TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00296-CR
v.
The State of Texas, Appellee
NOS. 466,166 & 480,320, HONORABLE DAVID CRAIN, JUDGE PRESIDING
Appellant contends he was denied a speedy trial in the assault case. Appellant relies in part on the terms of the Speedy Trial Act to support this contention. See Tex. Code Crim. Proc. Ann. art. 32A.02 (West 1989). This reliance is misplaced. The act was declared unconstitutional in Meshell v. State, 739 S.W.2d 246, 255-58 (Tex. Crim. App. 1987). We also understand appellant to assert a violation of his constitutional right to a speedy trial. See Barker v. Wingo, 407 U.S. 514 (1972); Hull v. State, 699 S.W.2d 220, 221 (Tex. Crim. App. 1986); U.S. const. amends VI, XIV; Tex. Const. art. I, § 10. Appellate review of this issue is conducted de novo. Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App. 1997). We must balance four factors: length of the delay, reason for the delay, assertion of the right, and prejudice to the accused. Barker, 407 U.S. at 530; Johnson, 954 S.W.2d at 771.
Appellant was arrested in October 1996 after assaulting his wife at their home. The cause was set for trial in February 1997, but the trial was postponed when appellant refused to consent to an amendment of the information on that date. At this time, appellant was released on personal bond. Appellant was rearrested in June 1997 after violating the terms of the restraining order obtained by his wife. At a hearing in August 1997, appellant was again released on personal bond. At this hearing, the court was told that appellant, who by this time was representing himself with standby counsel, requested at least six months to prepare for trial. Appellant was tried for both offenses in April 1998.
Approximately nineteen months elapsed between appellant's arrest for the assault and his trial. Although requests for a speedy trial were among the many pro se pretrial motions filed by appellant, the record reflects that appellant in fact sought to delay his trial. Appellant objected to the amendment of the information in February 1997 as a means of delaying trial. Appellant told the court, "[I[f I can keep that [trial] off, I'd like to keep that off. But I would also like to be released to be able to gather information that would help my defense." In August 1997, appellant asked for an additional six months to prepare for trial. Thus, it appears that much of the delay of which appellant now complains was at his request or with his consent. Finally, there is no showing of significant prejudice to appellant resulting from the delay. Appellant was free on bond for much of the time, and there is no evidence that appellant's ability to present a defense was impaired. Balancing these factors, we conclude that appellant's constitutional right to a speedy trial was not violated. Point of error one in cause number 3-98-295-CR is overruled.
Appellant next contends that his prosecution for violating the protective order was a denial of the Texas Constitution's guarantee of equal rights under the law. Tex. Const. art. I, §§ 3 (equal rights), 3a (equality under the law). Appellant complains that his wife violated the terms of the protective order by contacting and visiting him, but that only he was prosecuted. The protective order, however, was directed against appellant, not his wife. Whatever wrongs appellant may believe his wife committed against him, his prosecution for the undisputed violation of the protective order did not deny him equal rights under the laws. Point of error one in cause number 3-98-296-CR is overruled.
The remaining points of error are identical in both causes. By point of error two, appellant complains the prosecutor made misleading, inflammatory statements during jury argument that were outside the record. This contention was not preserved for review because appellant did not object. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Najera v. State, 955 S.W.2d 698, 702 (Tex. App.--Austin 1997, no pet.). In the same point of error, appellant also complains of testimony by a police officer that wearing a wedding band sixteen months after a divorce, as appellant was shown to do, was in his experience consistent with "stalking." Appellant voiced no specific objection to this testimony, and no error was preserved. Tex. R. App. P. 33.1(a). Point of error two in each cause is overruled.
Appellant's last point of error is that three photographs of his wife showing the injuries inflicted during the assault were erroneously admitted because they "were not what they were purported to be" and because they were not shown to the defense prior to trial. The first contention, for which appellant cites Texas Rules of Evidence 1002 and 1004, was not presented to the trial court and thus was not preserved for review. As to the second contention, appellant argues that the State's failure to disclose the photographs prior to trial violated his discovery motions. While appellant did file such motions, there is no record that any of them were granted by the court. A defendant has no general right to discover evidence in the possession of the State. Brown v. State, 657 S.W.2d 117, 119 (Tex. Crim. App. 1983). There is no showing that disclosure of the photographs would have benefitted the defense. See Crane v. State, 786 S.W.2d 338, 348-49 (Tex. Crim. App. 1990); Quinones v. State, 592 S.W.2d 933, 941 (Tex. Crim. App. 1980). Point of error three in each cause is overruled.
The judgments of conviction are affirmed.
Lee Yeakel, Justice
Before Justices Jones, B. A. Smith and Yeakel
Affirmed
Filed: February 25, 1999
Do Not Publish
er assaulting his wife at their home. The cause was set for trial in February 1997, but the trial was postponed when appellant refused to consent to an amendment of the information on that date. At this time, appellant was released on personal bond. Appellant was rearrested in June 1997 after violating the terms of the restraining order obtained by his wife. At a hearing in August 1997, appellant was again released on personal bond. At this hearing, the court was told that appellant, who by this time was representing himself with standby counsel, requested at least six months to prepare for trial. Appellant was tried for both offenses in April 1998.
Approximately nineteen months elapsed between appellant's arrest for the assault and his trial. Although requests for a speedy trial were among the many pro se pretrial motions filed by appellant, the record reflects that appellant in fact sought to delay his trial. Appellant objected to the amendment of the information in February 1997 as a means of delaying trial. Appellant told the court, "[I[f I can keep that [trial] off, I'd like to keep that off. But I would also like to be released to be able to gather information that would help my defense." In August 1997, appellant asked for an additional six months to prepare for trial. Thus, it appears that much of the delay of which appellant now complains was at his request or with his consent. Finally, there is no showing of significant prejudice to appellant resulting from the delay. Appellant was free on bond for much of the time, and there is no evidence that appellant's ability to present a defense was impaired. Balancing these factors, we conclude that appellant's constitutional right to a speedy trial was not violated. Point of error one in cause number 3-98-295-CR is overruled.
Appellant next contends th