                                             OPINION
                                        No. 04-10-00531-CR

                                      Peter Frederick WISSER,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 1983CR2991
                         Honorable Catherine Torres-Stahl, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: May 4, 2011

AFFIRMED

           Appellant, Peter Frederick Wisser, appeals from the trial court’s order revoking his

probation and sentencing him to eight years’ confinement. We affirm.

                                          BACKGROUND

           In 1984, a Bexar County jury convicted appellant of burglary of a habitation with intent

to commit rape and assessed a $10,000 fine and ten years’ confinement. Upon the jury’s

recommendation, the trial court suspended appellant’s sentence and assessed ten years’
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probation, during which appellant would be permitted to reside in Dallas County and report to a

Dallas County probation officer. In 1986, after appellant failed to meet the requirements of his

probation, a Bexar County court issued a capias warrant for his arrest.

       Texas authorities were unable to locate appellant for twenty years. On April 18, 2006,

authorities found appellant in Idaho, where he was incarcerated for felony misappropriation of

personal identifying information. On April 19, 2010, when appellant completed his sentence in

Idaho, Texas authorities arrested and returned him to Bexar County.

       On July 9, 2010, a Bexar County court held a probation revocation hearing. At the

beginning of the hearing, appellant made a speedy trial objection and claimed the State unfairly

waited four years after finding him in prison in Idaho to commence the probation revocation

hearing. The trial court entertained brief arguments on the issue and overruled appellant’s

objection. During the hearing, appellant’s Dallas County probation officer did not testify, but a

Bexar County probation officer testified to the contents of appellant’s probationary records,

which were admitted into evidence. Appellant objected to the testimony and to admission of the

records on the ground that the probationary records were testimonial and presentation of the

records by someone other than the Dallas County probation officer violated appellant’s rights

under the Confrontation Clause of the Sixth Amendment.           The court overruled appellant’s

objections.   At the conclusion of the hearing, the court found appellant failed to make

supervisory fee and fine payments as required under the terms of his probation. The court

revoked appellant’s probation and sentenced him to eight years’ confinement.

                              CRAWFORD/CONFRONTATION

       In his first and third issues, appellant argues the contents of his probationary records were

testimonial in nature; therefore, because he was not able to confront and cross-examine his



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Dallas County probation officer at the probation revocation hearing, he contends admission of

the records violated his rights under the Confrontation Clause of the Sixth Amendment as

enunciated in Crawford v. Washington, 541 U.S. 36 (2004). Also, appellant argues the Bexar

County probation officer should not have been permitted to testify to the contents of the

probationary records because the records are testimonial.

       In Crawford, the U.S. Supreme Court held that out-of-court statements that are

“testimonial” in nature are barred by the Confrontation Clause of the Sixth Amendment unless

(1) the out-of-court declarant is unavailable to testify, and (2) the defendant had a prior

opportunity to cross-examine the out-of-court declarant. Id. at 53–54. In Diaz, a panel of this

court reviewed the applicability of Crawford and the Confrontation Clause of the Sixth

Amendment to probation revocation hearings as a matter of first impression. Diaz v. State, 172

S.W.3d 668, 669 (Tex. App.—San Antonio 2005, no pet.). We held that Crawford does not

apply to probation revocation proceedings for the following reasons. Id. at 670; see also Mauro

v. State, 235 S.W.3d 374, 376 (Tex. App.—Eastland 2007, pet. ref’d) (holding same); Trevino v.

State, 218 S.W.3d 234, 239 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding same);

Smart v. State, 153 S.W.3d 118, 121 (Tex. App.—Beaumont 2005, pet. ref’d) (holding same).

       The Confrontation Clause of the Sixth Amendment explicitly applies to “criminal

prosecutions.” U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him . . . .” (emphasis added)). In

Morrissey, the United States Supreme Court held “the revocation of parole is not part of a

criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding

does not apply to parole revocations.” Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (emphasis

added); see also Hill v. State, 480 S.W.2d 200, 202–03 (Tex. Crim. App. 1971) (“A probation



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revocation hearing is not an adversarial proceeding, a civil action, or a criminal prosecution . . .

instead, it is administrative in nature, a means of protecting society and rehabilitating

lawbreakers.” (internal citations omitted)). The Morrissey Court explained:

    Parole arises after the end of the criminal prosecution, including imposition of sentence.
    Supervision is not directly by the court but by an administrative agency, which is
    sometimes an arm of the court and sometimes of the executive. Revocation deprives an
    individual, not of the absolute liberty to which every citizen is entitled, but only of the
    conditional liberty properly dependent on observance of special parole restrictions.

Morrissey, 408 U.S. at 480. Therefore, because probation revocation is not a stage of a criminal

prosecution, Crawford does not apply. Diaz, 172 S.W.3d at 670. Accordingly, we overrule

appellant’s first and third issues.

                                        SPEEDY TRIAL

        In his second issue, appellant complains he was denied the right to a speedy trial because

the State waited four years after locating him in prison in Idaho before prosecuting the motion to

revoke his probation. In response, the State argues—for the same reasons discussed above—that

the Sixth Amendment right to a speedy trial does not apply to appellant’s probation revocation

hearing. However, both the Court of Criminal Appeals and the Texas Supreme Court have held

that the Sixth Amendment and the Texas Constitution guarantee the right to a speedy trial in

probation revocation hearings. Carney v. State, 573 S.W.2d 24, 26 (Tex. Crim. App. 1978) (en

banc); Fariss v. Tipps, 463 S.W.2d 176, 178 (Tex. 1971) (original proceeding). In Fariss, a

prisoner in Virginia sought a writ of mandamus to compel a Texas court to make a speedy

disposition of his Texas probation revocation hearing. Fariss, 463 S.W.2d at 178. The Texas

Supreme Court acknowledged the Court of Criminal Appeals decisions holding that probation

revocation hearings are not the type of “criminal prosecutions” in which a defendant would be

entitled to a Sixth Amendment-guaranteed impartial jury and stated, “[W]e may assume that



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those cases are correctly decided.” Id. (citing Hood v. State, 458 S.W.2d 662 (Tex Crim. App.

1970); Wilson v. State, 240 S.W.2d 774 (1951)). However, the Court then stated, “The Court of

Criminal Appeals definitely has Not held, however, that a defendant does not have a right to a

public trial or a speedy trial in a probation revocation proceeding; and, the question being an

open one, we should not hesitate to hold that these rights may be demanded in such a

proceeding.” Id. (emphasis in original). Since the Fariss decision, the Court of Criminal

Appeals has repeatedly held probationers are entitled to a speedy probation revocation hearing.

Carney, 573 S.W.2d at 26; Ross v. State, 523 S.W.2d 402, 404 (Tex. Crim. App. 1975); McClure

v. State, 496 S.W.2d 588, 589 (Tex. Crim. App. 1973); Hilts v. State, 476 S.W.2d 283, 284 (Tex.

Crim. App. 1972); see also Cavazos v. State, No. 04-98-01054-CR, 2000 WL 124911, at *2

(Tex. App.—San Antonio Feb. 2, 2000, no pet.) (applying speedy trial analysis to probation

revocation hearing).

       We note the difference in the post-Fariss decisions, which apply the Sixth Amendment

speedy trial right to probation revocation hearings, with the line of Crawford/Confrontation

Clause cases, which hold the Sixth Amendment right to confront and cross-examine does not

apply to probation revocation hearings because such hearings are not “criminal prosecutions”

subject to the Sixth Amendment.        However, the post-Fariss decisions make it clear that

probationers are entitled to a speedy probation revocation hearing under both the Sixth

Amendment and the Texas Constitution. Therefore, in light of the decisions of the higher courts

of this state, we must conclude the Sixth Amendment right to speedy trial applies to appellant’s

probation revocation hearing, and we turn to a speedy trial analysis.

       To determine whether appellant was denied a speedy trial, we apply the Barker balancing

test, which requires consideration of the following non-exclusive factors: (1) the length of the



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delay; (2) the reason for the delay; (3) the defendant’s assertion of the right; and (4) the prejudice

to the defendant resulting from the delay. Carney, 573 S.W.2d at 26–27 (citing Barker v. Wingo,

407 U.S. 514, 530 (1972)); see also Cantu v. State, 253 S.W.3d 273, 280 n.16 (Tex. Crim. App.

2008) (although right to speedy trial under Texas Constitution exists independently of Sixth

Amendment guarantee, both claims are analyzed using Barker factors). Once the Barker test is

triggered, we analyze the speedy trial claim by weighing the strength of the factors and balancing

them in light of the parties’ conduct. Cantu, 253 S.W.3d at 281. In doing so, we review the trial

court’s implicit fact findings for abuse of discretion, and we review legal findings de novo. Id. at

282.

   A. Length of the Delay

       Both appellant and the State agree there was a four-year delay between the time Texas

authorities found appellant in custody in Idaho and the date of the probation revocation hearing

in Bexar County. Because four years is an unusually lengthy delay in a probation revocation

case, the Barker analysis is triggered.

   B. Reason for the Delay

       The only reason for the delay was appellant’s incarceration in Idaho, and Texas

authorities immediately returned appellant to Bexar County following his release. Because

appellant’s incarceration was a valid reason for the delay, we do not weigh this factor against the

State at all. See State v. Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999) (en banc) (a valid

reason for delay is not weighed against the State).

   C. Timeliness of Asserted Claim

       A defendant is responsible for asserting his right to a speedy trial, but failure to do so

does not waive his right and is not necessarily dispositive of his speedy trial claim. Id. at 825.



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Under a Barker analysis, a defendant’s failure to assert his right to a speedy trial will only make

it more difficult to prove that he was denied a speedy trial. Id.; see also Dragoo v. State, 96

S.W.3d 308, 314–15 (Tex. Crim. App. 2003) (defendant “quietly acquiesced” to delay of three

and one-half years by failing to assert speedy trial right until day before trial). In this case,

appellant did not assert his right to a speedy trial until the probation revocation hearing

commenced. Therefore, this factor weighs against appellant.

   D. Prejudice

       Prejudice to a defendant is assessed in light of the following interests: “(1) preventing

oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3)

limiting the possibility that the defense will be impaired.” Munoz, 991 S.W.2d at 826. Here,

appellant offered no evidence of prejudice when he first raised his speedy trial claim during the

probation revocation hearing, and he makes no argument regarding prejudice on appeal.

Because there is no evidence appellant was prejudiced by the delay, we conclude the fourth

factor weighs against finding a speedy trial violation.

       On balance, we conclude appellant’s right to a speedy probation revocation hearing was

not violated.

                                         CONCLUSION

       We overrule appellant’s issues on appeal and affirm the trial court’s order.


                                                  Sandee Bryan Marion, Justice

PUBLISH




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