COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
| RAUL ESCAJEDA,
Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-07-00145-CR Appeal from the 210th Judicial District Court of El Paso County, Texas (TC#20060D02106) |
MEMORANDUM OPINION
Raul Escajeda appeals his conviction for indecency with a child, sexual contact. See Tex.Pen.Code Ann. § 21.11(a)(1)(Vernon 2003). Appellant pled guilty to the offense, as alleged in the indictment, and the trial court imposed a sentence of 20 years' imprisonment. Appellant's appointed counsel, who represented Appellant at trial and now represents Appellant on appeal, has filed a brief in which he concludes that the appeal is frivolous and without merit. In his brief, appellate counsel states that he has studied the record and has found no error preserved for appeal that could serve as grounds for reversible error. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493, reh. denied, 388 U.S. 924, 87 S. Ct. 2094, 18 L. Ed. 2d 1377 (1967), by presenting a professional evaluation of the record, and demonstrating why, in effect, there are no arguable grounds to be advanced. (1) See High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). Appellate counsel, however, proposed one arguable issue in the brief.
BACKGROUND
The arguable issue presented in counsel's brief is whether the trial court erred in denying Appellant's motion to dismiss because he was denied his right to a speedy trial.
Appellant was indicted on May 3, 2006, by a grand jury. Appellant was accused of sexually assaulting a minor in May of 1993 and again on January 1, 2000. (2) On January 9, 2007, Appellant filed a motion to dismiss both cases arguing he had been denied his right to a speedy trial. Appellant's motion focused on the length of time between the dates of the alleged offenses, and the date of his arrest. During the hearing, the prosecutor informed the trial court that the offenses were not reported until April 2005. (3) The trial court denied the motion at the hearing's close. Appellant entered a guilty plea in open court on May 4, 2007. Appellant was sentenced in open court on May 7, 2007. The trial court signed and entered its judgment on May 15, 2007.
ANALYSIS
In determining whether an accused has been denied his right to a speedy trial, a court must utilize the balancing test articulated in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972). See Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). The conduct of both the prosecution and the defendant are weighed. Dragoo, 96 S.W.3d at 313. Generally, the Barker balancing test includes analysis of four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his speedy trial right; and (4) the prejudice to the defendant resulting from the delay. Id. Factor number one, the length of the delay, acts as a triggering mechanism. Id. That is, a speedy trial claim will not be heard until the passage of an amount of time which is, on its fact, unreasonable under the circumstances. Id. The length of time is measured from the time the defendant is arrested or formally accused. Id. As a general rule courts consider a delay approaching one year, "unreasonable enough to trigger the Baker inquiry." Id. at 314, quoting Dogget v. U.S., 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 2691, 120 L. Ed. 2d 520 (1992).
As we have discussed above, Appellant was formally accused by indictment, on May 3, 2006. Less than one year later, Appellant was convicted and sentenced for the offense as charged in the indictment. This period of time is insufficient to "trigger" the remainder of the balancing factors. See Dragoo, 96 S.W.3d at 314. Therefore, the trial court did not err in denying Appellant's motion to dismiss. Issue One is overruled.
In addition, we have carefully reviewed the entire record, including counsel's brief, and agree that the appeal is wholly frivolous and without merit. Further, we find nothing in the record that may arguably support the appeal. We affirm the trial court's judgment.
March 6, 2008
DAVID WELLINGTON CHEW, Chief Justice
Before Chew, C.J., McClure, and Carr, JJ.
(Do Not Publish)
1. A copy of counsel's brief has been delivered to Appellant, informing him of his right to file a brief pro se. Appellant has not done so.
2. The January 2000 offense is the subject of a companion case to this appeal. See Escajeda v. State, 08-07-00146-CR (Tex.App.--El Paso March 6, 2008, no pet.h.).
3. Appellant did not object, or dispute this statement in any way during the hearing.