Foster v. State

KODELL VALENTINO FOSTER, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-18-00051-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

December 19, 2018

On appeal from the 54th District Court of McLennan County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Contreras and Benavides

Memorandum Opinion by Justice Contreras

Appellant Kodell Valentino Foster appeals three convictions of sexual assault, each a second-degree felony. See TEX. PENAL CODE ANN. § 22.011 (West, Westlaw through 2017 1st C.S.). By three issues, appellant argues that: (1) he was denied his constitutional right to a speedy trial, (2) the trial court erred when it allowed the introduction of character evidence, and (3) the trial court erred when it allowed the introduction of hearsay evidence. We affirm.

I. BACKGROUND¹

Appellant was arrested in December of 2014. In January of 2015, a grand jury indicted appellant on three counts of sexual assault. See id. On March 10, 2016, appellant filed a motion for speedy trial and asked that the charges be dismissed with prejudice. However, no order setting a hearing on the motion was filed.

On September 29, 2016, appellant's defense counsel filed a motion to withdraw as attorney of record. The trial court held a hearing on the motion on October 21, 2016, and the following exchanged occurred:

[Defense Counsel]: Mr. Foster, tell the Judge why you asked me to file the motion to withdraw.

[Appellant]: Well, sir, with all due respect to the Court. [Counsel] and I, we get along great. I just feel like the process isn't moving along as—as it should be. We filed a motion for a speedy trial on March the 1st, 2016. Also, there's evidence that proves my innocence that—that's came [sic] out, I believe, that we do have. And I just haven't been able to get any answers up until now. I've been incarcerated for almost two years. I haven't gotten absolutely any answers as far as why I'm still here, why I cannot get a—a date to go to trial. Since, obviously, the case will not get dismissed, I would like to go to trial. But I can't get a date to go to trial. And neither I or [Counsel] have been able to get an answer, so . . . .

The trial court told appellant that, at that time, trial was set for November 7, 2016—just over two weeks away. At the end of the hearing, the trial court asked, "anything else from the State or from the defense at this time?", and defense counsel answered "No, sir." The trial court responded: "Okay. Then at this time, I'm going to deny the Motion to Withdraw."

Trial began on December 4, 2017.² The complainant testified that she was seventeen years old when the offenses took place. She explained that, while under the influence of prescribed medication, she was walking down the street when appellant offered to give her a ride to her friend's house. The complainant accepted his offer and got in the vehicle. Appellant, however, drove to his house and sexually assaulted her. After the assault was over, appellant drove the complainant away from his house, and she got out of the car once she recognized a gas station they had passed. Appellant had two roommates at the time of the assault: Estella and Elmer Sadler. Both Mr. and Mrs. Sadler testified at trial.

The State called Mrs. Sadler as a witness during its case in chief. During cross-examination, appellant's defense counsel asked Mrs. Sadler if she had any concerns about her children being around appellant when appellant was home, and she answered "No." The State, on re-direct, asked Mrs. Sadler whether she knew appellant had recently been paroled and whether she was aware of his prior felony convictions. Defense counsel objected to this testimony under Texas Rules of Evidence 401, 402, 403, 404(b), and 802. The trial court overruled the objections. Mrs. Sadler testified that: she knew appellant had moved in with her and her husband shortly after being released on parole; she knewappellant had been imprisoned for multiple years prior to his release on parole; and she did not know he had convictions for possession of cocaine, possession of a controlled substance with intent to deliver, and possession of a firearm by a felon.

The jury found appellant guilty of all three counts. The State sought to enhance appellant's punishment due to a prior felony conviction, see id. § 12.42(b) (West, Westlaw through 2017 1st C.S.), and appellant pleaded true to the enhancement allegation. The jury assessed punishment at confinement for life and a $10,000 fine for each count, with the sentences to run concurrently. See id. § 12.32 (West, Westlaw through 2017 1st C.S.) (providing that a first-degree felony is punishable by imprisonment for a term between five to ninety-nine years and a fine not to exceed $10,000). This appeal followed.

II. RIGHT TO SPEEDY TRIAL

By his first issue, appellant argues that his right to a speedy trial was violated.

A. Applicable Law and Standard of Review

A criminal defendant has the right to a speedy trial. See U.S. CONST. amends. VI, XIV; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05 (West, Westlaw through 2017 1st C.S.); Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim. App. 2014); see also Dillingham v. U.S., 423 U.S. 64, 65 (1975) (noting that the right to a speedy trial is triggered by formal indictment or arrest). "This ensures that the defendant is protected from oppressive pretrial incarceration, mitigates the anxiety and concern accompanying public accusations, and ensures that the defendant can mount a defense." Henson v. State, 407 S.W.3d 764, 766 (Tex. Crim. App. 2013) (citing Barker v. Wingo, 407 U.S. 514, 532 (1972)).

We analyze speedy trial claims "on an ad hoc basis," weighing and balancing the factors set forth in Barker v. Wingo: (1) the length of the delay, (2) the reason for the delay, (3) the assertion of the right, and (4) the prejudice to the accused. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008); see Barker, 407 U.S. at 530. "While the State has the burden of justifying the length of delay, the defendant has the burden of proving the assertion of the right and showing prejudice." Cantu, 253 S.W.3d at 280. "The defendant's burden of proof on the latter two factors 'varies inversely' with the State's degree of culpability for the delay." Id.

We apply a bifurcated standard of review to a trial court's ruling on a speedy trial claim. Id. at 282. We review the factual components for an abuse of discretion, while we review the legal components de novo. Id. Review of the individual Barker factors necessarily involves factual determinations and legal conclusions, but the balancing test as a whole is "a purely legal question." Id. With regard to the trial court's resolution of factual issues, we view all the evidence in the light most favorable to the trial court's ultimate ruling. Id.

B. Preservation

Preservation requirements apply to speedy-trial claims. Henson, 407 S.W.3d at 768. "Without a requirement of preservation, a defendant would have great incentive not to insist upon a speedy trial and then to argue for the first time on appeal that the prosecution should be dismissed because of delay." Id. at 769. Thus, a defendant can "either fail to insist upon a speedy trial and reap the benefits caused by delay, or he can insist on a prompt trial, and if it is not granted, argue for a dismissal." Id.

To preserve a speedy-trial claim for appellate review, a defendant must: (1) raise the claim before trial begins, (2) present evidence of the claim to the trial court, and (3) obtain a ruling after presentation of evidence of the claim. See TEX. R. APP. P. 33.1; Gonzalez, 435 S.W.3d at 805-08; Henson, 407 S.W.3d at 768-69; Crocker v. State, 441 S.W.3d 309, 311 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Dean v. State, 995 S.W.2d 846, 850 (Tex. App.—Waco 1999, pet. ref'd). Appellate courts will generally find that a trial court made an implicit ruling on an objection when the objection was brought to the trial court's attention and the trial court's subsequent action clearly addressed the complaint. See James v. State, 102 S.W.3d 162, 169 (Tex. App.—Fort Worth 2003, pet. ref'd); State v. Kelley, 20 S.W.3d 147, 153-54 & n.3 (Tex. App.—Texarkana 2000, pet. ref'd).

C. Analysis

Here, appellant filed a motion for speedy trial on March 10, 2016, but he did not obtain a hearing or an explicit ruling on the motion. On appeal, appellant points to the trial court's hearing on the motion to withdraw in support of his speedy trial argument. The State argues that appellant did not preserve this complaint for our review. Assuming, without deciding, that appellant preserved error, we proceed to analyze the Barker factors. Cantu, 253 S.W.3d at 280.

1. The First Factor: Length of Delay

The length of the delay between an initial charge and the defendant's demand for speedy-trial acts as a triggering mechanism. See Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) (en banc); State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999) (en banc). Unless the delay is presumptively prejudicial, courts need notexamine the other three factors. Zamorano, 84 S.W.3d at 648. Thus, any speedy trial analysis depends first upon whether the delay is more than "ordinary"; if so, the longer the delay beyond that which is ordinary, the more prejudicial that delay is to the defendant. Gonzalez, 435 S.W.3d at 809; Zamorano, 84 S.W.3d at 649.

Here, the delay of twenty-two months between appellant's arrest and the denial of his motion for speedy trial is presumptively prejudicial and sufficient to trigger a Barker analysis. See Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992) (noting that a one-year delay is presumptively prejudicial); Shaw v. State, 117 S.W.3d 883, 888-89 (Tex. Crim. App. 2003) (same). Because the delay of twenty-two months triggers judicial examination of the claim, this factor weighs against the State. See Gonzalez, 435 S.W.3d at 809; Zamorano, 84 S.W.3d at...