No. 13-98-395-CR.
Opinion Delivered and Filed: March 11, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 92nd District Court of Hidalgo County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
Opinion by Chief Justice VALDEZ.
Appellant, Humberto Zavala, appeals his conviction for third-degree aggravated assault of a peace officer. See Tex. Pen. Code Ann. § 22.02 (Vernon 2001). By six issues, appellant argues: (1) he is entitled to a new trial because the reporter's record is incomplete; (2) the trial court erred in submitting Geesa reasonable doubt instructions; (3) the trial court abused its discretion by not admitting relevant evidence; (4) the trial court improperly admitted a police report; (5) the trial court erred in failing to award him credit for his pretrial incarceration; and (6) he received ineffective assistance of counsel. We affirm.
Appellant was convicted on June 1, 1998 for assaulting a police officer on February 20, 1992. Section 22.02 of the penal code was amended in 1993, and made aggravated assault of a peace officer a second-degree offense. Unless otherwise noted, all citations to Section 22.02 refer to the statute in place when appellant was convicted.
I. Facts and Procedural History
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here, except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex.R.App.P. 47.4. II. Discussion A. Incomplete Record
By his first issue, appellant argues he is entitled to a new trial because part of the reporter's record is incomplete. He contends the record is missing the transcripts from pretrial hearings, which he argues are necessary for his appeal. Specifically, appellant argues the missing reporter's records are necessary for appellant to raise claims for violations of a plea-bargain agreement and a right to a speedy trial. See Barker v. Wingo, 407 U.S. 515, 515 (1972); Santobello v. New York, 404 U.S. 257, 262 (1971). When a reporter's record is lost or destroyed, an appellant is entitled to a new trial under the following circumstances: (1) if the appellant has timely requested a reporter's record;
(2) if, without the appellant's fault, a significant exhibit or a significant portion of the court reporter's notes and records has been lost or destroyed or-if the proceeding were electronically recorded-a significant portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter's record . . . is necessary to the appeal's resolution; and
(4) if the parties cannot agree on a complete reporter's record.
Tex.R.App.P. 34.6(f) (emphasis added). Appellate courts conduct a harm analysis in determining if the missing record is necessary for the resolution of the appeal. Issac v. State, 989 S.W.2d 754, 757 (Tex.Crim.App. 1999). If the lost or destroyed record is not necessary to the appeal's resolution, "then the loss of that portion of the record is harmless under [rule 34.6(f)]," and a new trial will not be required. Id. A missing reporter's record does not require an automatic reversal and does not prevent an appellate court from conducting a harm analysis. Id. The appellant must establish that the missing portion of the record "is necessary to the appeal's resolution." Routier, 112 S.W.3d 554, 571 (Tex.Crim.App. 2003); Doubrava v. State, 28 S.W.3d 148, 151 (Tex. App.-Eastland 2000, no pet.). Appellant relies on Santobello v. New York, 404 U.S. at 257, to argue that the missing reporter's records prevent him from proving the State did not honor a prior plea-bargain agreement. In Santobello, the defendant was charged with two counts of gambling and initially entered a plea of not guilty. Id. at 258. The defendant later pleaded guilty to a lesser offense after the prosecutor promised not to make a sentencing recommendation to the trial court. Id. After sentencing was delayed because of a missing pre-sentence report, the defendant acquired new counsel, and a new prosecutor and judge also took over. Id. at 259. The new prosecutor, who was unaware of the original plea agreement, recommended a one-year sentence, and the trial court imposed the maximum one-year sentence. Id. The Supreme Court reversed and remanded reasoning that the "adjudicative element inherent in accepting a plea of guilty" requires that the plea bargain be honored if the "plea rests in any significant degree on a promise or agreement of the prosecutor." Id. at 263. Unlike the defendant in Santobello, appellant rejected the plea agreement, elected to have a jury trial on the issue of guilt, and elected to have the judge assess punishment. The record does not support appellant's contention that the State violated any plea-bargain agreement. Further, appellant's contention that the missing pre-trial appearances are necessary to raise a speedy trial claim are not supported by the record. The clerk's record and the trial court findings show that appellant's initial pre-trial appearances with his attorney of record were merely status hearings which set the dates for trial. Moreover, we note that part of the delay in appellant's prosecution occurred when appellant fled the courtroom after he rejected the plea-bargain agreement and before a jury was selected. Accordingly, we conclude that the loss of the reporter's records are harmless and the records are not necessary for the resolution of this appeal. See Tex.R.App.P. 34.6(f); Issac, 989 S.W.2d at 757. Appellant's first issue is overruled. B. Geesa Instruction
By his second issue, appellant argues the trial court committed reversible error when it gave the jury a Geesa instruction defining reasonable doubt because appellant did not agree to the submission of the Geesa instruction. See Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App. 1991), overruled by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). We review a challenge to a jury charge under an Almanza error analysis. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim. App. 1985). Under this standard, we determine: (1) whether the jury charge contains error; and (2) whether the harm requires reversal. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App. 1998); Benn v. State, 110 S.W.3d 645, 648 (Tex. App.-Corpus Christi 2003, no pet.). In Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991), the court of criminal appeals required that a specific definition of reasonable doubt be given to the jury in all criminal cases. Id. at 162. The court of criminal appeals overruled Geesa in October of 2000 reasoning that a conscientious juror reading the Geesa instructions would never convict anyone because the Geesa definition is "redundant, confusing, and logically flawed." Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim. 2000). The Paulson court decided that no definition of reasonable doubt should be given to the jury, but held that it is not reversible error to give a Geesa instruction if both the defendant and prosecutor agree. Id. Finally, in Colbert v. State, 108 S.W.3d 316, 319 (Tex.Crim. App. 2003), the court of criminal appeals held that Paulson would not be applied retroactively to cases properly tried with Geesa instructions. Id. Here, Geesa was good law at the time the case was tried. The record shows this case was properly tried in compliance with Geesa. Because Paulson does not apply retroactively, the issuance of the Geesa instruction was not error. See id.; Mann, 964 S.W.2d at 641. Appellant's second issue is overruled. C. Exclusion of Evidence
By his third issue, appellant argues the trial court committed reversible error in excluding photographs of his wife, which showed injuries caused by the police officers who arrested appellant. Specifically, appellant contends the photographs establish that Officer Santiago Galvan and Officer Juan J. Garza conspired to fabricate charges against appellant in order to cover up the use of excessive police force. We review a trial court's decision on the admissibility of evidence for an abuse of discretion, and its ruling will not be disturbed as long as it falls within the zone of reasonable disagreement. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim. App. 2003); Goff v. State, 931 S.W.2d 537, 553 (Tex.Crim.App. 1996). Texas Rule of Evidence 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. This rule requires evidence to be both material and probative before it is admissible. Miller v. State, 36 S.W.3d 503, 507 (Tex.Crim.App. 2001). Evidence is material if it addresses a "material proposition, i.e., 'any fact that is of consequence to the determination of the action.'" Id. (quoting 1 Steven Goode et al., Texas Practice: Guide To The Texas Rules of Evidence: Civil and Criminal § 401.1 (2d ed. 1993 Supp. 1995)). If the evidence is material, then the proponent must also show that "the evidence is probative, i.e., the proffered evidence must tend to make the existence of the fact 'more or less probable than it would be without the evidence.'" Id. (quoting 1 Steven Goode et al., Texas Practice: Guide To The Texas Rules of Evidence: Civil and Criminal § 401.1 (2d ed. 1993 Supp. 1995)). If the proponent establishes that the evidence is both material and probative, then the evidence is admissible unless it is otherwise barred by the Constitution, statutes, or other rules of evidence. See Tex. R. Evid. 402. Here, the indictment charged that appellant assaulted Officer Santiago Galvan, a peace officer, by intentionally kicking Officer Galvan while he was attempting to arrest appellant. The photographs show that Modesta Zavala, appellant's wife, sustained a bruise on her right cheek and minor abrasions on her arms. They do not show the existence of any conspiracy between Officer Galvan and Officer Garza. Further, they were immaterial because they did not show whether appellant intentionally kicked Officer Galvan while Officer Galvan lawfully attempted to arrest appellant. See Miller, 36 S.W.3d at 507. We conclude the trial court did not abuse its discretion in excluding collateral photographs that did not address a fact that was of consequence to this case. See id.; see also Tex. R. Evid. 401. Appellant's third issue is overruled. D. Admission of Police Report
By his fourth issue, appellant complains the trial court committed reversible error in admitting Officer Galvan's police report, which provided a narrative of appellant's arrest. Police reports are barred by the rules of evidence as inadmissible hearsay. See Tex. R. Evid. 803(6), 803(8)(B); Cole v. State, 839 S.W.2d 798, 806 (Tex.Crim.App. 1990). However, the rule of optional completeness allows for the admission of evidence that is not otherwise admissible in order to fully explain a matter opened by the other party. Gutierrez v. State, 85 S.W.3d 446, 456 (Tex. App.-Austin 2002, no pet.). This rule is not implicated until a party "attempts to have a portion [of the statement] given in evidence . . . [and] the remaining parts of the [statement are] . . . necessary to a full understanding of the evidence." Sauceda v. State, No. 612-02, 2003 Tex.Crim. App. LEXIS 308, at *15 (Tex.Crim.App. Sept. 10, 2003) (designated for publication) (quoting Washington v. State, 856 S.W.2d 184, 186 (Tex.Crim.App. 1993)). Here, appellant's attorney impeached Officer Santiago with the police report, regarding the length of time appellant and Officer Santiago struggled before appellant was subdued, and on whether appellant attacked Officer Santiago with his right or left hand. Officer Santiago stated on cross-examination the entire encounter with appellant lasted between five and six minutes, and that they wrestled on the ground for approximately one and a half minutes. Further, on redirect examination, the State had Officer Santiago read the following portion from his police report: "[I] [j]ust saw [appellant] turn over on his back and his right hand took a swing at me. But he missed. With my left hand, I had his left hand across his chest." The State then admitted, over appellant's hearsay objection, Officer Santiago's police report. Under these facts, we find it was error for the trial court to admit the police offense report into evidence. The appellant never attempted to introduce the report into evidence during cross-examination, and the State clarified the context of Officer Galvan's testimony during redirect examination. The admission of the police report was not necessary to give the jury a full understanding of Officer Galvan's testimony. See Sauceda, 2003 Tex.Crim. App. LEXIS 308, at *15. However, we find the error was harmless. Non-constitutional errors that do not affect the substantial rights of the appellant are disregarded. See Tex.R.App.P. 44.2; Johnson v. State, 967 S.W.2d 410, 417(Tex.Crim.App. 1998). The erroneous admission of evidence does not affect an appellant's substantial rights "if the appellate court, after reviewing the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002) (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001)). Factors relevant to this case in determining harmless error include: (1) the nature of the evidence supporting the verdict; (2) the witnesses' testimony; (3) whether the State emphasized the error; (4) and whether error was cumulative. See Bagheri v. State, 119 S.W.3d 775, 763 (Tex.Crim.App. 2003). Although the State introduced the police report into evidence, the report was cumulative of Officer Galvan's unchallenged testimony. See Chamberlain v. State, 998 S.W.2d 230, 235 (Tex.Crim. App. 1999) (stating erroneous admission of evidence is harmless error if same evidence is elsewhere introduced without objection); see also Bagheri, 119 S.W.3d at 763. Appellant's fourth issue is overruled. E. Pre-Trial Jail Credit
By his fifth issue, appellant argues the judgment should be reformed because the trial court did not properly give him credit for time served. Appellant contends that he was only given two days credit even though he was in jail on this charge from November 6, 1992 through February 4, 1997 and from February 9, 1998 through June 2, 1998. The code of criminal procedure provides "[i]n all criminal cases, the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, other than confinement served as a condition of community supervision, from the time of his arrest and confinement until his sentence by the trial court." Tex. Code Crim. Proc. Ann. art. 42.03 § 2(a) (Vernon Supp. 2004) (emphasis added). The record shows the trial judge entered a nunc pro tunc order crediting appellant with 276 days of pretrial jail time for this cause, which covers his pretrial incarceration for February 20 and 21, and from September 1, 1997 to June 1, 1998. Further, appellant plead guilty to involuntary manslaughter on March 23, 1993, which was an offense unrelated to said cause. He was sentenced to seven years imprisonment and credited with 173 days on that sentence. Finally, although the record shows appellant was arrested on November 6, 1992, it is unclear whether he was in custody for this offense or for the involuntary manslaughter conviction. See Tex. Code Crim. Proc. Ann. art. 42.03 § 2(a) (Vernon Supp. 2004); Steinocher, 2003 Tex. App. LEXIS 9045, at *8 (declining to reform judgment where record is unclear on amount of credit to award). We conclude appellant has not shown that he is entitled to additional credit on his sentence. Appellant's fifth issue is overruled. F. Ineffective Assistance of Counsel
In his final issue, appellant claims his trial counsel was ineffective for failing to secure a ruling on appellant's motion for a speedy trial, for presenting harmful witness testimony during the punishment phase of trial, and for failing to have the trial court award appellant proper jail time credit. To show ineffective assistance of counsel, an appellant must satisfy the two-prong Strickland test set by the Supreme Court. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). First, the appellant must demonstrate that his counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. "This requires showing that his counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. Second, the appellant must show the deficient performance prejudiced his defense. Id.; Thompson, 9 S.W.3d at 812. Under the second prong, the appellant must affirmatively prove prejudice by showing a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Thompson, 9 S.W.3d at 812. Review of counsel's conduct is highly deferential, and there is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. Id. To defeat the presumption, ineffective assistance must be firmly founded in the record. Id. at 814. The appellant must prove both prongs of the Strickland test by a preponderance of the evidence. Tong v. State, 25 S.W.3d 707, 721 (Tex.Crim.App. 2000). To determine if appellant's attorneys provided ineffective assistance for failing to pursue a ruling on his speedy trial motion, we first determine if appellant had a viable speedy trial claim. State v. Kelley, 20 S.W.3d 147, 151-52 (Tex. App.-Texarkana 2000, no pet.). 1. Speedy Trial Claim
The Due Process Clause of the Fourteenth Amendment establishes a fundamental right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 530 (1972); Hull v. State, 699 S.W.2d 220, 221 (Tex.Crim. App. 1985). The Supreme Court implemented an ad hoc balancing test and weighs the following factors when determining if an appellant's right to a speedy trial is violated: (1) the length of delay; (2) the reasons for the delay; (3) the appellant's assertion of his right; and (4) prejudice to the appellant. Barker, 407 U.S. at 530; State v. De Leon, 975 S.W.2d 722, 724 (Tex. App.-Corpus Christi 1998, no pet.). These factors, along with other relevant circumstances, must be considered together in determining if an appellant's right to a speedy trial has been violated. Barker, 407 U.S. at 533. a. Length of Delay
The length of delay is the triggering factor for the Barker analysis. Id. This requires appellant to show some delay which is prejudicial before the other factors are balanced. Id. The length of delay is measured from the time appellant was formally accused or arrested. Id. at 530. Here, there is a five year delay from the time appellant was indicted to the time he was tried. This is sufficient to trigger a Barker analysis. See Burgett v. State, 865 S.W.2d 594, 597 (Tex. App.-Fort Worth 1993, pet. ref'd) (stating five year delay sufficient to trigger Barker analysis but does not automatically establish a violation of the right). b. Reason For Delay
Next, we consider the reason for delay. Deliberate attempts to delay the trial by the State should weigh heavily against the State. See Barker, 407 U.S. at 531. More neutral reasons such as overcrowded courts or negligence by the State is weighed less heavily against the State, but still considered in the analysis since this responsibility rests with the State. Id. We also consider valid reasons justifying the delay. Id. Here, the record shows appellant was being prosecuted for an unrelated offense while this case was pending. The record shows appellant pleaded guilty to committing involuntary manslaughter while out on bond for assaulting a police officer. Appellant entered his plea for that offense on March 23, 1993. He was sentenced to seven years imprisonment and, according to appellant, paroled on August 1, 1995. See Easley v. State, 564 S.W.2d 742, 745 (Tex.Crim.App. 1978) (finding defendant's prosecution for other crimes valid reason for delay). The record also indicates that appellant was free from custody from August 1, 1995 through September 1, 1997. Further, appellant filed a motion to set aside the indictment for failure to receive a speedy trial on February 20, 1997. However, on June 17, 1997, the date trial was to begin, appellant fled the courtroom after rejecting a plea-bargain offer by the State. Appellant's own elusive conduct strongly indicates he did not want a speedy trial. See State v. Munoz, 991 S.W.2d 818, 822 (Tex.Crim.App. 1999) (stating delay attributable in whole or in part to defendant may waive speedy trial claim); Burgett, 865 S.W.2d at 597 (finding defendant's own elusive conduct delaying apprehension and trial enough to waive speedy trial claim). We find this factor weighs in favor of the State. c. Assertion of Right to Speedy Trial
The defendant's assertion of his right to a speedy trial claim is given strong evidentiary weight in this analysis. Barker, 407 U.S. at 532. The more serious the deprivation, the more likely appellant is to complain. Id. The Supreme Court also noted that a defendant's failure to assert his rights makes it difficult to prove he was denied a speedy trial. Id. Here, appellant first asserted his right to a speedy trial approximately four years after being indicted. See Harris v. State, 827 S.W.2d 949, 957 (Tex.Crim.App. 1992) (noting that appellant's failure to timely demand a speedy trial indicates he did not want a speedy trial). We find the four year delay in asserting the right to a speedy trial weighs in favor of the State. d. Prejudice to Appellant
Courts consider prejudice to a defendant based on the following three factors: (1) preventing a defendant's oppressive pre-trial incarceration; (2) minimizing appellant's anxiety and concern; and (3) limiting the possibility the defense will be impaired. Barker, 407 U.S. at 532. Here, appellant was incarcerated from March 23, 1993 through August 1, 1995 for an unrelated offense. He was not in jail for this offense from August 1, 1995 through September 1, 1997. Further, although appellant undoubtedly suffered anxiety and concern, he does not claim that he was unable to put up a defense due to the delay in prosecution. See id. We find this factor weighs in favor of the State. e. Conclusion
Under these facts, we find appellant's elusive conduct determinative to show that appellant did not want a speedy trial. See id. We conclude that appellant did not have a valid speedy trial claim. Therefore, even if appellant's trial counsel had obtained a ruling on this issue, it would not have caused a different result in the proceedings. See Strickland, 466 U.S. at 688. 2. Punishment Phase and Jail Credit
In his final two sub-issues, appellant contends his trial counsel was ineffective for presenting harmful testimony and for failing to ensure that appellant received proper jail credit for his pre-trial incarceration. Appellant argues Angela Reyes gave harmful testimony during the punishment phase of trial after being called to the stand by appellant's trial counsel. Reyes stated that appellant had previously been involved in a fight. However, appellant does not show that counsel's conduct in calling this witness to the stand fell below an objective standard of reasonableness, or that there is a reasonable probability the outcome would have been different. See id. Finally, we find appellant did not prove he was entitled to more jail-time credit. Therefore, we conclude he did not meet his burden of proving that his trial counsel's conduct fell below an objective standard of reasonableness on these two points. See id. Appellant's final issue is overruled. G. Conclusion
Having overruled all of appellant's issues, we affirm the judgment of the trial court.