4, a General Warranty Deed purporting to convey the property from "Wilford Melton" to "H. Solomon" on December 11, 2006, Melton explained that he did not sign the deed and it is a forged document.
Clemente Puente ("Puente"), the second complainant, testified that in 2007, he and his wife wanted to purchase a home, and his son, Ivan Puente, "had a friend at work . . . [who] knew some people that were out there selling homes." Puente then met with appellant and Solomon, and they toured the property. After he decided to purchase the property, Puente gave two checks, each in the amount of $7,000, and $1,000 in cash to Solomon, who then gave the money to appellant. Puente wrote both checks out to appellant. Puente explained that he purchased the property from both appellant and Solomon on December 3, 2007, Solomon did not have the "most active rol[e] in the sale," and appellant "always had the last word." Puente did not make the final payment, due to appellant and Solomon in June 2008, on the property.
Robinett, who lives across the street from the property, testified that Melton took possession of the property after Earnestine's death and asked Robinett "to look out for the property." In 2006 or 2007, a man who "resemble[d]" appellant, and another man, Solomon, approached Robinett, stating that they were interested in purchasing the property. They explained that "they bought and sold property," and Robinett informed them that Melton owned the property, his mother had died, and he lived in California. After their conversation, Robinett saw the two men looking at the property "every week, twice a week, sometimes three times a week," and they posted "for sale" signs in the front yard of the property. The last time that Robinett saw Solomon and the other man, who "resemble[d]" appellant, "they said they [had] sold the house." When Robinett later saw a family "moving into the property," she "tried to inform them that the property that they were buying did not belong to the two gentlemen that sold them the property," but "the family . . . did not speak English." According to Robinett, Melton "never tried to sell" the property.
Christopher Gray testified that he and appellant had been friends in high school. When Gray saw him years later, appellant told Gray that he was "getting into real estate" and if Gray "knew somebody that wanted to buy some property, [to] let him know." A few months later, Gray began working with Puente's son, Ivan, who told Gray that Puente was "looking for a place to live or want[ed] to buy some property." Gray, believing that appellant was in the business of "[s]elling real estate," gave Ivan appellant's telephone number.
Ivan testified that in November 2007, Gray told him that appellant "sold houses." Ivan, who was looking for a home for his parents, then "went to look at several properties" with appellant. Appellant showed Ivan two houses, the second of which is the property at issue. Ivan twice toured the property with appellant and Solomon before reaching an agreement with appellant to buy it. Ivan explained that he negotiated the price of the property with appellant and appellant "did most of the talking" during the tours of the property. Ivan believed that appellant and Solomon were the owners of the property, and appellant told Ivan that he and Solomon were partners. Ivan explained that appellant was "the boss" and Solomon did not have "the most active role in the sale of the [property]."
Ivan further testified that his parents, for the property, gave appellant two cashier's checks, each in the amount of $7,000, and $1,000 in cash. They were then "going to make other payments, because [they] had agreed [with appellant] that the total [for the property] was going to be $34,000." Ivan noted that his parents were going to make an additional $8,000 payment to appellant and Solomon in June 2008. And he explained that his parents paid $10,000 in delinquent taxes on the property and spent more money making improvements to the property.
Marco Ramirez testified that in January 2008, he saw a "for sale" sign in the front yard of a house at 4506 Woolworth Street in Harris County, Texas (the "Woolworth property"). He called the telephone number listed on the sign, subsequently met with appellant at the Woolworth property, and, after touring it, negotiated with appellant to pay $6,000 in cash for it. Ramirez also agreed to pay $10,000 in delinquent taxes on the Woolworth property. Appellant told Ramirez that he was the owner of the Woolworth property, and Ramirez gave $6,000 in cash directly to appellant. Ramirez also noted that he identified appellant in a photographic array as the person who sold him the Woolworth property.
During Ramirez's testimony, the trial court admitted into evidence several documents that establish that Armce Richardson owned the Woolworth property until his death on June 5, 1994, when his children inherited it. However, State's Exhibit 16, a General Warranty Deed, purports to have conveyed the Woolworth property from "A. Richardson" to "H. Solomon" on May 28, 2005, eleven years after Richardson's death. Also, State's Exhibit 17, a General Warranty Deed, purports to have conveyed the Woolworth property from "H. Solomon" to Ramirez on January 11, 2008. And Ramirez testified that appellant told him that State's Exhibit 17 was "good."
Right to Speedy Trial
In his first issue, appellant argues that the trial court erred in denying his motion to dismiss, based on a violation of his right to a speedy trial, because he was arrested "[t]hree years and nine months" after "the State [first] issued a warrant for [his] arrest." See U.S. CONST. amend. VI.
We review a trial court's ruling on a claim of a denial of the right to a speedy trial under a bifurcated standard of review. See State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999). We review factual issues for abuse of discretion and legal issues de novo. Id. Because the trial court denied appellant's motion to dismiss, we must presume that the trial court resolved any disputed fact issues in the State's favor, and we are required to defer to the implied findings of fact that the record supports. See id. We review the trial court's decision on a speedy-trial claim in light of the arguments, information, and evidence before the trial court at the time it ruled. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). When assessing the evidence presented at a hearing on a motion to dismiss for lack of a speedy trial, the trial court may completely disregard a witness's testimony based on credibility and demeanor evaluations, even if the testimony is uncontradicted, and it may disbelieve any evidence as long as there is a reasonable and articulable reason for doing so. McGregor v. State, 394 S.W.3d 90, 113 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd).
The Sixth Amendment to the United States Constitution guarantees a criminal defendant a speedy trial, and the sole remedy when he is deprived of that right is dismissal. See U.S. CONST. amend. VI; Barker v. Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182, 2188 (1972); Dragoo, 96 S.W.3d at 313. To determine whether a defendant was deprived of his right to a speedy trial, we weigh and balance the four factors that the United States Supreme Court set forth in Barker, namely: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his speedy-trial right; and (4) the prejudice to the defendant resulting from the delay. 407 U.S. at 530-32, 92 S. Ct. at 2192-93; see also Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). The State generally has the burden of justifying the length of the delay, while the defendant has the burden of proving assertion of the right and showing prejudice. Cantu, 253 S.W.3d at 280. The greater the State's bad faith or negligence and the longer its actions delay a trial, the less a defendant must show actual prejudice or prove diligence in asserting his right to a speedy trial. Id. at 280-81.
In regard to the first Barker factor, the length of the delay acts as a "triggering mechanism" for an analysis under Barker. 407 U.S. at 530, 92 S. Ct. at 2192; see also Dragoo, 96 S.W.3d at 313-14. The length of the delay is measured from the time the defendant is arrested or formally accused. Dragoo, 96 S.W.3d at 313; Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). The length of delay between a defendant's indictment and subsequent arrest may also be considered. See Doggett v. U.S., 505 U.S. 647, 652, 112 S. Ct. 2686, 2691 (1992); Gonzales v. State, 435 S.W.3d 801, 809 (Tex. Crim. App. 2014); see also State v. Booker, Nos. 04-11-00638-CR, 04-11-00639-CR, 2012 WL 848234, at *1 (Tex. App.—San Antonio Mar. 14, 2012, no pet.) (mem. op., not designated for publication). Notably, the length of the delay that will provoke a speedy-trial inquiry is "necessarily dependent upon the peculiar circumstances of the case." Barker, 407 U.S. at 530-31, 92 S. Ct. at 2192. So long as the delay is more than "ordinary," it is subject to the speedy-trial analysis, and the longer the delay, the greater the presumption of prejudice to the defendant. Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002) (internal quotations omitted).
Texas courts have generally deemed a delay that approaches one year to be presumptively prejudicial and "unreasonable enough to trigger the Barker enquiry." Dragoo, 96 S.W.3d at 314 (internal quotations omitted). Here, appellant argues that the delay in this case is presumptively prejudicial because "[t]hree years and nine months elapsed [between] the time the State issued a warrant for [his] arrest" and his actual arrest on January 25, 2012. We note, however, that the period of time before a defendant's arrest or formal charge may not be considered in determining whether his right to a speedy trial has been violated. See State v. Thomas, 453 S.W.3d 1, 4-5 (Tex. App.—Dallas 2014, no pet.); Santallan v. State, 922 S.W.2d 306, 307 (Tex. App.—Fort Worth 1996, pet. ref'd) ("The calculation of delay begins only when a formal indictment, information, or actual arrest occurs. In cases where there is no prearrest indictment, the calculation of delay does not include the period before the arrest." (internal footnoted omitted) (internal citations omitted)); Davis v. State, 630 S.W.2d 532, 537 (Tex. App.—Amarillo 1982, no pet.) ("[T]he computation of time for the purpose of the Constitutional speedy[-]trial provision begins either (1) at the time of the arrest of the putative defendant or (2) when the putative defendant is formally charged by indictment or information."); see also Gonzales, 435 S.W.3d at 808 ("[A] person who has not been formally charged cannot seek protection from the Speedy Trial Clause, and the State is not required to discover, investigate, and accuse a person within any particular period of time." (internal quotations omitted)).
In other words, the relevant inquiry in the instant case is not how much time passed between the State's issuance of a warrant for appellant's arrest and appellant's actual arrest. See Thomas, 453 S.W.3d at 4-5 (time between issuance of arrest warrant and actual arrest not counted and "issuance of the arrest warrant in August 2012 [did not] constitute a 'formal accusation' triggering the Barker analysis"); Davis, 630 S.W.2d 536-38 (less formal accusation or charge, such as issuance of arrest warrant, will not suffice to trigger speedy-trial protections). Instead, here, we look at the length of time between appellant's indictment and his subsequent arrest. See Doggett, 505 U.S. at 652, 112 S. Ct. at 2691; Gonzales, 435 S.W.3d at 809.
It is undisputed that appellant was indicted on June 6, 2008 and later arrested on January 25, 2012, three years and seven months after his indictment. This delay of three years and seven months is sufficient to trigger a Barker inquiry. See Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003) (delay of thirty-eight months "stretched far beyond the minimum needed to trigger the inquiry"); Dragoo, 96 S.W.3d at 314 (delay of three-and-half years sufficient to trigger Barker inquiry). In other words, the delay in this case "stretched well beyond the bare minimum needed to trigger judicial examination of the [speedy-trial] claim," and we conclude that the first Barker factor weighs in favor of determining a violation of appellant's speedy-trial right. Zamorano, 84 S.W.3d at 649; see also Shaw, 117 S.W.3d at 889; Dragoo, 96 S.W.3d at 314.
In its brief, the States admits that "[s]tanding alone, the delay of 3 ½ years appears to weigh in favor of finding a speedy[-]trial violation."
In regard to the second Barker factor, we examine "the reason the [State] assigns to justify the delay" on which it bears the burden. Zamorano, 84 S.W.3d at 649 (internal quotations omitted). Different weights are assigned to different reasons for a delay. Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Zamorano, 84 S.W.3d at 649. For instance, a "deliberate attempt to delay the trial" is weighed heavily against the State, while a "more neutral reason such as negligence" is weighed against the State, but less heavily. Munoz, 991 S.W.2d at 822 (internal quotations omitted); see also Zamorano, 84 S.W.3d at 649. And a valid justification for delay should not be weighed against the State at all. Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Ortega v. State, 472 S.W.3d 779, 786 (Tex. App.—Houston [14th Dist.] 2015, no pet.); see also Gonzales, 435 S.W.3d at 810 ("Unjustifiable reasons for delay count towards the 'length of delay,' while justifiable reasons for delay do not.").
We further note that a "delay which is attributable in whole or in part to the defendant may . . . constitute a waiver of a speedy[-]trial claim." Munoz, 991 S.W.2d at 822; see also Webb v. State, 36 S.W.3d 164, 173 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). And a defendant's decision to remain a fugitive without asserting his right to a speedy trial weighs heavily against him. Lott v. State, 951 S.W.2d 489, 494-95 (Tex. App.—El Paso 1997, pet. ref'd). The inquiry under the second Barker factor is not whether one party is solely to blame, but rather "whether the [State] or the criminal defendant is more to blame for that delay." Doggett, 505 U.S. at 651, 112 S. Ct. at 2690.
Appellant asserts that the reason for the delay between his indictment and his subsequent arrest is the State's negligence and its "indifference to [its] constitutional duty" to "apprehend or to notify an accused promptly, of a criminal complaint filed against him." In support of his assertion, appellant notes that between the time when he was indicted and when he was ultimately arrested, he "did not change his residence in Houston, Texas"; he "did not change his telephone number"; he "did not change his mailing address"; he was a "frequent patient at the Harris County Hospital District[,] where he was treated for years for cancer, and where he had prescriptions filled in his own name at the pharmacy"; and he "did not hide his presence in Houston, Texas." The State asserts that it tried to arrest appellant on several occasions at two separate addresses and appellant contributed to the delay in his arrest.
Several witnesses at the hearing on appellant's motion to dismiss testified that he lived at 6103 Verde Valley Drive in Houston, Texas with his wife and children for approximately fourteen years. However, his driver's license, a copy of which the trial court admitted into evidence at the hearing, lists appellant's home address as 3736 Folger in Houston, Texas—the address of his parents.
At the hearing on appellant's motion to dismiss, Antionette Davis, his daughter, testified that in June 2008, law enforcement officers came to the family's home on Verde Valley Drive and stated that "[t]hey ha[d] a warrant." She, her mother, and her brother were at home at the time, but appellant was not because her parents had separated. The officers told Davis and her mother that "the warrant authorized them to come look for" appellant. The officers remained at the house for "more than an hour" and "went through everything"; they "basically raided" the house. Davis noted that she had no idea where appellant was living during her parents' separation, which had begun two weeks prior to the arrival of the officers. According to Davis, although appellant resumed living at the Verde Valley Drive address in December 2008, no one in the family notified him about the officers' visit.
Gretchen Remo, appellant's wife, testified that in either June or July 2008, law enforcement officers came to the family's home looking for appellant. They told her that they had a warrant and asked her to step outside of the home. Gretchen explained that the officers then "ransacked" the house for "about an hour, hour-and-a-half" even though appellant was not home at the time. According to Gretchen, she and appellant, at the time, were not speaking to each other and he was not staying at the house. They had separated a "couple of weeks prior to [the officers] coming out and investigating [the] house," and she felt no obligation to "try to track [appellant] down." "[S]ometime around the Christmas holidays," appellant returned to live at the Verde Valley Drive home.
Alice Pelican testified that on May 30, 2008, when she was previously employed as a legal process server, she attempted to serve appellant with legal documents related to a civil lawsuit at the house at Verde Valley Drive. At that time, no one answered the door. Pelican returned to the Verde Valley Drive address the next day, and Gretchen answered the door. When Pelican asked for appellant, Gretchen told her that the house was "the Gretchen Davis residence" and she "had no knowledge of [appellant]," and she then shut the door.
On June 6, 2008, Pelican twice went to the Folger address, listed on appellant's driver's license, attempting to serve him, and no one responded when she knocked on the door. On June 7, 2008, Pelican returned to the Folger address, where she spoke with appellant's father. He informed her that appellant lived at the Verde Valley Drive address with Gretchen. Pelican then obtained permission to execute substituted service, and she served Gretchen with the legal documents at the Verde Valley Drive address on September 7, 2008. Pelican noted that each time she attempted service on appellant and was unsuccessful, she left "a notice."
Finally, Harris County Sheriff's Office ("HCSO") Sergeant D. Brown, a member of the Criminal Warrants Division ("CWD"), testified that he, as part of his job responsibilities, keeps and maintains all "service attempts on warrants," i.e., a recording or "brief description of any activity that occurs on [a] case." In regard to the efforts made by the State to find appellant, Brown explained that after the warrant for appellant's arrest was issued on April 7, 2008, a Houston Police Department ("HPD") officer attempted to execute the warrant, but he was unable to do so because "the warrant address was a bad address," i.e., it was the address for appellant's father, rather than for appellant. On April 10, 2008, appellant's warrant information was entered into the databases of the Texas Crime Information Center and the National Criminal Information Center ("TCIC/NCIC"), both of which keep "track of the wanted persons in Texas and across the nation" and provides law enforcement officers "a better opportunity to get [a] defendant into custody." According to Brown, the entry of appellant's warrant information into the TCIC/NCIC databases would have allowed law enforcement officers who happened to stop appellant "anywhere" to "know that he had an open warrant." On May 9, 2008, the CWD then "rechecked" appellant's warrant information in the TCIC/NCIC databases to verify that it had been entered correctly.
Subsequently, on June 12, 2008, a Deputy Lancaster "advised [the CWD that] he was going to attempt service on the warrant." On May 28, 2009, HPD Officer Chappa confirmed the validity of the warrant for appellant's arrest and indicated that service of the warrant on appellant would again be attempted. On July 16, 2009, the CWD, in the hope of making an arrest, "purged" appellant's warrant in an attempt to gather new information on him, including "identifying information, new addresses, new telephone numbers, [and] correct driver's license [information]." Finally, on January 25, 2012, the CWD received a "hit confirmation" from the Texas Department of Public Safety ("DPS"), indicating that DPS had taken appellant into custody and was seeking to verify that his warrant was "still good."
Here, the record does not contain any evidence that the State deliberately tried to delay the arrest of appellant. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192. Instead, beginning in April 2008, prior to appellant's indictment, law enforcement officers made several attempts to serve appellant with an arrest warrant at two different addresses. Cf. State v. Wei, 447 S.W.3d 549, 555 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd) (State conceded no evidence law enforcement officers attempted to serve arrest warrant); Pierce v. State, 921 S.W.2d 291, 294-95 (Tex. App.—Corpus Christi 1996, no pet.) (State could not excuse delay where "there was no recorded attempt to serve the warrant" on defendant whose address was known). Appellant's family members testified that law enforcement officers attempted to locate appellant at the Verde Valley Drive home. And there is evidence that during the time that the State searched for appellant, he attempted to avoid service related to civil litigation in which he was involved. See Burgett v. State, 865 S.W.2d 594, 597 (Tex. App.—Fort Worth 1993, pet. ref'd) ("Delay caused by acts of the accused which are beyond the control of the prosecution should not weigh against the State."). Moreover, the State, in an effort to arrest appellant, entered his warrant information into the TCIC/NCIC databases, both of which would have allowed any law enforcement officer, who happened to stop appellant "anywhere," to know that he had an open warrant for his arrest. See Lott, 951 S.W.2d at 495 ("Although simply maintaining a suspect's name on the computer crime records may not, in itself, show diligent investigation, in a case such as this where a diligent active investigation continued for a reasonable time after the offense, the data bank listings takes on added significance."); Burgett, 865 S.W.2d at 597 (State entered defendant's name as fugitive into Texas and national crime information systems). And in 2009, after being unable to locate appellant for a year, the State sought to obtain new "identifying information, new addresses, new telephone numbers, [and] correct driver's license [information]" for appellant.
Thus, the record indicates that the reason for the State's delay in arresting appellant was its difficulty in locating him, rather than procrastination or negligence on its part. This constitutes a sufficient justification for the delay. See Burgett, 865 S.W.2d at 597 (difficulty in locating defendant sufficient justification for delay); Wooten v. State, 735 S.W.2d 574, 576 (Tex. App.—Texarkana 1987, no pet.). We conclude that the second Barker factor does not weigh against the State.
In regard to the third Barker factor, a defendant is solely responsible for asserting or demanding his right to a speedy trial. See Barker, 407 U.S. at 528-29, 92 S. Ct. at 2191; Ortega, 472 S.W.3d at 786. The failure to assert the right diligently makes it difficult for a defendant to show that he was denied a speedy trial. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. Notably, "[f]iling for a dismissal instead of a speedy trial will generally weaken a speedy-trial claim because it shows a desire to have no trial instead of a speedy one. If a defendant fails to first seek a speedy trial before seeking dismissal of the charges, he should provide cogent reasons for this failure." Cantu, 253 S.W.3d at 283 (internal footnotes omitted). The failure to request a speedy trial before seeking dismissal "supports an inference that the defendant does not really want a trial, he wants only a dismissal." Id.
Appellant argues that he "did not delay in asserting his right[]" to a speedy trial because he first learned of the criminal case against him when he was arrested on January 25, 2012 and he filed his motion to dismiss "within three weeks of his arrest."
Even assuming that appellant did not learn of the criminal case against him until January 25, 2012, precluding him from diligently seeking a speedy trial before that date, he still did not request a speedy trial before filing his motion to dismiss. This weakens his claim that he was denied his right to a speedy trial. See Cantu, 253 S.W.3d at 283; Ortega, 472 S.W.3d at 786-87. We therefore conclude that the third Barker factor carries only minimal weight in establishing a violation of appellant's speedy-trial right. Ortega, 472 S.W.3d at 787; see also Phillips v. State, 650 S.W.2d 396, 401 (Tex. Crim. App. 1983) (defendant's seeking of dismissal rather than prompt trial clearly relevant and may attenuate strength of claim).
Lastly, in regard to the fourth Barker factor, we consider the prejudice to appellant from the delay. The prejudice must be assessed in light of the interests that the speedy-trial right was designed to protect, namely: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the defendant; and (3) limiting the possibility the defense will be impaired. Cantu, 253 S.W.3d at 285; Munoz, 991 S.W.2d at 826. Of these three interests, the possibility that the defense will be impaired by dimming memories and the loss of exculpatory evidence is the most serious "because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker, 407 U.S. at 532, 92 S. Ct. at 2193; see also Munoz, 991 S.W.2d at 826.
The defendant has the burden to make some showing of prejudice, although a showing of "actual prejudice" is not required. Munoz, 991 S.W.2d at 826 (internal quotations omitted). If the defendant makes a prima facie showing of prejudice, the burden then shifts to the State to prove that the defendant suffered "no serious prejudice beyond that which ensued from the ordinary and inevitable delay." Id. (internal quotations omitted). Furthermore, if the State fails to persuasively rebut the presumption of prejudice, the defendant is entitled to relief. Doggett, 505 U.S. at 658, 112 S. Ct. at 2694.
Appellant does not address in his brief any of the aforementioned interests that the speedy-trial right was designed to protect. See TEX. R. APP. P. 38.1(i). Instead, appellant asserts that "[i]n light of the extraordinary length of delay" in this case, he was entitled to a presumption of prejudice and is not required to demonstrate prejudice. See Gonzales, 435 S.W.3d at 812-15. However, the delay in this case was not so lengthy as to excuse appellant from the requirement of demonstrating prejudice. See, e.g., United States v. Bishop, 629 F.3d 462, 466 (5th Cir. 2010) ("[D]elays of less than five years are insufficient, by duration alone, to give rise to a presumption of prejudice and relieve the defendant of satisfying Barker's fourth prong."); United States v. Serna-Villarreal, 352 F.3d 225, 232-33 (5th Cir. 2003) (delay of three years and nine months insufficient); Pineda v. State, Nos. 05-14-00632-CR, 05-14-00633-CR, 2015 WL 4462357, at *4, *7 (Tex. App.—Dallas July 21, 2015, no pet.) (mem. op., not designated for publication) (generally delays of less than five years insufficient to give rise to presumption of prejudice); cf. Doggett, 505 U.S. at 652, 112 S. Ct. at 2691 (delay of eight and half years); Gonzales, 435 S.W.3d at 812-15 (delay of six years absolved defendant from requirement to demonstrate prejudice).
In regard to the first two interests that the speedy-trial right was designed to protect, we note that appellant did not address them in his motion to dismiss, presented no evidence about them at the hearing on his motion, made no argument to the trial court regarding the interests, and they are simply not at issue here because appellant was unaware of the pending charge against him until his arrest on January 25, 2012. See Ortega, 472 S.W.3d at 787; Harrison v. State, 282 S.W.3d 718, 722 (Tex. App.—Amarillo 2009, no pet.); Starks v. State, 266 S.W.3d 605, 612-13 (Tex. App.—El Paso 2008, no pet.); State v. Smith, 76 S.W.3d 541, 551 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). As to the third interest, appellant's attorney, in his closing argument at the hearing on appellant's motion to dismiss, generally argued that appellant would be prejudiced in "put[ting] on a case and put[ting] together a defense because of memories fading and evidence disappearing and vanishing." However, appellant offered no evidence that his defense would be impaired, and the record does not show that his ability to defend himself was prejudiced by the delay in this case. See Harris v. State, 489 S.W.2d 303, 308-09 (Tex. Crim. App. 1973); Ortega, 472 S.W.3d at 787-88; see also Gonzales v. State, 474 S.W.3d 345, 350 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) ("[A]rguments of counsel are not evidence."); McGregor v. State, 394 S.W.3d 90, 116 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) (defendant did not identify specific problems due to faded memories or specific witnesses unavailable to testify, and no indication he was prejudiced by faded memories of any witness). We conclude that the fourth Barker factor weighs against a finding of a speedy-trial violation.
Finally, we must balance the Barker factors with "common sense and sensitivity to ensure that charges are dismissed only when the evidence shows that a defendant's actual and asserted interest in a speedy trial has been infringed." Cantu, 253 S.W.3d at 281. Although the length of the delay and appellant's assertion of his speedy-trial right slightly weigh in favor of determining a violation of his right to a speedy trial, the other two Barker factors weigh in favor of concluding that there was no violation. And there is no evidence that the State intentionally delayed the arrest of appellant or that he was prejudiced by any such delay.
Accordingly, we hold that the trial court did not err in denying appellant's motion to dismiss for violation of his right to a speedy trial.
We overrule appellant's first issue.
Extraneous-Offense Evidence
In his second, third, and fourth issues, appellant argues that the trial court erred in admitting certain extraneous-offense evidence, namely, the testimony of Ramirez, because it was not admissible. See TEX. PENAL CODE ANN. § 31.03(c)(1) (Vernon Supp. 2016); TEX. R. EVID. 404(b).
We review a trial court's decision to admit evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009). A trial court abuses its discretion if it acts arbitrarily or unreasonably, without reference to any guiding rules or principles, and only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). We will not reverse a trial court's ruling on evidentiary matters unless the decision falls outside the zone of reasonable disagreement. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). If the trial court's ruling can be justified on any theory of law applicable to the ruling, the ruling will not be disturbed. De La Paz, 279 S.W.3d at 344.
Here, the trial court admitted evidence of the extraneous offense related to Ramirez under both Texas Penal Code section 31.03(c)(1) and Rule of Evidence 404(b). Section 31.03(c)(1) provides that in a theft case:
[E]vidence that the [defendant] has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the [defendant]'s plea of not guilty[.]TEX. PENAL CODE ANN. § 31.03(c)(1) (emphasis added).
As we have noted in a prior opinion, "section 31.03(c)(1) appears to be limited to recent transactions [occurring] prior to the charged offense." Hegar v. State, 11 S.W.3d 290, 297 (Tex. App.—Houston [1st Dist.] 1999, no pet.). In other words, "[t]he plain language of the statute makes clear that evidence of [extraneous] transactions occurring before the charged offense are admissible" under section 31.03(c)(1). Massingill v. State, No. 11-14-00289-CR, 2016 WL 5853180, at *2 (Tex. App.—Eastland Sept. 30, 2016, no pet.) (mem. op., not designated for publication) (statute does not authorize admission of evidence of transactions occurring after charged offense); see also Hegar, 11 S.W.3d at 297.
Appellant first argues that the trial court, under section 31.03(c)(1), erred in admitting evidence of the extraneous offense related to Ramirez because it "occurred after the instant offense was completed" and "[t]he statute explicitly limits the admissibility of . . . extraneous[-]offense evidence to transactions that occur prior to the charged offense." According to appellant, the charged offense occurred "on or about November 19, 2007 and continued through December 6, 2007" and the extraneous offense related to Ramirez occurred in January 2008.
In response, the State asserts that the second complainant, Puente, purchased the property "in late 2007 and then agreed to make further payments until June 2008," making the charged offense "a continuing fraud." It argues that because the extraneous offense related to Ramirez occurred in January 2008, "during th[e] same time frame" as the charged offense, the extraneous-offense evidence related to Ramirez is admissible under section 31.03(c)(1). See Lopez v. State, 316 S.W.3d 669, 678 (Tex. App.—Eastland 2010, no pet.) (admitting, under section 31.03(c)(1), similar extraneous offenses "occur[ing] during the period of time that [defendant] was also working on the [complainants'] home"). In the instant case, however, we need not decide whether the extraneous-offense evidence related to Ramirez qualifies as evidence admissible under section 31.03(c)(1) because even if it does not, such evidence is admissible under rule 404(b).
Evidence of other crimes, wrongs, or bad acts is not admissible to prove the character of a person in order to show action in conformity therewith. TEX. R. EVID. 404(b). However, such evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. See id.; Montgomery, 810 S.W.2d at 387.
Appellant argues that the trial court could not properly admit the extraneous-offense evidence under rule 404(b) because section 31.03(c)(1) solely "controls the admissibility of extraneous[-]offense evidence . . . in theft cases." In support of his argument, appellant relies on Texas Rule of Evidence 101(d), asserting that it "provides that the Texas Penal Code controls when there is an inconsistency between a rule[] of evidence and the Codes." (Emphasis omitted.)
Rule 101(d) provides:
Despite these rules, a court must admit or exclude evidence if required to do so by the United States or Texas Constitution, a federal or Texas statute, or a rule prescribed by the United States or Texas Supreme Court or the Texas Court of Criminal Appeals. If possible, a court should resolve by reasonable construction any inconsistency between these rules and applicable constitutional or statutory provisions or other rules.TEX. R. EVID. 101(d). We note that appellant in his brief refers to Texas Rule of Evidence 101(c); however, prior to trial in this case, the Rules of Evidence were restyled, and the language upon which appellant relies is now found is section (d). See Order, Final Approval of Amendments to Texas Rules of Evidence, Misc. Docket No. 15-001 (Tex. Crim. App. Mar. 12, 2015).
However, section 31.03(c)(1) does not solely control the admissibility of extraneous-offense evidence in cases involving theft and there is no inconsistency between section 31.03(c)(1) and rule 404(b). In fact, we have already addressed this issue. In Hegar, the defendant was convicted of the misdemeanor offense of theft by check after he paid for goods using a checking account that had insufficient funds. 11 S.W.3d at 292. On appeal, he challenged the trial court's admission of evidence of his other returned checks, including checks issued after the check giving rise to the charged offense for which he was convicted. Id. at 296. The State asserted that the other returned checks were admissible under section 31.03(c)(1) and rule 404(b). Id. at 297.
In holding that the evidence of the other returned checks was admissible, we noted that the plain language of section 31.03(c)(1) authorizes the admission of evidence of transactions occurring before the charged offense, but not those occurring after. Id. Thus, we concluded that the evidence of the extraneous offenses that occurred prior to the charged offense were admissible under section 31.03(c)(1). Id. We then considered whether the evidence of the remaining returned checks, which were issued after the check giving rise to the charged offense, was admissible under rule 404(b). In doing so, we explained that although section 31.03(c)(1) required "extraneous transaction[s] [to] precede the charged offense," under rule 404(b), "there has been no such requirement for extraneous offenses generally." Id. Further, we noted that despite the existence of section 31.03(c)(1), there appears to be "no logical reason to confine admissibility of extraneous transactions [in theft cases] only to those occurring prior to the charged offense." Id. Thus, we concluded that the evidence of extraneous offenses that occurred after the charged offense was admissible under rule 404(b), although it would not have been under section 31.03(c)(1). Id.
Because section 31.03(c)(1) does not bar us from considering the admissibility of extraneous-offense evidence under rule 404(b), we now address the admissibility of the evidence of the extraneous offense related to Ramirez under that rule. Here, the trial court admitted evidence of an extraneous offense related to Ramirez under rule 404(b) on the issues of identity and intent. Appellant argues that the trial court erred in admitting such evidence for purposes of proving identity because "[i]dentity was never an issue" in this case.
Appellant does not assert that the trial court erred in admitting the extraneous-offense evidence related to Ramirez for purposes of establishing intent. During trial, appellant's counsel specifically stated: "Intent, certainly, is at issue in this case."
An extraneous offense may be admissible to show identity only when identity is an issue in the case. Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004); Lane v. State, 933 S.W.2d 504, 518 (Tex. Crim. App. 1996). The issue of identity may be raised by a defendant during cross-examination of the State's witnesses or if he alleges that someone else committed the crime. Page, 137 S.W.3d at 78; Lane, 933 S.W.2d at 518. A trial court "has considerable latitude in determining that identity is, in fact, disputed." Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim. App. 2008).
Throughout the trial and during cross-examination of the State's witnesses, appellant repeatedly asserted that it was someone other than him, namely Solomon, who actually committed the charged offense of theft. And during cross-examination, appellant frequently sought to discount certain eye-witness testimony that he played a major role in the selling of the property. See Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006) (identity may be raised by defendant during cross-examination of State's witnesses); Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002) (vigorous cross-examination can, by itself, raise issue).
Further, when Robinett testified that one of the two men who approached her seeking information about the property was Solomon, while the other man was someone who "resemble[d]" appellant, appellant's trial counsel objected to Robinett's identification as not being "positive." And on cross-examination of Robinett, appellant's trial counsel emphasized that Robinett had "more interactions" with Solomon than with "th[e] other gentleman," and he asked Robinett to identify Solomon in a photograph. Moreover, during his opening statement and closing argument, appellant's trial counsel repeatedly emphasized that it was Solomon, not appellant, who sold the property and received the purchase money. Specifically, during his opening statement, appellant's trial counsel stated: "I believe the evidence will show that . . . Solomon was in the business of fraudulent real estate transactions. I believe the evidence is going to show that the deed to this property ended up being in [his] name when it was conveyed to . . . Puente[]." And he reiterated the same in his closing argument, stating: "The first thing [the State] claims and [it] told you [it] proved is that [appellant] made deeds and switched people's names out. Did you hear one word about [appellant] making deeds? I didn't." See Segundo, 270 S.W.3d at 86 (identity "may be placed in dispute by the defendant's opening statement or cross-examination"); Burton v. State, 230 S.W.3d 846, 849-50 & n.3 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (defendant placed identity at issue through cross-examination and closing argument); see also Karnes v. State, 127 S.W.3d 184, 193-94 (Tex. App.—Fort Worth 2003, pet. ref'd) (during closing argument, defense vigorously contested whether State proved defendant was perpetrator beyond reasonable doubt). Thus, we conclude that identity was an issue in the trial of this case.
Appellant acknowledges in his brief that Robinett's testimony "may have raised the issue of identity."
Even where identity is an issue, however, extraneous-offense evidence is admissible to show identity only if the charged offense and the extraneous offense are so similar "that the offenses illustrate the defendant's distinctive and idiosyncratic manner of committing criminal acts." Page, 213 S.W.3d at 336 (internal quotations omitted); Jabari v. State, 273 S.W.3d 745, 752 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see also McGregor v. State, 394 S.W.3d 90, 118 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd) ("Raising the issue of identity does not automatically render evidence of an extraneous offense admissible." (internal quotations omitted)). The common characteristics must be so unusual as to act as the defendant's "signature" or "handiwork." See Page, 213 S.W.3d at 336 (internal quotations omitted); Lane, 933 S.W.2d at 519. We must compare the circumstances of the charged offense and the extraneous offenses to determine if they are sufficiently similar to make the extraneous-offense evidence relevant to the issue of identity. See Page, 213 S.W.3d at 336; Lane, 933 S.W.2d at 519. Sufficient similarity may be shown by proximity in time and place or by a common mode of committing the offenses. Lane, 933 S.W.2d at 519; Jabari, 273 S.W.3d at 752.
Here, appellant has not argued that the charged offense is not sufficiently similar to the extraneous offense related to Ramirez. And we note that a comparison between the charged offense and the extraneous offense shows a high degree of similarity. For instance, both offenses, committed within a month of each other, involved the selling of a vacant property with delinquent taxes in Harris County, Texas. See Page, 213 S.W.3d at 337 (sufficient similarity where all three offenses "occurred in mid-1997"); Prince v. State, 192 S.W.3d 49, 54-55 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd) (primary and extraneous offense both occurred in Harris County); Thomas v. State, 126 S.W.3d 138, 146 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) ("[T]ime period between the charged offense and the extraneous offense, 11 months, is not so remote in time to be inadmissible . . . ."). Further, in both transactions, Puente and Ramirez, neither of whom spoke English as their first language, met appellant at the home he was purporting to sell, and they both toured the respective properties with appellant. See McGregor, 394 S.W.3d at 119 (similarities between complainants). Appellant engaged in price negotiations with both Puente and Ramirez, each gave his money, a portion of which, at least, was cash, directly to appellant, and each agreed to pay the delinquent taxes related to his respective property as part of his transaction. Appellant also held himself out to be the owner of both properties that were sold, and he and Solomon were involved in both transactions. And we note that each transaction centered on a forged General Warranty Deed, which purported to convey a property from a previously deceased owner to "H. Solomon" and was not properly notarized. See McGregor, 394 S.W.3d at 119-20 (primary and extraneous offense committed in same manner); Prince, 192 S.W.3d at 54-55 (same).
Based on the identified similarities, we conclude that the facts and circumstances of the extraneous offense related to Ramirez are sufficiently similar to the charged offense. Accordingly, we hold that the trial court did not error in admitting the extraneous-offense evidence related to Ramirez on the issues of identity and intent. See TEX. R. EVID. 404(b).
We overrule appellant's second, third, and fourth issues.
Jury-Charge Error
In his fifth, sixth, and seventh issues, appellant argues that the trial court, in its charge, erred in instructing the jury that it could consider the extraneous-offense evidence related to Ramirez "in determining the issues of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident," rather than only in determining the issues of intent and identity, because "[d]uring Ramirez's testimony, the trial court [had previously] instructed the jury that they were to use the extraneous[-]offense evidence for those two issues only" and its instructions to the jury "constituted a comment on the weight of the evidence." See id.
A review of jury-charge error involves a two-step analysis. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). First, we must determine whether error occurred. Sakil v. State, 287 S.W.3d 23, 25 (Tex. Crim. App. 2009). And if error does exist, we then evaluate whether sufficient harm resulted so as to require reversal. See id. at 25-26. If the defendant preserved error by timely objecting to the charge, an appellate court will reverse if the defendant demonstrates that he suffered some harm as a result of the error. Id. If the defendant did not object at trial, we will reverse only if the error was so egregious and created such harm that the defendant did not receive a fair and impartial trial. Id. at 26. We look to the actual degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
As previously noted, the trial court determined that the evidence of the extraneous offense related to Ramirez was admissible under Texas Rule of Evidence 404(b) on the issues of "identity and intent." The trial court then explained that it would "give [the jury] an oral instruction, as well as a written instruction in the jury charge" regarding the extraneous-offense evidence.
During trial, the trial court instructed the jury about the extraneous-offense evidence as follows:
You're further instructed that if there is any evidence before you in this case alleging that the defendant committed an offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt as to each and every element that the defendant committed such other offense or offenses, if any. And even then you may only consider the same in determining the intent or identity, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.(Emphasis added.)
We presume that the jury followed the trial court's instruction about its proper use of the extraneous-offense evidence. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005).
However, in its charge to the jury, the trial court instructed the jury, over appellant's objection, regarding the extraneous-offense evidence as follows:
You are further instructed that if there is any evidence before you in this case regarding the defendant's committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.(Emphasis added.)
Appellant argues that instructing the jury that it was permitted to consider the extraneous-offense evidence related to Ramirez for purposes other than "identity and intent" was improper because those were the sole purposes "for which the trial court had admitted the evidence."
However, this Court has previously held that it is not an error to submit an instruction to the jury that includes rule 404(b) purposes that were not raised by the evidence, provided that the instruction includes the rule 404(b) purposes about which the State did present evidence. See, e.g., Lauderdale v. State, No. 01-13-00539-CR, 2014 WL 6679634, at *7-8 (Tex. App.—Houston [1st Dist.] Nov. 25, 2014, no pet.) (mem. op., not designated for publication); Brown v. State, No. 01-11-00462-CR, 2012 WL 1893700, at *7 (Tex. App.—Houston [1st Dist.] May 24, 2012, no pet.) (mem. op., not designated for publication); Blackwell v. State, 193 S.W.3d 1, 15-17 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd).
Here, as in our prior cases, the rule 404(b) instruction given by the trial court in its charge to the jury included the purposes of "identity and intent," which were raised by the evidence, and other rule 404(b) purposes that were not. However, the other stated purposes "amounted to surplusage" and their submission did not constitute error by the trial court. Lauderdale, 2014 WL 6679634, at *8 (internal quotations omitted); Blackwell, 193 S.W.3d at 15-17; see also Brown, 2012 WL 1893700, at *7.
As we held in Blackwell, although not as narrowly tailored to the specific issues involved as it could have been, the trial court's charge properly instructed the jury to consider the extraneous-offense evidence for only the purposes permitted by rule 404(b), two of which, identity and intent, were at issue at trial. Blackwell, 193 S.W.3d at 15-17; see also Lauderdale, 2014 WL 6679634, at *8; Brown, 2012 WL 1893700, at *7. Further, we note that the trial court's charge instructed the jury to consider the extraneous-offense evidence for no purpose other than the stated rule 404(b) purposes. It therefore "by implication instructed [the jury] not to consider the extraneous[-]offense evidence as substantive evidence of appellant's guilt." Lauderdale, 2014 WL 6679634, at *8 (first alteration in original) (internal quotations omitted); Blackwell, 193 S.W.3d at 16-17.
Accordingly, we hold that the trial court did not err in instructing the jury in its charge that it could consider the extraneous-offense evidence related to Ramirez "in determining the issues of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." See Lauderdale, 2014 WL 6679634, at *8; Brown, 2012 WL 1893700, at *7; Blackwell, 193 S.W.3d at 15-17.
We overrule appellant's fifth, sixth, and seventh issues.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Justices Jennings, Higley, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).