NO. 07-10-00345-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 25, 2012
RICKY CASTILLO JALOMO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;
NO. 21,317-C; HONORABLE ANA ESTEVEZ, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Ricky Castillo Jalomo, appeals his conviction for aggravated assault
with a deadly weapon1 and resulting twenty-year sentence. On appeal, he contends he
was denied his constitutional right to a speedy trial. Further, he challenges the
sufficiency of the evidence and the trial court’s denial of his motion for continuance. We
will affirm.
1 See TEX. PENAL CODE ANN. §§ 22.01, 22.02(a)(2)(West 2011). Factual and Procedural History
The instant case stemmed from an encounter in March 2007 between appellant
and complainant Ricardo Ballin. Appellant was dating Ballin’s ex-girlfriend, causing
animosity between the two men. This particular conflict began outside a nightclub and,
after appellant, as driver of one vehicle, chased down the vehicle in which Ballin was a
passenger, culminated in Ballin being dragged from the vehicle and severely beaten by
five men, one of whom struck Ballin a number of times with a pool cue. Ballin suffered
facial fractures, lacerations, and a concussion as a result of the beating.
Appellant was originally indicted on charges of aggravated assault with a deadly
weapon in June 2007. The State moved to dismiss that prosecution in May 2009 after it
learned that appellant was rendered paraplegic in a 2008 shooting. On February 17,
2010, after learning that appellant was involved in yet another violent incident, the State
considered him a continued threat and re-indicted him on charges of aggravated assault
with a deadly weapon in connection with the 2007 incident. A Randall County jury
found him guilty of the offense as charged and assessed punishment at twenty years’
imprisonment and a $2,500.00 fine.
On appeal from that conviction, appellant raises three issues. First, he contends
that the trial court erred in denying his motion to dismiss for violation of his constitutional
right to a speedy trial. Secondly, he maintains that the evidence is insufficient to
support his conviction. Finally, he contends that the trial court abused its discretion in
denying his motion for continuance and proceeding to trial over his announcement of
“not ready.”
2 Right to a Speedy Trial
Standard of Review and Applicable Law
We analyze federal constitutional speedy trial claims “on an ad hoc basis” by
weighing and then balancing the factors outlined in Barker v. Wingo, 407 U.S. 514, 92
S.Ct. 2182, 33 L.Ed.2d 101 (1972): (1) length of delay, (2) reason for delay, (3)
assertion of right, and (4) prejudice to the accused. Cantu v. State, 253 S.W.3d 273,
280 (Tex.Crim.App. 2008). A delay that is unreasonable enough to be considered
presumptively prejudicial triggers the Barker analysis. Id. at 281; see Doggett v. United
States, 505 U.S. 647, 651–52, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).
We review the trial court’s ruling on a speedy trial issue under a bifurcated
standard of review, applying “an abuse of discretion standard for the factual
components, and a de novo standard for the legal components.” Zamorano v. State, 84
S.W.3d 643, 648 (Tex.Crim.App. 2002). Review of the individual Barker factors
necessarily involves factual determinations and legal conclusions, but “[t]he balancing
test as a whole . . . is a purely legal question.” Id. at 648 n.19 (quoting Johnson v.
State, 954 S.W.2d 770, 771 (Tex.Crim.App. 1997)).
Analysis
(1) Extent of Delay
The parties initially disagreed on the dates to be used when calculating the delay
relevant to appellant’s speedy trial claim. Appellant urged that the relevant delay is
measured from the date of the first indictment to the date trial began on the subsequent 3 one. The State maintained that the delay is measured from the date of the second
indictment to the date of trial on that indictment.
We begin with the general proposition that the time in which a defendant is
formally accused is the relevant period for evaluating a speedy trial issue. See United
States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). It follows
that “[o]nce charges are dismissed, the speedy trial guarantee is no longer applicable.”
United States v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).
More specifically, the Texas Court of Criminal Appeals has held that the time between a
good faith dismissal of criminal charges and filing of new charges is not to be
considered in a speedy trial claim. See Deeb v. State, 815 S.W.2d 692, 705
(Tex.Crim.App. 1991) (citing MacDonald, 456 U.S. at 7). When confronted with a case
involving similar time frames, our sister court delivered a well-organized application of
Deeb’s principles in State v. Guerrero, 110 S.W.3d 155 (Tex.App.—San Antonio 2003,
no pet.). In Guerrero, the court heard the State’s appeal from the trial court’s dismissal
of the indictment based on a speedy trial violation. Id. at 158. In its review, the court
included in its calculation of the relevant delay the time period from the “initial indictment
. . . to the date when the trial court granted the State’s motion to dismiss,” which, as
here, was approximately twenty-three months. Id. at 159. Also included was the seven-
month period between the subsequent indictment and the trial court’s disposition of that
indictment, which was only slightly longer than the six-month period before us. See id.
The Guerrero court concluded that the relevant time period with which it was to evaluate
the speedy trial issue was approximately thirty months. Id.
4 Based on this authority and assuming, in the absence of evidence to the
contrary, that the State’s 2009 dismissal was a good faith dismissal,2 we conclude that
the relevant times of delay here should include (1) the approximately twenty-three
months between the original indictment (06/20/2007) and the first dismissal
(05/13/2009) and (2) the approximately six months between the subsequent indictment
(02/17/2010) and the date trial began on the subsequent indictment (08/23/2010).
Based on these figures, the total delay relevant to the speedy trial inquiry at issue is
approximately twenty-nine months. Authority supports the conclusion that a twenty-
nine-month delay is sufficiently long to be “presumptively prejudicial” and, thus, serves
to trigger our examination of the remaining three Barker factors. See Shaw v. State,
117 S.W.3d 883, 889 (Tex.Crim.App. 2003); Guerrero, 110 S.W.3d at 159.
(2) Reason for delay
The State bears the burden of justifying the delay. Emery v. State, 881 S.W.2d
702, 708 (Tex.Crim.App. 1994). We assign various weights to various reasons for the
delay. See Dragoo v. State, 96 S.W.3d 308, 314 (Tex.Crim.App. 2003); Zamorano, 84
S.W.3d at 649. When the record is silent regarding the reason for the delay, we
2 As we will discuss more thoroughly, though appellant seems to contend that the State somehow breached an agreement it had made with the defendant by re-indicting him on the previously dismissed charges, the record does not support such finding. Nor do appellant’s assertions transform the State’s dismissal into one of bad faith. To the contrary, the record before us suggests that the State dismissed the pending assault charges in light of appellant’s severe injuries resulting in paralysis and the State’s conclusion that appellant was no longer a threat to the community. That later developments (in the form of appellant’s continued criminal activity) caused the State to reconsider its conclusion does not render the previous dismissal a bad faith dismissal. 5 presume neither a deliberate attempt on the part of the State to prejudice the defense
nor a valid reason for the delay. Dragoo, 96 S.W.3d at 314.
The record of the pretrial hearing on appellant’s speedy trial motion
demonstrates that at least some of the first twenty-three-month delay pertaining to the
original indictment, prior to dismissal, was attributable to another, related ongoing
prosecution of appellant in Potter County to which Randall County deferred. See
Dragoo, 96 S.W.3d at 314 n.4; Easley v. State, 564 S.W.2d 742, 745 (Tex.Crim.App.
1978); see also McIntosh v. State, 307 S.W.3d 360, 367 (Tex.App.—San Antonio 2009,
pet. ref’d) (observing that “prosecution of the defendant on other charges may be a valid
reason for a delay in bringing him to trial,” provided that the State “offer argument and
proof to sustain its burden on this factor”). Pretrial testimony indicates that the Potter
County prosecution was set for trial, and a jury was empanelled. However, for an
unidentified reason, in 2008 and before appellant was shot, the Potter County case was
dismissed, permitting Randall County to resume prosecution under the original
indictment.
In July 2008, the original lead prosecutor learned that appellant was seriously
wounded in an unrelated shooting and was rendered paraplegic. The record suggests
no activity related to the case from that point until March 2009 when defense counsel
sent medical records to the State to confirm appellant’s medical condition. The State
considered the “extenuating circumstances” and, “in the interest of justice,” decided not
to advance the case against appellant any further. In May 2009 and citing appellant’s
serious health problems, the State moved to dismiss pending charges. At the hearing
6 on appellant’s motion to dismiss, the State asserted and provided testimony suggesting
that it did not prosecute the case during the months after it learned of appellant’s
serious injuries because of his attendant long and intensive recovery period. Appellant
testified to his six-month hospital stay and the lengthy rehabilitation process.
After the State learned that appellant was involved in another violent incident, it
re-indicted appellant, whom it now considered a continued threat to the community, in
February 2010. Considering the State’s evidence in support of its explanations for the
initial delay–the concurrent prosecution in Potter County and, later, a delay connected in
some degree to appellant’s significant injuries–this factor seems to weigh slightly in
favor of valid justification for this portion of the delay. See Easley, 564 S.W.2d at 745;
McIntosh, 307 S.W.3d at 367–68. The record provides little evidence regarding the six-
month delay between re-indictment and trial. We note that this portion of the delay is
not remarkably lengthy and would appear to be attributable to the regular course of the
administration of justice, a more neutral reason. See Zamorano, 84 S.W.3d at 649
(noting that neutral reasons for delays, such as overcrowded dockets, are weighed less
heavily against the State).
Appellant maintains that, by re-indicting appellant, the State breached its
agreement with appellant that led to the 2009 dismissal. The State’s bad faith, he
argues, is imputed to its delay in bringing appellant to trial. Appellant then relies on the
proposition that a bad faith delay in bringing a defendant to trial is a “virtually automatic”
speedy trial violation. See Doggett, 505 U.S. at 657 (citing Barker, 407 U.S. at 531).
7 Appellant’s contention is premised on the fact that the cause was originally
dismissed as a part of a plea negotiation. However, nothing in the record supports such
a characterization. The State’s motion to dismiss cites the following basis for dismissal:
While this cause was pending[,] the defendant was shot twice during a drive-by. Medical records obtained by the State reveal that the Defendant is now a paraplegic and suffers additional serious health problems as a result of the wounds.
Further, the original prosecutor unequivocally and repeatedly testified that he and
defense counsel never arrived at any sort of bargained-for agreement to dismiss, a
position consistent with the basis advanced in the State’s motion to dismiss.
(3) Assertion of right
Appellant is responsible for asserting his right to a speedy trial. State v. Munoz,
991 S.W.2d 818, 825 (Tex.Crim.App. 1999). We do consider the fact that appellant
asserted his right in a motion to dismiss. Authority suggests that the fact that a
defendant seeks dismissal, rather than prompt commencement of trial, is relevant to this
factor. See Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. 1983).
Appellant maintains that he asserted his right to a speedy trial by negotiating the
2009 dismissal of the original indictment. In addition to the previously cited evidence
indicating that there was never a negotiated agreement regarding dismissal, the original
prosecutor testified that there was no mention of speedy trial concerns during the
pendency of the original indictment. Indeed, the record would support this conclusion.
The State’s motion to dismiss the first indictment and the evidence adduced at the
hearing on appellant’s motion to dismiss the second one fail to suggest that appellant’s
8 right to a speedy trial in any way factored into the dismissal. In fact, at the pretrial
hearing, the State asked the trial court to take judicial notice that no assertion of the
right to a speedy trial had been “formally placed” before the trial court. In response and
without objection, the trial court took judicial notice of the case file. The record
demonstrates that appellant failed to assert his right to a speedy trial during the twenty-
three months in which the original indictment was pending prior to dismissal.
After re-indictment, the record shows that appellant first asserted his right in a
motion to dismiss three days before trial. We also note that appellant moved for a
continuance the day before filing his motion to dismiss. Appellant’s rather paltry
assertion of his right, by seeking dismissal on the eve of trial, ultimately, weighs against
appellant’s claim that he was denied his right to a speedy trial.
(4) Prejudice
We consider this factor in light of the interests the right to a speedy trial was
designed to protect: (1) oppressive pretrial incarceration, (2) excessive anxiety over the
pending charges, and (3) impairment of an accused’s ability to present a defense.
Barker, 407 U.S. at 532. The defendant bears the burden of making an initial showing
that the delay was prejudicial. Munoz, 991 S.W.2d at 826. When the defendant makes
a prima facie showing of prejudice, the burden shifts to the State to show that the
defendant suffered “no serious prejudice beyond that which ensued from the ordinary
and inevitable delay.” Id. at 826 (quoting Ex parte McKenzie, 491 S.W.2d 122, 123
(Tex.Crim.App. 1973)).
9 Appellant asserts the following considerations as evidence that he was
prejudiced “in connection with the prosecution”: (1) having been arrested three times,
(2) having been shot while the case was pending, (3) “anxiety,” and (4) excessive bond.
The State points out appellant’s failure to demonstrate that the delay impaired his ability
to make a defense. The State also emphasizes appellant’s acquiescence to the delay
and the fact that appellant was out on bond at all relevant times.
Here, pretrial incarceration is not a significant issue because the record suggests
that appellant was out on bond during the delay.3 Appellant testified that he
experienced “anxiety” and the concern about the pending charges bothered him “a lot.”
Though not offered to directly address appellant’s evidence of prejudice, we note the
evidence that appellant had also faced aggravated assault charges in Potter County
and life-threatening gunshot wounds, both of which likely contributed to his anxiety.
Though advanced in support of the sufficiency of the evidence challenge,
appellant also emphasizes that one of the witnesses to the incident was on felony
probation at the time of the incident and would have had to have admitted that she was
at the bar that night, likely in violation of the terms of her probation. Consequently,
appellant contends, had the State brought appellant to trial earlier–while the witness
was still on probation–it may have had to do so without the benefit of her testimony
since she may have refused to testify based on her privilege against self-incrimination.
Though the connection is rather tenuous, his contention lends itself to the impairment-
of-defense interest. And, with respect to this interest, affirmative proof of particularized
3 Except, we note, to the extent appellant could be read to intimate that not being incarcerated during the delay in prosecution indirectly contributed to his being shot. 10 prejudice is not essential to every speedy trial claim, because “excessive delay
presumptively compromises the reliability of a trial in ways that neither party can prove
or, for that matter, identify.” Doggett, 505 U.S. at 655. However, any “presumption of
prejudice” is extenuated by the defendant’s acquiescence in the delay. See id. at 658.
The State seizes on appellant’s acquiescence here.
In balancing the Barker factors, we conclude that the prejudice weighs slightly in
favor of appellant’s claim, but diminishes when we consider that he acquiesced to the
delay. When we evaluate this diminished prejudice in light of the both neutral and valid
reasons which weighed against appellant’s claim and appellant’s meager assertion of
his right to a speedy trial by seeking dismissal on the eve of trial, we conclude that the
balancing test ultimately weighs against appellant’s contention that his right to a speedy
trial was violated on these facts. We overrule appellant’s issue.
Sufficiency of the Evidence
Standard of Review
In assessing the sufficiency of the evidence, we review all the evidence in the
light most favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State,
323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in
character, weight, and amount to justify a factfinder in concluding that every element of
the offense has been proven beyond a reasonable doubt is adequate to support a
conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful 11 that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no
higher standard of appellate review than the standard mandated by Jackson.” Id.
When reviewing all of the evidence under the Jackson standard of review, the ultimate
question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07
n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d
404, 448–50 (Tex.Crim.App. 2006), as outlining the proper application of a single
evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s
credibility and weight determinations because the jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony.” Id. at 899.
Aside from the men who participated in the assault, there were three witnesses
to the events surrounding the 2007 assault: Sandra Mendez, Kristie Palacios, and
complainant Ballin. Ballin testified that he recalls little of the night as a result of his
intoxication and the injuries he sustained, leaving Mendez and Palacios as the primary
witnesses. The focal point of appellant’s contention is their conflicting testimony
regarding who struck Ballin with the pool cue.
Though she did not know his name at the time, Mendez recognized appellant
that night as someone she had seen in the past. She testified that appellant was at the
scene of and “involved” in the beating. She testified that appellant pulled Ballin from the
vehicle but was not the man who wielded the pool cue; an unidentified assailant did. As
the five men beat Ballin and as Palacios summoned police, she eventually wrestled the
12 bloody pool cue from the unidentified man and swung it in the direction of Ballin’s
assailants who promptly left.
Mendez’s testimony that another man struck Ballin with the pool cue runs
contrary to what Palacios recalled. Palacios saw appellant strike Ballin with the cue as
the four other men held Ballin down and kicked and punched him. She testified that it
was appellant from whom Mendez wrestled away the cue. Consistent with Mendez, she
testified that appellant pulled Ballin out of the vehicle.
Mendez and Palacios testified to accounts of the night that were, in most part,
consistent. But they testified differently as to the identity of the man who struck Ballin
with the pool cue. The State acknowledges this direct conflict in testimony and correctly
characterizes appellant’s sufficiency complaint as relating to resolution of this conflict in
testimony and witness credibility which, of course, this Court does not reconsider.
Resolution of conflicts or inferences therefrom lies within the exclusive province of the
jury as trier of fact, and it may choose to believe all, none, or some of the evidence or
testimony presented. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App. 1995).
Further, appellant’s contentions fail to account for the fact to which both Mendez
and Palacios testified: it was appellant who forcibly removed Ballin from the vehicle and
dragged him outside where the five men commenced beating and kicking him. Under
the trial court’s charge, the jury was authorized to find appellant guilty as either principal
or party to the charged offense. See TEX. PENAL CODE ANN. §§ 7.01, 7.02(a)(2) (West
2011); Vega v. State, 267 S.W.3d 912, 915–16 (Tex.Crim.App. 2008). Appellant does
13 not challenge the sufficiency of the evidence4 to support the jury’s possible conclusion
that, based on uncontroverted evidence of appellant’s participation in or instigation of
the beating, appellant was guilty, as a party, of aggravated assault. The evidence was
sufficient to support the jury’s finding that appellant was, at a minimum, a party to the
assault. See Vega, 267 S.W.3d at 915 (concluding that, if hypothetically correct jury
charge for case would authorize jury to convict on alternative theories of liability,
reviewing court must deem evidence sufficient if sufficient under any theory of liability).
We overrule appellant’s second issue.
Denial of Motion for Continuance
The denial of a motion for continuance is within the sound discretion of the trial
court, and we review the trial court’s ruling for an abuse of that discretion. Renteria v.
State, 206 S.W.3d 689, 699 (Tex.Crim.App. 2006). An appellant claiming erroneous
denial of a motion for continuance must show (1) the trial court erred in denying the
motion for continuance, and (2) such denial harmed him in some tangible way. See
Gonzales v. State, 304 S.W.3d 838, 843 (Tex.Crim.App. 2010).
The trial court granted the State’s amendment on August 12, at least ten days
before trial. The State amended the indictment to include notice of its intent to use
appellant’s prior conviction at the punishment phase of trial. On August 19, appellant
4 Nor does appellant raise a point of error related to jury charge error. 14 moved for a continuance. Put generally, the bases of his motion were (1) discussions
regarding State’s plea offers, (2) denial of access to investigators, and (3) lack of notice
of amendment to indictment. On appeal, it appears that appellant focuses on lack of
notice of the amendment as a basis for seeking a continuance.
Although this issue as presented raises a variety of sub-issues,5 we note that the
substance of the amendment was the State’s intent to use a prior conviction to enhance
punishment. So, appellant’s contentions on appeal must be directed at the adequacy of
the State’s notice of its intent to enhance punishment. Looking at the issue as such, we
note that, contrary to appellant’s contention, article 28.10 has no application in this
context. See TEX. CODE CRIM. PROC. ANN. art. 28.10 (West 2006); Villescas v. State,
189 S.W.3d 290, 294 (Tex.Crim.App. 2006); Johnson v. State, 214 S.W.3d 157, 158–59
(Tex.App.—Amarillo 2007, no pet.). The Villescas court concluded the Brooks notice
requirement was of “constitutional origin” and that a ten-day period had no special
significance in the determination of the timeliness of the State’s notice of intent to seek
enhanced punishment. See Villescas, 189 S.W.3d at 294 (discussing Brooks v. State,
957 S.W.2d 30, 34 (Tex.Crim.App. 1997)). Our task, instead, is to determine whether
constitutionally adequate notice was given. See id. at 294 (citing Oyler v. Boles, 368
U.S. 448, 452, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962)). More specifically, in the case at
5 On appeal and citing TEX. R. CIV. P. 21a, appellant argues that the faxed document memorializing the amendment was deemed received three days later, on August 15, less than 10 days before trial and, consequently, ran afoul of TEX CODE CRIM. PROC. ANN. arts. 1.27 and 28.10. Appellant cites no authority to support the propriety of applying a rule of civil procedure in a criminal context, and the State takes issue with this approach. Having disposed of this issue on other grounds, we need not address the merits of such an approach. 15 bar, we must determine whether appellant was denied constitutionally adequate notice
and, therefore, provided the trial court with a basis for his continuance.
In determining whether constitutionally adequate notice was given on these facts,
we observe that “[i]t is well-settled . . . that due process does not require pretrial notice
‘that the trial on the substantive offense will be followed by a habitual criminal
proceeding.’” Pelache v. State, 324 S.W.3d 568, 576 (Tex.Crim.App. 2010) (quoting
Oyler, 368 U.S. at 542). Based on this well-settled authority that pretrial notice of intent
to enhance is generally not even required, the trial court could have concluded that the
State’s notice of intent to enhance punishment was constitutionally adequate in terms of
timeliness when it was, in fact, given well in advance of trial. Because appellant
received notice beyond the minimum required by due process, the trial court could have
denied appellant’s motion for a continuance made on the basis of notice and did not
abuse its discretion by doing so. See Gonzales, 304 S.W.3d at 843.
Further, appellant has not shown that the denial of a continuance rendered him
unable to prepare a defense to the enhancement allegations. He makes no assertion
that, had he had more time, he could and would have prepared a defense to the
enhancement allegation. To the contrary, the record shows that appellant pleaded true
to the enhancement allegation at the opening of the punishment phase. So, appellant
has failed to demonstrate the denial of his motion for continuance harmed him in some
tangible way. See id. We overrule appellant’s third and final issue.
16 Conclusion
Having overruled the three issues appellant has presented, we affirm the trial
court’s judgment of conviction.
Mackey K. Hancock Justice
Do not publish.