Alaine Denise Vorheier v. State

NUMBER 13-09-00169-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ALAINE DENISE VORHEIER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 25th District Court
of Guadalupe County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Vela
Memorandum Opinion by Justice Vela

A jury convicted appellant, Alaine Denise Vorheier, of four counts of sexual assault

of a child, see TEX . PENAL CODE ANN . § 22.011(a)(2)(C) (Vernon Supp. 2009), three counts

of indecency with a child by contact, see id. § 21.11(a)(1), and one count of prohibited

sexual conduct. See id. § 25.02(a)(2). The jury assessed punishment at eighteen years’
imprisonment for each count of sexual assault of a child and for each count of indecency

with a child by contact and ten years’ imprisonment for the offense of prohibited sexual

contact. The sentences were ordered to run concurrently. In six issues, appellant

complains that: (1) the evidence is legally and factually insufficient to support her

convictions; (2) she was denied the right to a speedy trial; and (3) this Court does not have

jurisdiction of this appeal. We affirm.1

I. FACTUAL BACKGROUND

A. State’s Evidence

When J.V. was five or six years old, his parents divorced, and he began living in

Converse, Bexar County, Texas with his biological father, who subsequently married

appellant. J.V. testified that from the age of six to the time he was thirteen, his relationship

with appellant was “just like any other mother and son.” However, when J.V. was thirteen

years old, the relationship became sexual. In December 2003, J.V. and appellant were at

home while J.V.’s father attended a Christmas party. While J.V. was in his room, appellant

came in and wanted J.V. to kiss her in the same way he kissed his girlfriend. When he

refused to kiss appellant, she started rubbing his penis through his clothing. He moved her

hand and told her that if she did not leave him alone, he would tell his father. After hearing

this, appellant left the room. J.V. testified that “it happened again” several times which

made it a “fairly regular thing.” J.V. also testified that appellant would masturbate him to

the “point of orgasm” and that a couple of months after the first incidence in his bedroom,

1
This appeal was transferred to this Court from the Fourth Court of Appeals by order of the Texas
Suprem e Court. See T EX . G O V ’T C OD E A N N . § 22.220 (Vernon 2004) (delineating the jurisdiction of appellate
courts); T EX . G O V ’T C OD E A N N . § 73.001 (Vernon 2005) (granting the suprem e court the authority to transfer
cases from one court of appeals to another at any tim e that there is “good cause” for the transfer).
2
the “activity” advanced “to sex,” meaning his “male sex organ” would go into appellant’s

“female sex organ.” J.V. and appellant first had sexual intercourse when he was fourteen

years old and living in Converse, Texas. When the family moved to Cibolo, Guadalupe

County, Texas, J.V. was fourteen years old, and he and appellant continued to have sex

“once or twice a week.”

Between July 2004 and May 2006, appellant touched J.V.’s genitals on at least five

occasions and engaged in sexual intercourse with him on at least six occasions in Cibolo,

Guadalupe County, Texas. About May 2005, appellant became pregnant with J.V.’s child.

Appellant gave birth to J.V.’s child on February 5, 2006, while J.V. was living in Cibolo.

J.V. moved out of Cibolo and out of Guadalupe County, in July 2006.

With regard to what happened in Cibolo, J.V. testified as follows:

Prosecutor: Would all the—you said sexual contact continued there.
What kind of sexual contact did you have in Cibolo?

J.V.: The same that was in Converse, intimate or intercourse.

Prosecutor: Were there also times that—that she [appellant] would—to use
your terminology, engage in other types of contact, such as
masturbation or anything like that?

J.V.: Yes.

Prosecutor: Was this on a fairly regular basis?

J.V.: Yes, it was.

Prosecutor: How often could you say it happened?

J.V.: Once or twice a week.

....

Prosecutor: Let me ask you this: The periods between July of 2004, and
May of 2006, did [appellant] touch your genitals on at least two

3
 occasions, two—excuse me, three, four, five occasions?

J.V.: Yes.

Prosecutor: And during this time did you engage in sexual intercourse with
[appellant] on at least six occasions?

J.V.: Yes.

Prosecutor: And these were all in Cibolo, Guadalupe County, Texas?

J.V.: Yes.

Prosecutor: And you are the stepchild of the [appellant], correct?

J.V.: Correct.

J.V. further testified that he had sexual intercourse with appellant “on as many as

six occasions,” and it also occurred “while she was pregnant with J.V.’s child and after she

had the baby.” J.V. stated that on at least six occasions, appellant fondled and touched

his penis “in a manner to arouse or gratify her sexual desire.”

On April 23, 2008, J.V. went to the Cibolo Police Department and spoke to a

detective. J.V. filled out an affidavit “withdrawing” the charges that were made against

appellant, trying to essentially “get this case dropped.” J.V. stated that it was his father’s

idea” that he go down to the Cibolo Police Department.

On cross-examination, defense counsel asked J.V. about the first time he made his

“outcry” regarding what happened between him and appellant. He testified that the outcry

precipitated after a series of events at a rock concert called Ozzfest in Selma, Texas. J.V.

attended the rock concert with his sister, father, J.V.’s friend, who was a minor, and

appellant. J.V. stated that after appellant had her chest painted,2 she approached him.

2
J.V. explained that at Ozzfest, som e wom en “take off their bras and shirts, and they get their chest
painted.”
4
When she grabbed J.V.’s wrists, he pushed her away. Afterwards, the police handcuffed

J.V. and put him in the back of a police car. An officer told J.V. that he was not under

arrest, but that he needed to detain him while he talked to J.V.’s father. J.V.’s friend went

over to the police car and talked to J.V., who told him that what J.V.’s father “suspected

had been going on between” him and appellant “was true.” That night, J.V. stayed with his

biological mother. There, J.V. told officers what had happened between appellant and him.

J.V. testified that he was purposefully vague because his mother, grandmother, and friend

were in his presence while he talked to the police. The officers took J.V. to the police

station that night “so they could do a one-on-one.” J.V. stated he did not remember what

he told police because at that point, he “wasn’t really trusting of anybody” and that he did

not “want to tell anybody the whole story.”

With respect to J.V.’s child, J.V. testified that appellant had told his father that “she

had been raped” and that the doctor informed the family that “she had amnesia.” At that

moment, J.V. and J.V.’s father found out appellant was pregnant. When asked by defense

counsel if J.V.’s father ever found them “in an inappropriate position” in bed, J.V. testified

that “he [J.V.’s father] caught her sleeping with” him.

William Carter, Ph.D., a psychologist specializing in psychological evaluations and

sexual dynamics, was asked by the prosecutor if a teenage boy in J.V.’s position “would

be confused about the fact that he’s getting some pleasure from this?”, Dr. Carter replied

that “the body does what the body’s going to do. I think if he engages in sex, there’s going

to be something about it that is physically pleasurable.” Dr. Carter stated that when he

sees an abuse victim “displaying oppositional defiant disorder . . . and if there is a quasi

incestuous relationship going on,” he would say that it “helps explain at least part of the

5
defiance.” He said that when a child victim of sexual abuse signs an affidavit of non-

prosecution, it “means that he wants the entire thing to go away” and “what he wants is

some closure.” He stated that “most children” do not lie about being sexually assaulted

and that teenagers are not “good with calendar dates.” When asked if there are families

“that express their affection and love through masturbating the teenage boys,” Dr. Carter

stated that “would be very far out of the norm.”

On cross-examination, Dr. Carter testified that “there are times” when children lie

about being sexually assaulted. Defense counsel pointed out that Dr. Carter had never

met or counseled appellant or J.V.

B. Defense Evidence

Appellant’s mother testified that she was “very much” involved in appellant’s life and

will “assist her in every way” she possibly could. On cross-examination, the State asked

her if she was aware that appellant “had contact with J.V. when she wasn’t supposed to

have it.” Appellant’s mother replied that she “had no knowledge that she [appellant] did.”

II. DISCUSSION

A. Sufficiency of the Evidence

We first address issues five and six wherein appellant contends the evidence is

legally and factually insufficient to support her convictions. Specifically, she argues that

J.V.’s trial testimony was vague and inconsistent.

1. Standard of Review

“‘In assessing the legal sufficiency of the evidence to support a criminal conviction,

we consider all the evidence in the light most favorable to the verdict and determine

whether, based on that evidence and reasonable inferences therefrom, a rational juror

6
could have found the essential elements of the crime beyond a reasonable doubt.’”

Roberts v. State, 273 S.W.3d 322, 326 (Tex. Crim. App. 2008) (citing Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007)). In a factual-sufficiency review, the only question to

be answered is: “Considering all of the evidence in a neutral light, was a jury rationally

justified in finding guilt beyond a reasonable doubt?” Grotti v. State, 273 S.W.3d 273, 283

(Tex. Crim. App. 2008).

Evidence can be deemed factually insufficient in two ways: (1) “the evidence

supporting the conviction is ‘too weak’ to support the fact finder’s verdict”; or (2)

“considering conflicting evidence, the fact finder’s verdict is ‘against the great weight and

preponderance of the evidence.’” Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App.

2009) (quoting Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). The

court of criminal appeals has “set out three ‘basic ground rules’ implementing this

standard.” Id. (quoting Watson, 204 S.W.3d at 414). First, the appellate court must

consider all of the evidence in a neutral light, as opposed to in a light most favorable to the

verdict. Id. Second, the appellate court “may only find the evidence factually insufficient

when necessary to ‘prevent manifest injustice.’” Id. (quoting Cain v. State, 958 S.W.2d

404, 407 (Tex. Crim. App. 1997)). Third, the appellate court must explain why the

evidence is too weak to support the verdict or why the conflicting evidence greatly weighs

against the verdict. Id. Although the verdict is afforded less deference during a factual-

sufficiency review, an appellate court is not free to “override the verdict simply because it

disagrees with it.” Id.

Our review of a legal and factual sufficiency challenge should be examined under

the principles of review for a hypothetically correct jury charge. Grotti, 273 S.W.3d at 280-

7
81. “‘Such a charge [is] one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof, or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried.’” Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App.

2009) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

When “there is some testimony that is inconsistent about the times and locations

involved” in a crime, it is for the “jury to conclude beyond a reasonable doubt that offenses

occurred and that they occurred” in that certain county. See Dunn v. State, 125 S.W.3d

610, 616 (Tex. App.–Texarkana 2003, no pet.). “When an indictment alleges that a crime

occurred “on or about” a certain date, the State can rely upon an offense with a date other

than the one specifically alleged so long as the date is anterior to the presentment of the

indictment and within the statutory limitation period of the offense. . . .” Yzaguirre v. State,

957 S.W.2d 38, 39 (Tex. Crim. App. 1997) (citing Sledge v. State, 953 S.W.2d 253 (Tex.

Crim. App. 1997)). It is the jury’s role to judge a witness’s credibility, including assessing

his motive to lie, and to choose to believe or disbelieve some or all of a witness’s

testimony. See Lange v. State, 57 S.W.3d 458, 465 (Tex. App.–Amarillo, 2001, pet. ref’d.).

2. Legal Sufficiency

a. Applicable Law-Sexual Assault of a Child

In counts five through eight, the jury convicted appellant of four counts of sexual

assault of a child. Section 22.011 of the Texas Penal Code provides that a person

commits the offense of sexual assault of a child if the person intentionally or knowingly

“causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual

organ of another person, including the actor.” TEX . PENAL CODE ANN . § 22.011(a)(2)(C).

8
To prove count five, as set forth in the jury charge, the State was required to establish

beyond a reasonable doubt that appellant on or about September 15, 2005, in Guadalupe

County, Texas “intentionally or knowingly cause[d] the sexual organ of [J.V.] to contact or

penetrate the defendant’s sexual organ, and the said [J.V.] was then and there a child

younger than 17 years of age and not the spouse of the defendant . . . .” Count six

contained the same language as count five, except that count six alleged that the offense

occurred on or about October 15, 2005. Count seven contained the same language as

counts five and six, except that count seven alleged that the offense occurred on or about

May 24, 2006. Count eight contained the same language as the other counts, except that

it alleged that the offense occurred on or about June 15, 2006.

Appellant contends the evidence is legally insufficient to support her convictions

because J.V.’s testimony at trial “was vague or uncertain.” J.V. testified that he lived in

Guadalupe County from August or September 2004 until July 2006. The evidence also

established that J.V. was younger than seventeen years old at the time of the offenses.

Appellant was married to J.V.’s father at the time of the alleged conduct. J.V. stated that

between July 2004 and May 2006 appellant engaged in sexual intercourse with him, which

meant placing J.V.’s penis inside appellant’s vagina, on at least six occasions in Cibolo,

Guadalupe County, Texas. A child victim’s description of what occurred need not be

precise, and wide latitude is given to the testimony of a child victim in a sexual abuse case.

Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). Moreover, a defendant’s

intent can be inferred from the acts, words, and conduct of the accused. See Hernandez

v. State, 819 S.W. 2d 806, 810 (Tex. Crim. App. 1991); DeLeon v. State, 77 S.W.3d 300,

312 (Tex. App.–Austin 2001, pet. ref’d.). Here, J.V. provided direct testimony concerning

9
the occasions, which occurred “once or twice a week,” where appellant and J.V. engaged

in sexual intercourse. Accordingly, the jury could have reasonably inferred that appellant

knowingly or intentionally caused the sexual organ of J.V. to contact or penetrate

appellant’s sexual organ, therefore establishing each count of sexual assault of a child.

See TEX . PENAL CODE ANN . § 22.011(a)(2)(C).

b. Applicable Law-Indecency With a Child

In counts nine through eleven, the jury convicted appellant of three counts of

indecency with a child. Section 21.11 of the Texas Penal Code provides that a person

commits the offense of indecency with a child “if, with a child younger than 17 years and

not the person's spouse, . . . the person: (1) engages in sexual contact with the child or

causes the child to engage in sexual contact . . . .” Id. § 21.11(a)(1). Sexual contact

includes the following acts “if committed with the intent to arouse or gratify the sexual

desire of any person:” “(1) any touching by a person, including touching through clothing,

of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of

the body of a child, including touching through clothing, with the anus, breast, or any part

of the genitals of a person.” Id. § 21.11(c). To prove count nine, as set forth in the charge,

the State was required to establish beyond a reasonable doubt that appellant on or about

May 23, 2006, in Guadalupe County, Texas “intentionally or knowingly engage[d] in sexual

contact with [J.V.] by touching any part of the genitals of [J.V.], and the said [J.V.] was a

child younger that [sic] 17 years of age and not the spouse of the defendant . . . .” Count

ten contained the same language as count nine, except that it alleged that the offense

occurred on or about May 25, 2006. Count eleven contained the same language as the

other counts, except that it alleged that the offense occurred on or about May 27, 2006.

10
 Appellant contends the evidence is legally insufficient to support her convictions

because J.V.’s testimony at trial was “generic and non-specific.” Here, J.V. clearly testified

that on at least six occasions, appellant fondled and touched his penis “in a manner to

arouse or gratify her sexual desire.” At the time appellant “fondle[d]” J.V.’s penis, J.V. was

under the age of seventeen and not married to appellant. It is within the jury’s exclusive

province to judge the credibility of a witness and to assign the weight to be given to his

testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

c. Applicable Law-Prohibited Sexual Conduct

In count twelve, the jury convicted appellant of prohibited sexual conduct. Section

25.02 of the Texas Penal Code provides that “[a] person commits an offense [of prohibited

sexual conduct] if the person engages in sexual intercourse or deviate sexual intercourse

with another person the actor knows to be, without regard to legitimacy: . . . the actor’s

current or former stepchild or stepparent.” TEX . PENAL CODE ANN . § 25.02(a)(2) (Vernon

Supp. 2009). “‘Sexual intercourse’ means any penetration of the female sex organ by the

male sex organ.” Id. § 25.02(b)(2). To prove count twelve as set forth in the charge, the

State was required to establish beyond a reasonable doubt that appellant on or about May

24, 2006, in Guadalupe County, Texas “intentionally or knowingly engage[d] in sexual

intercourse with [J.V.], a person the defendant knew to be, without regard to legitimacy, the

defendant’s stepchild . . . .”

Again, appellant contends the evidence is legally insufficient to support her

conviction because J.V.’s testimony lacks specificity. While on direct-examination, J.V.

testified that he and appellant had engaged in sexual intercourse as late as May 2006 in

Guadalupe County. In May 2006, J.V. was under seventeen years of age, not married to

11
appellant, and he was appellant’s stepchild.

Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational jury could have found beyond a reasonable doubt the essential elements of sexual

assault of a child, indecency with a child by contact, and prohibited sexual conduct.

3. Factual Sufficiency

For each of the counts, appellant contends the evidence before the trial court was

factually insufficient because J.V.’s trial testimony was vague, his dates and locations

where the alleged conduct took place were inconsistent, and his statements that were

videotaped and made to police were either untruthful or conflicting.

In July 2006, J.V. told the police about the nature of his relationship with appellant.

J.V.’s testimony was not so vague that the jury would have had trouble deciphering when,

where, or how the conduct took place. It is for the jury to judge the credibility of the

witness. See Cain, 958 S.W.2d at 408-409. J.V. testified that all of the alleged incidents

with appellant occurred between July 2004 and May 2006. Here, appellant claims that J.V.

“mixed up his dates,” and therefore the counts are not consistent with the actual dates of

occurrence. Moreover, appellant contends J.V. did not “keep a diary” of what was

occurring between him and appellant. However, J.V.’s testimony and the counts in the

indictment allege that the dates are “on or about” the dates of the incidents. The State may

rely upon an offense with a date other than the one specifically alleged. See Yzaguirre,

957 S.W.2d at 39; Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App. 1998)

(explaining that time is not a material element of an offense, and, in some cases, it is

impossible for the State to know precisely, or even approximately, when the charged

offense occurred). Further, J.V. provided the events that led to the first time he and

12
appellant had intercourse in chronological order. J.V. stated that, after he and appellant

first had sexual intercourse, the two would have intercourse “once or twice a week.”

“Whether the sequence of events [as testified to by a child] was alleged to have occurred,

one, ten, fifty or one hundred times does not by itself impact the believability of the child’s

story.” Dixon v. State, 201 S.W.3d 731, 735 (Tex. Crim. App. 2006). Considering all of the

evidence neutrally, we hold that the evidence supporting the verdict is not so weak as to

make the findings of guilt clearly wrong or manifestly unjust, nor is the verdict against the

great weight and preponderance of the evidence. We hold that the evidence is both legally

and factually sufficient to support the convictions. Issues five and six are overruled.

B. Speedy Trial

In issue four, appellant complains she was denied the right to a speedy trial. See

U.S. CONST . amend. VI; TEX . CONST . art. I, § 10.3

1. Standard of Review

When reviewing the trial court’s ruling on a speedy-trial motion, we use a bifurcated

standard of review. Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008). We

apply “an abuse-of-discretion standard for factual components, and a de novo standard for

the legal components.” Id. Those standards are well established, and a detailed recitation

of them need not be repeated here. It is sufficient to note that the trial court’s ruling will be

affirmed only if it is supported by the record and is correct under the applicable law. Shaw

v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003). When, as here, the trial court does

3
Article I, section 10 of the Texas Constitution also guarantees the accused in all crim inal cases the
right to a speedy and public trial. See T EX . C ON ST . art. I, § 10. This right exists independently of the federal
guarantee, but the court of crim inal appeals analyzes claim s of a denial of the state speedy-trial right under
the sam e four Barker factors. Cantu v. State, 253 S.W .3d 273, 280 n.16 (Tex. Crim . App. 2008); see Barker
v. W ingo, 407 U.S. 514, 530 (1972).
13
not make written findings of fact and conclusions of law, findings supported by evidence

will be implied in favor of the trial court’s ruling, and we must defer to such findings. See

State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

2. Applicable Law

The Sixth Amendment to the United States Constitution guarantees the accused in

a criminal case the right to a speedy trial. Cantu, 253 S.W.3d at 280. The right to a

speedy trial:

attaches once a person becomes an “accused,” [i.e.,] once he or she is arrested or
charged. Supreme Court precedent requires [us] to analyze federal constitutional
speedy-trial claims ‘on an ad hoc basis’ by first weighing and then balancing the four
Barker v. Wingo factors: (1) length of the delay[;] (2) reason for the delay[;] (3)
assertion of the right[;] and (4) prejudice[4] to the accused. While the State has the
burden of justifying the length of the delay, the [accused] bears the burden of
proving the assertion of the right and showing prejudice. The [accused’s] burden
of proof on the latter two [Barker] factors ‘varies inversely’ with the State’s degree
of culpability for the delay.

Id. (citing Robinson v. Whitley, 2 F.3d 562, 570 (5th Cir. 1993)). “Thus, the greater the

State’s bad faith or official negligence and the longer its actions delay a trial, the less [an

accused] must show actual prejudice or prove diligence in asserting [the] right to a speedy

trial.” Id. at 280-81.

“Once the Barker test is triggered, courts must analyze the speedy-trial claim by first

weighing the strength of each of the Barker factors and then balancing their relative

weights in light of ‘the conduct of both the prosecution and the defendant.’” Cantu, 253

S.W.3d at 281 (quoting Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002))

(quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)). No single “factor is ‘either a

4
See Ex parte McKenzie, 491 S.W .2d 122, 123 (Tex. Crim . App. 1973) (stating that “if an accused
m ade a prim a facie showing of prejudice, the State ‘m ust carry the obligation of proving that the accused
suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay’”).
14
necessary or sufficient condition to the finding of a deprivation of the’” speedy-trial right;

rather, “the four factors are related and must be considered together along with any other

relevant circumstances.” Id. Because no factor has “‘talismanic’” qualities, we must

engage “‘in a difficult and sensitive balancing process’” in each case. Id. (quoting Barker,

407 U.S. at 533).

“Upon a finding that an accused’s Sixth Amendment speedy-trial right was actually

violated, . . . dismissal of the charging instrument with prejudice is mandated.” Id.

“Because dismissal of the charges is a radical remedy, a wooden application of the Barker

factors would infringe upon ‘the societal interest in trying people accused of crime, rather

than granting them immunization because of legal error.’” Id. (quoting United States v.

Ewell, 383 U.S. 116, 121 (1966)). Thus, we “must apply the Barker balancing test with

common sense and sensitivity to ensure that charges are dismissed only when the

evidence shows that [an accused’s] actual and asserted interest in a speedy trial has been

infringed.” Id.; see Barker, 407 U.S. at 534-35 (finding a five-year delay did not violate the

speedy-trial requirement when the record showed the accused did not want a speedy trial).

“The constitutional right is that of a speedy trial, not dismissal of the charges.” Id.

3. Analysis

a. First Barker Factor: Length of the Delay

The first Barker factor is measured from the time the accused is arrested or formally

charged until the time the accused asserted the speedy-trial right. United States v. Marion,

404 U.S. 307, 321 (1971); see Cantu, 253 S.W.3d at 280.

15
 1. Time of Arrest

Appellant was arrested on September 12, 2006 for the initial charge. She was

released on October 4, 2006. In addition, she was incarcerated from July 11, 2008 until

July 14, 2008, and from September 22, 2008 until September 23, 2008. Appellant’s time

in jail totaled twenty-nine days.

2. Time of Formal Charges

On September 12, 2006, appellant was formally charged but waived indictment.

Appellant was not arrested or formally accused with any other charge until May 10, 2007,

at which time she was charged with the original charge and three additional charges. On

April 23, 2008, approximately twenty-nine months later, appellant first asserted her right

to a speedy trial.5 On July 9, 2008, all of the charges against appellant were dropped

because the State’s indictment was “faulty.” Appellant was reindicted on July 10, 2008, for

the same allegation contained in her previous indictment, plus eight additional charges.

3. Analysis

“The Barker test is triggered by a delay which is unreasonable enough to be

‘presumptively prejudicial.’” Cantu, 253 S.W.3d at 281 (citing Doggett v. United States,

505 U.S. 647, 652 n.1 (1992)). No set time element exists that triggers the analysis, but

the court of criminal appeals has held that a four-month delay is not sufficient while a

seventeen-month delay is. Id. In Doggett, the Supreme Court noted that courts “have

generally found post-accusation delay ‘presumptively prejudicial’ at least as it approaches

one year.” 505 U.S. at 652 n.1.

5
The trial court denied appellant’s m otion to dism iss for lack of speedy trial on January 14, 2009.
16
 In this case, approximately twenty-nine months elapsed from the time appellant was

indicted until the time she asserted her speedy-trial right. Therefore, we conclude the

delay was presumptively prejudicial, thereby resolving the first Barker factor in appellant’s

favor and warranting analysis of the three remaining Barker factors.

b. Second Barker Factor: Reason for the Delay

When the delay is determined to be presumptively prejudicial, the burden shifts to

the State to justify the delay. Turner v. State, 545 S.W.2d 133, 137-38 (Tex. Crim. App.

1976). Under Barker, “different weights” should be attributed to this factor depending upon

the different reasons for the delay. 407 U.S. at 531; Munoz, 991 S.W.2d at 822. A

“‘deliberate attempt to delay the trial’” weighs heavily against the State, whereas a “‘more

neutral reason, such as negligence or overcrowded courts, should be weighed’” less

heavily against the State. Munoz, 922 S.W.2d at 822 (quoting Barker, 407 U.S. at 531).

“A valid reason for the delay should not be weighed against the State.” Id.

Here, the record shows that both the State and appellant were both responsible for

delay. The State admitted that it was responsible for the delay: (1) when appellant was

arrested on September 12, 2006 until October 4, 2006, when the case was filed by

information to which appellant pleaded guilty and she waived indictment; (2) when the

presentence investigation report (PSI) was delayed between December 18, 2006 until

February 7, 2007; and (3) when the first indictment was dismissed, from July 9, 2008 to

August 19, 2008, when appellant was re-indicted and the case was placed back on the

docket for arraignment.6

6
The State, alleging that it acted in good faith, dism issed the original charges against appellant
because the indictm ent was “faulty.” The indictm ent contained a charge for sexual assault where it alleged
that appellant “did then and there intentionally or knowingly cause the contact with or penetration of the sexual
17
 Appellant’s delays included: (1) from February 7, 2007 until April 11, 2007, when

she requested a continuance in order to obtain new counsel; (2) from April 11, 2007

through December 17, 2007, when appellant withdrew her guilty plea requiring the State

to present an indictment to a grand jury, which necessitated a new arraignment date and

a trial docket setting; (3) when she requested a continuance because she was not

prepared to go to trial until the results of a paternity test were obtained; (4) a request for

a forensic psychologist, which demonstrated that she was not ready for trial; and (5) from

August 19, 2008 until October 10, 2008, when appellant requested a continuance because

her counsel was unavailable, in which she requested that the court continue the case “until

some future date.”

In addition, the State and appellant had mutual delays. The mutual delays included

six stipulated written resets, which were signed by the State, appellant, and appellant’s

counsel.7

The State’s effort to cure the defective indictment and delay in preparation of the

PSI weighed against the State. However, appellant’s delays, which included requesting

a continuance in order to obtain new counsel, withdrawing her guilty plea, and requesting

a continuance so that she could obtain paternity testing, a forensic psychologist, and an

investigator, weigh against appellant. Appellant’s continuances demonstrate that she, like

the State, at times was not prepared to go to trial and thus contributed to the overall delay

organ of [J.V.] a child who was then and there younger than 17 years of age and not the spouse of the
defendant, by defendant’s sexual organ.” The language contained in the charge was considered confusing
and defective because appellant, a fem ale, cannot physically use her sexual organ to penetrate the sexual
organ of J.V., a m ale.

7
The dates included: October 4, 2006 through Decem ber 18, 2006; Decem ber 17, 2006 through
March 12, 2008; March 12, 2008 through June 17, 2008; June 17, 2008 through July 19, 2008; October 10,
2008 through October 29, 2008; and October 29, 2008 through January 14, 2009.
18
of the case.

c. Third Barker Factor: Assertion of the Speedy-Trial Right

Appellant first asserted her right to a speedy trial on April 23, 2008.8 The accused

bears the responsibility to assert9 his or her right to a speedy trial. Cantu, 253 S.W.3d at

282. “‘The more serious the deprivation, the more likely a defendant is to complain.’” Id.

at 283 (quoting Barker, 407 U.S. at 531). An accused’s assertion of his or her speedy-trial

right (or the failure to assert the right) “is entitled to strong evidentiary weight in determining

whether the [accused] is being deprived of the right.” Id.; Harris v. State, 827 S.W.2d 949,

957 (Tex. Crim. App. 1992) (“[A]ppellant’s lack of a timely demand for a speedy trial

indicates strongly that he did not really want a speedy trial.”); see Barker, 407 U.S. at 536

(“[B]arring extraordinary circumstances, we would be reluctant indeed to rule that a

defendant was denied this constitutional right on a record that strongly indicates, as does

this one, that the defendant did not want a speedy trial.”). As the Fifth Circuit stated in

United States v. Palmer, “the point at which the defendant asserts his right is important

because it may reflect the seriousness of the personal prejudice he is suffering.” 537 F.2d

1287, 1288 (5th Cir. 1976).10 We conclude this factor weighs against appellant.

8
Appellant’s assertion of her right to a speedy trial occurred on April 23, 2008. On August 15, 2008,
appellant next asserted her right in a “m otion to dism iss with prejudice for lack of speedy trial.” Appellant did
not request a hearing on the this m otion until October 22, 2008, at which tim e she withdrew the m otion. On
January 14, 2009, appellant finally presented the m otion to the trial court.

9
Although a person cannot file a speedy-trial m otion until form al charges are m ade, the person can
assert his or her speedy-trial right in other ways. Cantu, 253 S.W .3d at 283. The United States Suprem e
Court has held that “invocation of the speedy trial provision . . . need not await indictm ent, inform ation, or other
form al charge.” Dillingham v. United States, 423 U.S. 64, 65 (1975).

10
In Palmer, the Fifth Circuit noted that because the defendant “first asserted his right thirty m onths
after his arrest, which was one m onth after he first received notification of his indictm ent, and he com plained
at that tim e only of the 22-m onth pre-indictm ent delay,” his “silence during the entire pre-indictm ent period
19
 d. The Fourth Barker Factor: Prejudice

“Because ‘pretrial delay is often both inevitable and wholly justifiable,’ the fourth

Barker factor examines whether and to what extent the delay had prejudiced the

defendant.” Cantu, 253 S.W.3d at 285 (quoting Doggett, 505 U.S. at 656). In analyzing

the prejudice to the accused, we must do so in light of the accused’s “interests that the

speedy-trial right was designed to protect: (1) to prevent oppressive pretrial incarceration[;]

(2) to minimize the accused’s anxiety and concern[;] and (3) to limit the possibility that the

accused’s defense will be impaired.” Id. (citing Dragoo v. State, 96 S.W.3d 308, 316 (Tex.

Crim. App. 2003)). Of these three types of prejudice, “the last is the most serious ‘because

the inability of a defendant adequately to prepare his case skews the fairness of the entire

system.’” Id. (quoting Dragoo, 96 S.W.3d at 316). Although “a showing of ‘actual

prejudice’ is not required in Texas,” the accused has the burden to make some showing

of prejudice that was caused by the delay of the trial. Harris v. State, 489 S.W.2d 303, 308

(Tex. Crim. App. 1973) (quoting Courtney v. State, 472 S.W.2d 151, 154 (Tex. Crim. App.

1971)).

At the motion to dismiss hearing, appellant and her counsel testified as to the

“prejudice she suffered” as a result of the delays. In her appellate brief, appellant further

argues that, as a result of such delays, she suffered prejudice for the following reasons:

(1) she was “ordered not to be in the presence of [her husband’s] daughter,” which required

her to live outside the family home; (2) she was ordered not to be around J.V. or any other

minor children, which consequently prevented her from seeing her husband or children; (3)

works against him because it suggests that any hardships he suffered were either m inim al or caused by other
factors.” United States v. Palmer, 537 F.2d 1287, 1288 (5th Cir. 1976).
20
her hours at work were reduced, she was suspended, and she was unable to find other

employment; and (4) the complaining witness, J.V., had “difficulty recalling the events that

happened two or more years before the time of trial.” Furthermore, appellant was

incarcerated for twenty-nine days over the course of this case, the final two days of which

were a result of a violation of her bond when she tested positive for cocaine.

Appellant has made no showing that she suffered anxiety or concern that resulted

from this case, beyond that associated with any criminal charge or investigation.

“[E]vidence of generalized anxiety, though relevant, is not sufficient proof of prejudice

under the Barker test, especially when it is no greater anxiety or concern beyond the level

normally associated with a criminal charge or investigation.” Cantu, 253 S.W.3d at 286.

The record shows that the court order prohibiting contact with her husband’s daughter was

the result of a custody case and not the pending criminal case against her. Further, the

court order prohibiting her from being in contact with minor children lasted for a period of

two or three months. This was an appropriate amount of time because she had been

charged with sexual assault and indecency with a minor child. Regarding appellant’s

employment status, the record reflects that “a news story that was aired in San Antonio”

involving appellant’s criminal case resulted in appellant’s temporary suspension without

pay.11 However, this is not prejudice beyond that normally associated with criminal charges

or investigations. See id. In addition, appellant failed to show how her defense was

impaired, although she does assert that J.V.’s memory was diminished because of the

delay. J.V., however, was a witness for the prosecution, and any impairment or “difficulty

11
One of the factual “m ajor evils protected against by the speedy trial guarantee” stated in United
States v. Marion was present, i.e., disruption in em ploym ent or drainage of financial resources. 404 U.S. at
320.
21
recalling the events” would likely benefit rather than prejudice her defense. See Barker,

407 U.S. at 534. (“the inability of a defendant to adequately prepare his case skews the

fairness of the entire system . . . . There is also prejudice if defense witnesses are unable

to recall accurately events of the distant past.”) (emphasis added). Lastly, appellant’s total

time of incarceration over the twenty-nine month period was twenty-nine days and is not

considered “oppressive pretrial incarceration.” See Palacios v. State, 225 S.W.3d at 169.

Furthermore, her final two days were a result of her use of cocaine. We conclude this

factor weighs against appellant.

3. Balancing the Barker Factors

The record in this case supports the trial court’s denial of appellant’s speedy-trial

motion. The only evidence appellant proffered that would weigh in her favor would be the

State’s delays due to its defective indictment. However, appellant had delays as well when

she requested new counsel, paternity testing, and other experts. In addition, appellant

failed to show any oppressive pretrial incarceration or any substantial personal or defense

prejudice resulting from the delay, demonstrating that the trial court did not err in denying

appellant’s motion for a speedy trial. We hold appellant was not denied her right to a

speedy trial. Issue four is overruled.

C. Jurisdiction

In issues one, two, and three, appellant contends this Court lacks jurisdiction over

this appeal. First, she argues that chapter 73 of the Texas Government Code violates the

Equal Protection Clause of the United States Constitution because it does not give proper

effect to the voters of Texas who elect the justices of the intermediate appellate courts.

See U.S. CONST . amend. XIV. TEX . GOV’T CODE ANN . § 73.001 (Vernon 2005). Second,

22
appellant argues that this Court lacks jurisdiction over this appeal because the Texas

Supreme Court’s order transferring her appeal to this Court is unconstitutional under the

Texas Constitution due to a conflict between the Texas Constitution and chapter 73 of the

Texas Government Code. Third, she claims this Court lacks jurisdiction over this appeal

because the order of transfer is a void exercise of legislative authority over the judiciary in

violation of the Separation of Powers provision contained in article II, section 1 of the

Texas Constitution. See TEX . CONST . art. II, § 1. She requests that we transfer this appeal

back to the Fourth Court of Appeals.

The Texas Supreme Court may transfer cases to this Court pursuant to section

73.001 of the Texas Government Code “at any time that, in the opinion of the supreme

court, there is good cause for transfer.” TEX . GOV’T CODE ANN . § 73.001; see also Arocha

v. State, No. 08-07-00108-CR 2009 WL 1883733, at *4 (Tex. App.–El Paso June 30, 2009)

(mem. op., not designated for publication) (pet. dism’d improvidently granted).12 Section

73.002 provides that the transferee court of appeals “has jurisdiction of the case without

regard to the district in which the case originally was tried and to which it is returnable on

appeal.” TEX . GOV’T CODE ANN . § 73.002. Appellant argues her constitutional issues as

challenges to our jurisdiction. Generally, a party is not required to preserve a challenge to

the court of appeals’ jurisdiction. See Arocha, 2009 WL 1883733, at *5. However, the

Eighth Court of Appeals in Arocha concluded that constitutional jurisdictional challenges

such as this must be preserved, because “[e]ven if Section 73.001 is unconstitutional as

12
The Court of Crim inal Appeals granted discretionary review to determ ine whether the Eighth Court
of Appeals erred in rejecting Arocha’s jurisdictional argum ents on the basis of a procedural default, however,
upon reviewing the record, it concluded that granting Arocha’s petition was im provident. Arocha v. State, No.
PD-1189-90, 2010 W L 2618421 (Tex. Crim . App. June 30, 2010).
23
applied to [Arocha], we would not be divested of jurisdiction” under section 73.002. Id.

The proper procedure for obtaining a transfer between appellate courts is by motion

to the Texas Supreme Court. See TEX . GOV’T CODE ANN . § 73.001. The Texas Supreme

Court has established the following procedure for a transfer:

The party requesting transfer should file a copy of the motion to
transfer in each of the two courts of appeals, asking that, when the motion
is forwarded to the Supreme Court, each court of appeals advise the
Supreme Court in writing whether it has any objection to the proposed
transfer. Any briefs in favor of the proposed transfer should also be filed in
each court of appeals and forwarded with the transfer motion. We will then
have the motion, the briefs, and the comments of the two courts of appeals
in determining whether to grant the motion to transfer.

Id. (citing Miles v. Ford Motor Co., 914 S.W.2d 135, 137 n.2 (Tex. 1995)). Failure to follow

the established procedure results in failure to preserve complaints about the transfer of an

appeal. See id.

The State contends that appellant failed to utilize the procedure for seeking a

transfer of her appeal. Appellant’s brief mentions a document that she urges was filed with

the Texas Supreme Court, entitled “Special Appearance and Objection to Case Transfer

of Case From Courts of Appeals,” yet no copy of this document was included in the record.

Regardless, from the title of the document we cannot discern if it serves in any way to

comport with proper procedure for requesting a transfer. If appellant had followed the

procedure and her motion had been granted, her complaints about the constitutionality of

section 73.001 would be remedied. Id. Alternatively, if her motion were denied, this Court

would be in a position to address the constitutional issues. Id. We conclude appellant did

not follow the proper procedure requesting transfer, and, therefore, her complaint is not

preserved. We overrule appellant’s first, second, and third issues.

24
 III. CONCLUSION

We affirm the judgment of the trial court.

ROSE VELA
Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the
19th day of August, 2010.

25