                                  MEMORANDUM OPINION
                                          No. 04-10-00412-CR

                                          Robert M. WHITE,
                                              Appellant

                                                    v.

                                          The STATE of Texas,
                                                Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CR-2772
                         Honorable Catherine Torres-Stahl, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: July 20, 2011

AFFIRMED AS MODIFIED

           Appellant Robert M. White appeals his conviction of burglary of a habitation with intent

to commit aggravated assault on two issues, speedy trial and sufficiency of the evidence. We

affirm the judgment of the trial court.

                                                BACKGROUND

           On the night of May 26, 2007, Richard Araujo was in his trailer house with Maricela

Romero, his girlfriend. Around 9:00 p.m., White began banging a metal object on the sides and
                                                                                   04-10-00412-CR


door of Araujo’s trailer, while calling out threats that he was “going to get [Araujo].” According

to Araujo, such harassment and verbal threats by White were customary ever since Araujo’s

involvement with Romero because White was her ex-boyfriend and lived in the same trailer

park. In fact, a few hours earlier that same night, Araujo and White had fought unarmed outside

Araujo’s home after White had called Araujo outside. The police were called to end this earlier

disturbance, but White left before they arrived. During the fight, White repeatedly struck Araujo,

causing severe facial bruises that required treatment by EMS. In the interim between the fight

and 9:00 p.m., Araujo and Romero remained inside the locked trailer in the hope that White

would not return.

       According to Araujo, White’s reappearance outside his door at 9:00 p.m. confirmed

Araujo’s fear that White sought to complete his earlier assault. Rather than calling the police

again, Araujo fashioned a makeshift spear by taping together a broom and a kitchen knife which

he placed by the front door. When White kicked open the front door, Araujo thrust the spear at

him. Araujo testified that White had only placed one foot inside his home when Araujo stabbed

him; White retreated and ran off into the darkness. Araujo stated that White was holding a round,

metal object when he kicked in the door.

       Upon arriving at the scene, Officers Reygadas and Terrill discovered numerous

bloodstains on Araujo’s front porch and a blood trail leading from the doorway’s threshold into

Araujo’s front yard. They also found bloodstains on the ground in White’s front yard, as well as

bloodstains on the handle end of a broken garden hoe lying near White’s porch. The officers did

not locate White that night.

       Almost one year later, on April 8, 2008, White was indicted for burglary of a habitation

with intent to commit aggravated assault against Araujo; a warrant for White’s arrest was issued



                                               -2-
                                                                                      04-10-00412-CR


the same day. According to White, he had returned to his permanent residence in Midland, Texas

in May 2007; he was arrested and jailed in Midland from June to December 2007 for outstanding

tickets. White testified he had no knowledge of the burglary charge until he was arrested for a

routine traffic violation on February 21, 2009, at which time he was also arrested on the

outstanding burglary warrant. White was arraigned on February 27, 2009, and appointed counsel

on April 1, 2009. On May 20, 2009, White filed a pro se motion for speedy trial. The original

trial setting for April 27, 2009 was reset to July 13, 2009 and then to October 12, 2009. White’s

counsel filed a motion to set aside the indictment on speedy trial grounds on October 12, 2009.

After a fourth reset to February 1, 2010, trial ultimately began on May 3, 2010. At no time did

either party move for a continuance. White waived his right to a jury, and proceeded with a

bench trial. After hearing all the evidence, the court found White guilty and sentenced him to

eight years’ imprisonment plus a $1500 fine. White now appeals.

                                            DISCUSSION

       Speedy Trial

       White first argues the trial court erroneously denied his motion to dismiss the indictment

on federal and state speedy trial grounds. The federal and Texas constitutions both guarantee the

right to a speedy trial for all criminal defendants. See U.S. CONST. amend.VI, XIV; TEX. CONST.

art. 1, § 10; TEX. CODE CRIM. PROC. ANN. § 1.05 (West 2005). We analyze state and federal

speedy trial claims under the Barker balancing test and weigh the conduct of both the

prosecution and the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); Zamorano v. State,

84 S.W.3d 643, 647-48 (Tex. Crim. App. 2002). The Barker test weighs four non-exclusive

factors: 1) length of delay; 2) reason for delay; 3) defendant’s assertion of speedy trial right; and

4) resulting prejudice to defendant. Barker, 407 U.S. at 530; Cantu v. State, 253 S.W.3d 273, 280



                                                -3-
                                                                                      04-10-00412-CR


(Tex. Crim. App. 2008). Because no one factor is necessary or sufficient to find deprivation of

the right to speedy trial, we independently weigh and balance these factors along with other

relevant circumstances. Zamorano, 84 S.W.3d at 648. In reviewing the trial court’s ruling, we

review the court’s findings on the factual components of the speedy trial claim for abuse of

discretion and its resolution of the legal issues de novo. Id.; Cantu, 253 S.W.3d at 282. We

presume the trial court resolved any disputed fact issues in a manner supporting its ruling, and

defer to its implied findings of fact supported by the record. Cantu, 253 S.W.3d at 282.

       Length of Delay

       The length of delay between an initial charge and trial triggers a court’s consideration of

the other Barker factors if the extent of the delay is unreasonable enough to be presumptively

prejudicial to the defendant. Id. at 281; Zamorano, 84 S.W.3d at 648. No specific length of delay

automatically triggers the analysis, or constitutes a violation of the right to speedy trial. Barker,

407 U.S. at 527; Hull v. State, 699 S.W.2d 220, 221 (Tex. Crim. App. 1985). Delay sufficient for

presumptive prejudice thus depends on the particular circumstances of the case. Zamorano, 84

S.W.3d at 649. The right to speedy trial runs from the moment the defendant is accused. Phillips

v. State, 650 S.W.2d 396, 399 (Tex. Crim. App. 1983). Courts generally hold delays approaching

one year are presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 652 n.1 (1992);

Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). Once the accused proves that the

delay between accusation and trial crossed the threshold between “ordinary” and “presumptively

prejudicial,” a court must then weigh, among the other Barker factors, the extent to which the

delay “stretches beyond the bare minimum needed” to make it presumptively prejudicial.

Dragoo, 96 S.W.3d at 314 (quoting Doggett, 505 U.S. at 652).




                                                -4-
                                                                                      04-10-00412-CR


        Here, there was a twenty-five month delay between White’s indictment when he became

an “accused” and his trial, and a fifteen-month delay between his arrest and trial. The State

concedes the fifteen-month period from White’s arrest to trial suffices to warrant the full Barker

analysis. We agree that either period of delay is unreasonable enough to be presumptively

prejudicial, thereby triggering our consideration of the length of delay along with the other

Barker factors. See Cantu, 253 S.W.3d at 281 n.21 (noting that post-accusation delays of one

year or more have generally been found to be presumptively prejudicial).

        Reasons for Delay

        Once a defendant proves the delay is presumptively prejudicial, the burden shifts to the

State to justify the length of delay. Id. at 280. The State, not the defendant, has the duty to bring

the defendant to trial, and so it must prevent unreasonable delays. Id. at 282; Barker, 407 U.S. at

527. Courts assign different weights to different justifications based on their relative prejudice.

Id. at 531. Deliberate delays by the State in order to harm the defense weigh heavily against the

State, while neutral reasons for delay such as overcrowded court dockets weigh less heavily

against the State. Id.

        White cites the State’s lack of prosecution while he was in custody for outstanding traffic

tickets in Midland from June to December 2007, along with the State’s submission of his DNA

evidence for testing a mere two months before the May 3, 2010 trial, as evidence of the State’s

lack of justification for delaying his trial. However, since White was indicted for the burglary in

April 2008, his six-month incarceration in 2007 is not part of the speedy trial delay because

White was not yet accused of the burglary in 2007. In addition, White’s counsel never claimed

the State’s delays were deliberate, and neither party sought a continuance. Ultimately, the trial

court determined that clogged dockets were responsible for the delay. Undisputed, unintentional



                                                -5-
                                                                                       04-10-00412-CR


delays from “overcrowded courts” are weighed “less heavily” against the State than its own

deliberate delays. See Cantu, 253 S.W.3d at 279 n.7; Phillips, 650 S.W.2d at 400. As we defer to

the trial court’s findings of fact, and there is nothing in the record to the contrary, we conclude

the court did not abuse its discretion in finding that “clogged dockets” were accountable for the

delay. Delay due to an overcrowded court docket forms a neutral reason that weighs against the

State, but not heavily. See Cantu, 253 S.W.3d at 279 n.7.

       Defendant’s Assertion of his Speedy Trial Right

       The defendant has the burden of proving he diligently asserted his right to a speedy trial.

Id. at 280-81. White argues the motion to dismiss for lack of a speedy trial filed by his counsel

on October 12, 2009 served to alert the court to the excessive trial delay and to his desire for a

speedy trial, rather than simply for a dismissal of the charge against him. Whether and how a

defendant timely asserts his speedy trial right weighs heavily in determining whether he was

deprived of that right. Barker, 407 U.S. at 531-32. Failure to timely and persistently assert the

right increases the difficulty of proving a denial of speedy trial claim. Dragoo, 96 S.W.3d at 314.

A defendant’s expressed desire for dismissal rather than a speedy trial is relevant, and may

attenuate the strength of a speedy trial claim. Cantu, 253 S.W.3d at 283; Phillips, 650 S.W.2d at

401.

       White’s motion expressly requested dismissal of the indictment, not a quick trial setting.

His counsel filed no other requests for speedy trial during the period between October 2009 and

May 2010; further, counsel did not set the motion for a hearing. In fact, the motion was not heard

until six months later on the eve of trial. Moreover, at the pre-trial hearing on the day before trial,

White’s counsel agreed with the State’s characterization of his motion as one in which

“[White’s] objective here isn’t to have a speedy trial but it’s to have his case rejected.” Given



                                                 -6-
                                                                                                    04-10-00412-CR


that White first learned of the burglary charge upon his traffic arrest in February 2009, White

waited eight months before filing his motion to dismiss for lack of a speedy trial in October

2009. 1 Considering White’s lack of diligence in asserting the right to a speedy trial and in

bringing it to the court’s attention by setting it for a hearing before the eve of trial, along with the

motion’s express request for dismissal rather than a quick trial, we conclude this factor carries

only minimal weight in establishing a violation of White’s right to a speedy trial. See Dragoo, 96

S.W.3d at 314-15.

         Prejudice Resulting from the Delay

         Finally, the defendant bears the initial burden of proving he suffered prejudice from the

unreasonable trial delay. Cantu, 253 S.W.3d at 282. Prejudice is assessed in light of the interests

that the right to speedy trial protects against: 1) oppressive pretrial incarceration; 2) anxiety and

concern of the accused; and 3) the possibility that the defense will be impaired. Barker, 407 U.S.

at 532; Dragoo, 96 S.W.3d at 315. The last factor is the most serious as it affects the fairness of

the entire justice system. Barker, 407 U.S. at 532; Dragoo, 96 S.W.3d at 315. A defendant need

not make a showing of actual prejudice, only some showing of prejudice. State v. Munoz, 991

S.W.2d 818, 826 (Tex. Crim. App. 1999). If a “prima facie” showing of prejudice is made, the

burden shifts to the State to prove the accused suffered “no serious prejudice beyond that which

ensued from the ordinary and inevitable delay.” Id. (quoting Ex parte McKenzie, 491 S.W.2d

122, 123 (Tex. Crim. App. 1973)).



1
   As evidence of an earlier assertion of his speedy trial right, White cites us to his pro se motion for speedy trial
filed on May 20, 2009. However, White was represented by counsel at that time, and no defendant is entitled to
hybrid representation, i.e., representation partly by counsel and partly by himself. See Robinson v. State, 240 S.W.3d
919, 922 (Tex. Crim. App. 2007). A trial judge may therefore disregard a defendant’s pro se motions when he is
represented by counsel. Id.; Floyd v. State, 959 S.W.2d 706, 710 (Tex. App.—Fort Worth 1998, no pet.) (trial court
was not required to consider pro se motion for speedy trial when defendant was represented by counsel). White’s
pro se motion for speedy trial thus receives no weight as evidence of an earlier assertion of his speedy trial right.


                                                        -7-
                                                                                   04-10-00412-CR


       White claims he was prejudiced by the trial delay because he suffered anxiety and

concern due to family deaths and problems, as well as economic losses, during the period of

post-accusation delay and pre-trial confinement; he also asserts his defense was prejudiced by

the loss of potential punishment witnesses. As to the first factor concerning oppressive pretrial

incarceration, White testified he was jailed for fifteen months out of the twenty-five month delay

from indictment to trial. Impairment of a defendant’s liberty and its effects are the dispositive

considerations in analyzing oppressive pretrial incarceration. Munoz, 991 S.W.2d at 828. White

may thus have proven some oppressive pre-trial incarceration.

       Second, White asserts that he suffered anxiety and concern because of family events that

occurred during the twenty-five month post-accusation delay, specifically, the deaths of his

brother, mother, and two aunts, and his 15 year-old daughter’s pregnancy and drug use. At the

hearing, White conceded that his anxiety only began upon his arrest and confinement in February

2009, when he learned he had been indicted for burglary in April 2008. Evidence of generalized

anxiety which is no greater than the level of concern normally associated with a criminal charge

is not sufficient proof of prejudice under the Barker test. Cantu, 253 S.W.3d at 286. As to

White’s anxiety and concern caused by the deaths in his family and his daughter’s pregnancy and

drug use during the post-accusation delay, White did not prove he suffered heightened anxiety

from these events due to the delay or that the family events were in any way connected to his

pretrial incarceration during the delay. See id. In fact, White testified that, prior to his

incarceration, he was often absent from home because he commuted quarterly between Midland

and San Antonio for work.

       In addition, White relies on State v. Burckhardt in support of his claim that he suffered

anxiety from pecuniary losses during the period of delay, specifically the loss of a truck and



                                               -8-
                                                                                   04-10-00412-CR


painting contracts as well as potential foreclosure on his house. See State v. Burckhardt, 952

S.W.2d 100, 104 (Tex. App.—San Antonio 1997, no pet.). White correctly notes our finding of

pecuniary anxiety in Burckhardt, yet overlooks the detailed testimony in that case about the

particular contracts and dollar amounts lost. See id. Here, White offered no proof of any specific

pecuniary losses beyond his general testimony that he lost painting contracts and income because

he was incarcerated.

       Finally, White asserts the delay prejudiced his case because he could not call his

deceased relatives to testify on his behalf during the punishment phase of trial. When a

defendant’s speedy trial claim of prejudice depends on the current unavailability of witnesses, he

must establish not only that the witnesses are unavailable, but that their testimony would have

been material and relevant to his defense. See Harris v. State, 489 S.W.2d 303, 308 (Tex. Crim.

App. 1973); see also Marquez v. State, 165 S.W.3d 741, 750 (Tex. App.—San Antonio 2005,

pet. ref’d). White conceded that none of his deceased relatives had any personal knowledge of

the events underlying the burglary charge, thereby removing any materiality of their testimony

on the issue of guilt or innocence. At most then, the deceased relatives could have been character

witnesses for White during the punishment phase of his trial. White has failed to make a prima

facie showing that his ability to defend himself was impaired by the loss of this potential

punishment testimony. See Barker, 407 U.S. at 534.

       On this record, we must affirm the trial court’s finding that White failed to carry his

burden to make a showing of some prejudice as a result of the trial delay. While White presented

some evidence of oppressive pretrial incarceration for fifteen months, he failed to show that the

personal and pecuniary anxiety he suffered during the trial delay was beyond that inherent in a

criminal prosecution and corresponding pretrial incarceration. Finally, White failed to make a



                                               -9-
                                                                                      04-10-00412-CR


prima facie showing that his ability to defend himself against the burglary charge was impaired

by the trial delay, which is the most serious sub-factor in the Barker prejudice analysis.

Therefore, we conclude the prejudice factor of the Barker test weighs against White.

           Balancing of the Factors

           Weighing the four Barker factors, the length of delay was presumptively prejudicial and

excessive and weighs heavily against the State. However, there is no evidence of an intentional

delay or bad faith by the State, and the trial court found the delay was due to the court’s crowded

docket which constitutes a neutral reason for the delay; therefore, the second factor weighs

against the State, but not heavily. As to the third and fourth factors, White failed to show he

diligently asserted his right to a speedy trial and that he was prejudiced by the trial delay. We

conclude that the weight of the four Barker factors, when balanced together, is against finding a

violation of White’s right to a speedy trial. See Dragoo, 96 S.W.3d at 316. Therefore, the trial

court did not err in denying White’s motion to set aside the indictment for failure to afford a

speedy trial. We overrule White’s first issue.

           Sufficiency of the Evidence

           In his second issue, White complains that the evidence is insufficient to prove his intent

to commit aggravated assault by his exhibition of a deadly weapon during his entry of Araujo’s

residence; alternatively, White contends the evidence is insufficient to prove he “entered” the

residence. As the Texas Court of Criminal Appeals recently held there is no separate factual

sufficiency review, and we apply only the Jackson v. Virginia2 legal-sufficiency standard to

determine whether sufficient evidence exists on each element of the offense. Brooks v. State, 323

S.W.3d 893, 895 (Tex. Crim. App. 2010). We thus consider all the evidence in the light most

favorable to the judgment and ask whether any rational trier of fact could have found the
2
    Jackson v. Virginia, 443 U.S. 307, 319 (1979).

                                                     - 10 -
                                                                                      04-10-00412-CR


essential elements of the offense beyond a reasonable doubt. Id. We defer to the factfinder’s

credibility and weight determinations as the sole judge of the witnesses’ credibility and the

weight to be given to their testimony. Id. at 899.

       The elements of burglary of a habitation with intent to commit the felony of aggravated

assault require that (1) a person (2) without the effective consent of the owner (3) enters a

habitation (4) with intent to commit aggravated assault. TEX. PENAL CODE ANN. § 30.02(a)(1),

(d) (West 2011). Aggravated assault occurs when a person intentionally, knowingly, or

recklessly (1) causes serious bodily injury or (2) uses or exhibits a deadly weapon during

commission of the assault. Id. § 22.02(a) (West 2011). White argues that the only evidence that

ties him to a deadly weapon is Araujo’s testimony that White was holding a “metal object” when

he kicked in the front door; because Araujo was unable to give a more explicit description

beyond ruling out that the object was a firearm, White argues Araujo’s testimony fails to provide

a sufficient basis for connecting White to the bloody, broken garden hoe found in the yard at

White’s trailer—the purported deadly weapon.

       As the fact finder, the trial judge heard not only Araujo’s testimony regarding White’s

exhibition of a “round,” “metal object” that “[White] was going to hit me with” as he kicked in

the door, but also Araujo’s statement that he heard White using a “heavy metal object” to “[hit]

the outside of the trailer all the way around” while threatening to “get” Araujo. Further, Araujo

testified he was “scared” that White “was going to finish me off,” and that White was “going to

try to beat [him] up” with the object he saw White carrying. The bloodied garden hoe recovered

from White’s yard was admitted into evidence, as well as photos and samples of White’s blood

trail from Araujo’s trailer to White’s trailer. Finally, Officer Reygadas testified that both ends of

the hoe were lethal, in that they could easily cause serious blunt force trauma and lacerations



                                                - 11 -
                                                                                       04-10-00412-CR


requiring emergency care. Deferring to the trial judge’s credibility and weight assessments, we

hold a rational trier of fact could find beyond a reasonable doubt that White exhibited a deadly

weapon in the course of entering Araujo’s trailer.

       White also argues that, while some blood drops were found on the doorframe itself, there

is no evidence he committed an “entry” sufficient to constitute burglary of a habitation because

no blood was found beyond the doorframe. In Texas, an “entry” occurs if any part of the body or

any physical object connected with the body intrudes into a habitation. TEX. PENAL CODE ANN.

§ 30.02(b) (West 2011); Ortega v. State, 626 S.W.2d 746, 747 (Tex. Crim. App. 1981). Viewed

in the light most favorable to the judgment, the evidence is sufficient to establish an entry. On

direct examination, Araujo testified twice that, upon kicking open his door, White “stepped in”

the trailer with his foot sufficiently to be “inside” before Araujo stabbed him with the spear. On

cross-examination, Araujo maintained that the second fight with White occurred in Araujo’s

trailer rather than in his front yard. Further, Officer Terrill testified that the blood’s location on

the door’s threshold qualified as being on the interior of the home:

       Q: ….[T]he blood that you described as on the threshold, could blood get on that
       part of the door without having being (sic) kicked in or opened?

       A: I wouldn’t think so, ma’am.

       Q: Okay. So that’s in the inside of the home?

       A: Correct.

       Q: Because you can’t get blood on that part of the frame, stoop, jam, whatever
       you want to call it, without it being opened?

       A: Yes, ma’am. The door is open and the blood was inside a few inches.




                                                - 12 -
                                                                                                       04-10-00412-CR


Based on this evidence, a rational trier of fact could find beyond a reasonable doubt that part of

White’s body intruded sufficiently far inside Araujo’s trailer to constitute an “entry” within the

meaning of Penal Code section 30.02(b). We overrule White’s second issue.

         Based on the foregoing reasons, we affirm the trial court’s judgment. 3



                                                            Phylis J. Speedlin, Justice

DO NOT PUBLISH




3
  A clerical error is apparent from the face of the judgment in that it states that White entered into a plea bargain for
eight years and a $1500 fine; in fact, the record is clear that White pled “not guilty,” and was convicted after a bench
trial and sentenced to eight years’ imprisonment and a $1500 fine. Accordingly, we modify the judgment to delete
any reference to a plea bargain and to reflect that White’s conviction followed a bench trial. TEX. R. APP. P. 43.2(b).

                                                         - 13 -
