                                   NO. 07-06-0352-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   MAY 31, 2007
                          ______________________________

                                ROBERTO RODRIQUEZ,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                NO. 15,828-C; HON. RICHARD DAMBOLD, PRESIDING
                        _______________________________

                                     Opinion
                         _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Roberto Rodriquez was convicted of the aggravated sexual assault of a child and

sentenced to life in prison. In contending that the conviction should be reversed, he argues

that 1) he was denied his right to a speedy trial, 2) he was subjected to ex post facto

legislation by the use of a prior suspended sentence in New Mexico to enhance his

punishment, and 3) the jury should have determined whether his prior New Mexico
conviction was substantially similar to one of the offenses enumerated in §12.42(c)(2)(B)

of the Penal Code. We affirm.

       Issue 1 - Speedy Trial

       Regarding the matter of a speedy trial, appellant claims he was denied this right.

Such a right is guaranteed by both the federal and state constitutions. Furthermore, when

it is abridged, the prosecution must be dismissed with prejudice. Shaw v. State, 117

S.W.3d 883, 888 (Tex. Crim. App. 2003); see also Hull v. State, 699 S.W.2d 220, 224

(Tex. Crim. App. 1985).

       Next, in determining whether a constitutional violation has occurred, the trial court

balances factors such as 1) the length of the delay, 2) the reason for delay, 3) the

defendant’s assertion of his speedy trial right, and 4) any prejudice resulting to him from

the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116

(1972). No single factor is necessary or sufficient, however. Dragoo v. State, 96 S.W.3d

308, 313 (Tex. Crim. App. 2003). And, as long as the ruling is supported by the record and

law, we cannot change it. Shaw v. State, 117 S.W.3d at 889.

       As for the length of delay, we note authority holding that one spanning a year is

sufficient to trigger a speedy trial inquiry. Id. Here, appellant was arrested in January 2004

and not tried until August 2006. Thus, an interval of approximately 32 months lapsed

between the two dates. Because the period “stretched far beyond the minimum needed

to trigger the inquiry . . . this factor weighs heavily in favor of finding a violation of

appellant’s right to speedy trial.” Id. (involving a 38-month period).




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       With respect to the reason for the delay, neither party could provide an explanation

for it. And, while the record shows that the original trial date of April 5, 2005, was passed

due to appellant requesting a continuance, little was proffered to show why the matter was

not set again until August 22, 2006. Given the lack of an explanation, a “court may

presume neither a deliberate attempt on the part of the State to prejudice the defense nor

a valid reason for the delay.” Dragoo v. State, 96 S.W.3d at 314. Nonetheless, in such

situations, the factor weighs against the State but not heavily. Id.

       Next, the record discloses that appellant formally said nothing about his right to a

speedy trial until a month before his trial convened. And, when he broached it, he did so

by asking for a dismissal. Such delay in asserting the right makes it difficult for him to

prevail. Shaw v. State, 117 S.W.3d at 890. This is so because it “indicates strongly that

he did not really want one [a speedy trial] and that he was not prejudiced by not having

one.” Id. Indeed, the longer the silence, the more likely it is that a defendant who wanted

a speedy trial would have acted to obtain one. Id. So, appellant’s 32-month silence not

only strikes heavily against him, it also extenuates any presumption of prejudice to which

he may have been entitled. See id. (stating that a defendant’s inaction extenuates a

presumption of prejudice).

       The chance of prejudice further diminishes since we are cited to no evidence

suggesting that the delay somehow denied appellant of evidence or witnesses to use in his

defense. Nor can it be said that appellant fell victim to oppressive pretrial incarceration due

to any delay since he was released from jail on bond shortly after his arrest. And while he

did testify that he had felt stressed while awaiting trial, he did not provide any specific



                                              3
information depicting any unusual anxiety or concern, i.e. “any anxiety or concern beyond

the level normally associated with being charged with a felony sexual crime.” Shaw v.

State, 117 S.W.3d at 890; compare Zamorano v. State, 84 S.W.3d 643, 654 (Tex. Crim.

App. 2002) (in which the defendant day laborer testified he had lost money and suffered

as a result of the requirement to report weekly to the bonding company).           So, on the

record before it, the trial court could have reasonably concluded that appellant failed to

demonstrate actual prejudice.

       As can be seen, only the first two factors appear to weigh against the State, and one

of the two is not that weighty. On the other hand, the trial court had basis to conclude that

the keys to his speedy trial lay in the hands of appellant in large part, and, by withholding

complaint until the eve of trial, the balance of the factors strikes against him. Thus, we

overrule the issue since we cannot say that the decision rendered on the matter lacked

evidentiary support or failed to comport with the law. See Shaw v. State, supra (unjustified

38-month delay without objection by defendant until the eve of trial held not to have denied

him a speedy trial); Dragoo v. State, supra (a 3 ½-year unjustified delay without objection

until the eve of trial held not to have violated defendant’s right to a speedy trial).

       Issues 2 and 3 - New Mexico Conviction

       Appellant’s other two issues concern a previous New Mexico conviction used to

enhance his punishment. The conviction arose in 1980 and involved criminal sexual

penetration. The State’s use of it to enhance the punishment accompanying his current

conviction allegedly violated constitutional ex post facto prohibitions. Moreover, in denying

the jury opportunity to decide whether the New Mexico offense was substantially similar to



                                              4
various statutory crimes mandating a life sentence, the trial purportedly erred. We overrule

each issue.

          One convicted of aggravated sexual assault must be imprisoned for life if he was

previously convicted of the same crime or others listed in §12.42(c)(2)(B) of the Texas

Penal Code. TEX . PEN . CODE ANN . §12.42(c)(2) (Vernon Supp. 2006). Furthermore, the

prior conviction may be that issuing from another state so long as the elements of the

crime underlying that conviction are substantially similar to aggravated sexual assault or

the other various crimes itemized under §12.42(c)(2)(B). Id. §12.42(c)(2)(B)(v). Whether

they are substantially similar is a question of law involving the interpretation of the

respective statutes. See Hardy v. State, 187 S.W.3d 232, 236 (Tex. App.–Texarkana

2006, pet. ref’d) (wherein the court compared the two statutes to determine their similarity

after noting that the interpretation of a statute was a question of law); accord, Ex parte

White, 211 S.W.3d 316, 318 (Tex. Crim. App. 2007) (wherein the Court of Criminal

Appeals determined whether the two statutes were substantially similar). And, being a

question of law, the matter need not be submitted to a jury for resolution. Id. Thus, the

trial court at bar did not err in deciding the matter itself as opposed to allowing the jury to

do it.1

          As for the dispute about whether use of the New Mexico conviction transgressed ex

post facto prohibitions, we conclude that it did not and does not. This is so due to the

wording of the New Mexico statute upon which appellant relies. According to the proviso,



          1
          Appellant does not suggest that the New Mexico statute underlying his prior conviction was dissim ilar
to the crim es item ized in §12.42(c)(2)(B). So we do not address the sim ilarity between the elem ents of the
various crim es.

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completing probation means that the accused satisfied his criminal liability and authorizes

him to apply for a pardon from the governor to regain his full rights of citizenship. N.M.

STAT . ANN . §31-20-8 (1978). Yet, nowhere does it state that the conviction cannot be later

used for enhancement purposes. And, that fact distinguishes the circumstances before

us from those in Scott v. State, 55 S.W.3d 593 (Tex. Crim. App. 2001). The latter dealt

with the extent one’s deferred adjudication could be used to enhance the punishment

applicable to a crime he later committed. When Scott was placed on deferred adjudication,

statute dictated that the completion of his probation did not result in a conviction

susceptible to use for enhancement purposes; so, a change in the law that later allowed

its use implicated ex post facto considerations according to the Court of Criminal Appeals.

Id. at 597-98. But, when no such express limitation appears in the statute, ex post facto

considerations are not implicated. Ex parte White, 211 S.W.3d at 320. There being no

such limitations in the New Mexico statute cited by appellant, ex post facto restrictions were

not violated when appellant’s New Mexico conviction was used for enhancement purposes

here.

        Having overruled each issue, we affirm the trial court’s judgment



                                                  Brian Quinn
                                                  Chief Justice



Publish.




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