Adrian Vincent Duncan v. State ( 2012 )

Affirmed and Memorandum Opinion filed April 3, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-11-00298-CR
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ADRIAN VINCENT DUNCAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1266187
MEMORANDUM OPINION
Appellant Adrian Vincent Duncan was convicted of burglary of a habitation with
the intent to commit theft and sentenced to 35 years‘ incarceration. Appellant presents
two issues on appeal, arguing that: (1) the evidence is insufficient to support his conviction,
and (2) appellant was denied his constitutional right to a speedy trial.
BACKGROUND
On June 8, 2010, Nita Brown departed from the garage of her townhome for an
afternoon walk and left her garage door open. A few minutes into her walk, Brown
testified that she observed a young African American man walking in the neighborhood.
Brown testified that she was alarmed by the man‘s presence in the neighborhood because
she had never seen him before and because her neighborhood is made up primarily of
―people over the age of 60.‖ She decided to return home a few minutes later.
When she arrived, she found the man, who was later identified as appellant,
standing inside her garage. Brown asked him, ―Can I do something for you?‖ He
replied, ―I‘m fine,‖ then walked past Brown out of the garage. Brown stated that she did
not see appellant touch anything, but she later noticed that a closet door in the garage was
open and an air compressor was in the middle of the garage rather than in its usual location
inside the closet. Brown stated that she knew the closet door was closed before she left for
the walk, and that she found the compressor in the spot where her husband‘s car was
parked prior to his leaving for work that morning.
Brown immediately alerted her neighbor, Jean Jackson, who told Brown to contact
the police while Jackson followed appellant. Jackson departed in the direction she had
seen appellant walking. Jackson lost sight of appellant and asked another neighbor, Jim
Smith, if he had seen appellant. Smith informed Jackson he had seen appellant pass by at
a pace Smith described as ―unusual‖ and with ―very large strides‖ at ―a rapid pace,‖ but not
running. Jackson soon sighted appellant moving at a ―brisk walk‖ towards a restaurant,
where appellant was arrested by police minutes later.
At trial, the jury found appellant guilty of the felony offense of burglary of a
habitation with the intent to commit theft. Appellant was sentenced to 35 years‘
incarceration based upon jury recommendation. Appellant presents two issues on appeal,
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arguing that: (1) the evidence is insufficient to support his conviction, and (2) appellant
was denied his constitutional right to a speedy trial.
ANALYSIS
I. Sufficiency of the Evidence
In appellant‘s first issue, he argues that the evidence is insufficient to sustain his
conviction. Specifically, he argues that the State presented no evidence to show he
intended to commit theft when he entered Brown‘s garage.
When reviewing the sufficiency of the evidence, we view all of the evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences from it, whether any rational fact finder could have found the
elements of the offense beyond a reasonable doubt. Palomo v. State, 352 S.W.3d 87, 90
(Tex. App.—Houston [14th Dist.] 2011, pet. ref‘d) (citing Isassi v. State, 330 S.W.3d 633,
638 (Tex. Crim. App. 2010), and Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The jury
is the exclusive judge of the credibility of witnesses and the weight to be given to the
evidence. Id. Further, we defer to the jury‘s responsibility to fairly resolve or reconcile
conflicts in the evidence. Id. We draw all reasonable inferences from the evidence in
favor of the verdict. Id. This standard applies to both circumstantial and direct evidence.
Id.
A person commits the offense of burglary if, without the effective consent of the
owner, he enters a habitation and either commits or attempts to commit theft. TEX. PENAL
CODE ANN. § 30.02(a)(3) (West 2011). Intent to commit theft may be inferred from the
circumstances. Lewis v. State, 715 S.W.2d 655, 657 (Tex. Crim. App. 1986). The intent
with which a defendant enters a habitation is a fact question for the jury to decide based
upon the surrounding circumstances. Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim.
App. 1984). When supported by sufficient circumstantial evidence, ―the jury‘s finding of
intent to steal will not be disturbed on appeal where there is no testimony to indicate that
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the entry was made with any other intent.‖ Stearn v. State, 571 S.W.2d 177, 178 (Tex.
Crim. App. [Panel Op.] 1978).
Relying upon Solis v. State, 589 S.W.2d 444 (Tex. Crim. App. [Panel Op.] 1979),
appellant urges that his behavior on the day of the incident was ―inexplicable,‖ and thus
insufficient to establish the criminal intent to commit theft. In Solis, the defendant
removed a window screen from the Alfred residence, then took the screen next door to the
Pierce home, ―placed it on the lawn near the Pierce front window, and attempted to enter
the Pierce house before being interrupted by Mrs. Pierce.‖ Id. at 446. The defendant was
convicted of attempted burglary with the intent to commit theft in the Alfred residence.
Id. at 445. The Court of Criminal Appeals reversed the conviction because, ―although the
circumstances show that appellant probably intended to enter the Alfred house with intent
to commit theft, his behavior after removal of the screen was sufficiently inexplicable that
reasonable doubt remains as to what his specific criminal intentions actually were.‖ Id. at
446–47.
In contrast to Solis, ―there is more evidence in this case than appellant‘s attempting
to enter the complainant‘s home.‖ See Gear v. State, 340 S.W.3d 743, 748 & n.9 (Tex.
Crim. App. 2011) (additional evidence, including ―implausible and inconsistent
explanations for [the defendant‘s] conduct, and his flight upon being interrupted by the
complainant,‖ constituted legally sufficient evidence supporting intent to commit theft).
Though appellant‘s entry occurred during the day and Brown did not see appellant touch
any property, Brown testified that the closet door in the garage was closed when she left,
that it was open after she returned to find appellant standing in her garage minutes later,
and that the air compressor was in the middle of the garage rather than in its usual location
inside the closet. Such circumstances support an inference that appellant moved the air
compressor, and therefore intended to commit theft. See Lewis, 715 S.W.2d at 657
(defendant‘s presence inside home, in addition to movement of property from a closed
cupboard, was sufficient to show an intent to commit theft despite absence of stolen
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property on defendant‘s person); see also Black v. State, 183 S.W.3d 925, 928 (Tex.
App.—Houston [14th Dist.] 2006, pet. ref‘d) (evidence of a computer system stacked and
―ready to go‖ near point of entry supported intent to commit theft); White v. State, 630
S.W.2d 340, 342 (Tex. App.—Houston [1st Dist.] 1982, no pet.) (movement of equipment
from one part of garage to another supported intent to commit theft). And despite the fact
that appellant did not ―run‖ from the Brown residence, multiple witnesses testified that
appellant left the scene at a pace described as ―unusual‖ and with ―very large strides‖ at ―a
rapid pace,‖ or a ―brisk walk.‖ ―[W]hile flight alone will not support a guilty verdict,
evidence of flight from the scene of a crime is a circumstance from which an inference of
guilt may be drawn.‖ Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. [Panel Op.]
1979) (op. on reh‘g); see also McLendon v. State, 167 S.W.3d 503, 509 (Tex.
App.—Houston [14th Dist.] 2005, pet. ref‘d).
On this record, we conclude there is sufficient evidence to show appellant possessed
an intent to commit theft based upon the circumstances surrounding appellant‘s presence in
and departure from Brown‘s garage. A rational jury could have found appellant guilty of
burglary of a habitation beyond a reasonable doubt based on the combined and cumulative
force of all the incriminating circumstances presented. See Johnson v. State, 871 S.W.2d
183, 186 (Tex. Crim. App. 1993) (―[I]t is not necessary that every fact point directly and
independently to the defendant‘s guilt; it is enough if the conclusion is warranted by the
combined and cumulative force of all the incriminating circumstances.‖). We overrule
appellant‘s first issue.
II. Right to a Speedy Trial
Appellant argues in his second issue that his federal and state constitutional right to
a speedy trial was violated because he was incarcerated for more than eight months
awaiting trial.
The right to a speedy trial is guaranteed by the Sixth Amendment, which applies to
the states through the Fourteenth Amendment. U.S. CONST. amend. VI, XIV; Barker v.
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Wingo, 407 U.S. 514, 515 (1972). Under the Texas Constitution, the speedy-trial right
exists independently of the federal guarantee, but we review claims relating to a denial of
the state speedy-trial right under the same analysis as federal claims. Cantu v. State, 253
S.W.3d 273, 280 n.16 (Tex. Crim. App. 2008) (applying same standard to state and federal
speedy-trial claims); see also TEX. CONST. art. I, § 10; Barker, 407 U.S. at 515.
We analyze constitutional speedy-trial claims on a case-by-case basis by ―weighing
and then balancing the four Barker v. Wingo factors,‖ which include: (1) length of the
delay; (2) reason for the delay; (3) assertion of the right; and (4) prejudice to the accused.
Cantu, 253 S.W.3d at 280; see also Barker, 407 U.S. at 530–32. Appellate courts must
conduct a bifurcated review of a trial court‘s ruling1 on a speedy-trial motion. Zamorano
v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). Factual issues are reviewed under
an abuse of discretion standard, while legal issues are reviewed de novo. Id.
With respect to the first Barker factor, ―[t]he length of the delay . . . acts as a
‗triggering mechanism.‘‖ Id. (citing Barker, 407 U.S. at 530). ―Unless the delay is
presumptively prejudicial, courts need not inquire into [or] examine the other three
factors.‖ Id. Based upon the circumstances of the case, ―the delay that can be tolerated
for an ordinary street crime‖ is considerably less than, for example, a ―serious, complex
conspiracy charge.‖ Id. at 649 (internal quotation omitted).
Delay under the first Barker factor is measured from the date of the formal
accusation or arrest until the date the defendant is brought to trial. State v. Smith, 76
S.W.3d 541, 548 (Tex. App.—Houston [14th Dist.] 2002, pet. ref‘d) (citing Webb v. State,
36 S.W.3d 164, 173 (Tex. App.—Houston [14th Dist.] 2000, pet. ref‘d)). Pre-accusation
delay is not relevant to the speedy-trial analysis. United States v. Marion, 404 U.S. 307,
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Although appellant filed several pro se motions regarding his speedy-trial claim with the trial
court, the record does not contain express ruling on the pro se motions. See Guevara v. State, 985 S.W.2d
590, 592 (Tex. App.—Houston [14th Dist.] 1999, pet. ref‘d) (holding that appellant may not raise an issue
regarding speedy-trial claim for the first time on appeal). Because we conclude that appellant‘s
speedy-trial claim is without merit, we need not decide whether appellant properly preserved this issue for
our review.
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313 (1971). Courts generally have held that a delay approaching one year from formal
accusation or arrest of the defendant until trial to be presumptively prejudicial, triggering
the analysis of the remaining Barker factors. Cantu, 253 S.W.3d at 281 n.21; Celestine v.
State, 356 S.W.3d 502, 507 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
Appellant was arrested on June 8, 2010, indicted on August 18, 2010, and brought
to trial on March 25, 2011. This establishes a delay of nine months from appellant‘s arrest
(and seven months from indictment) until he was brought to trial. However, appellant
agreed to reset his trial—which was originally set for July 20, 2010—on three separate
occasions, culminating in a final reset date of October 29, 2010.2 This court has held that
delays based upon agreed resets should not be included in speedy-trial computations under
the first Barker factor. See State v. Kuri, 846 S.W.2d 459, 463 (Tex. App.—Houston
[14th Dist.] 1993, pet. ref‘d) (agreed resets are ―inconsistent with assertion of a speedy trial
right, and the delay covered by such resets should not be included in speedy trial
computations‖ under first Barker factor), overruled on other grounds by Johnson v. State,
954 S.W.2d 770 (Tex. Crim. App. 1997); accord Celestine, 356 S.W.3d at 507–08 (relying
on Kuri to hold that nine-month delay during eleven-month period between arrest and trial
was due to agreed resets and therefore excluded from speedy-trial calculations under first
Barker factor); cf. Caicedo v. State, 769 S.W.2d 597, 598 (Tex. App.—Houston [14th
Dist.] 1989, no writ) (holding that delay was due to agreed resets, which waived appellant‘s
speedy-trial claim). Accordingly, we can determine that appellant suffered a delay of just
over six months for purposes of analyzing his speedy-trial claim.
We conclude on this record that such a delay was not presumptively prejudicial
under the first Barker factor. See, e.g., Mannahan v. State, Nos. 09-04-163-CR &
09-04-164-CR, 2005 WL 2036255, at *2 (Tex. App.—Beaumont Aug. 10, 2005, pet. ref‘d)
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The first and third agreed resets bear appellant‘s purported signature. The second agreed reset
was not signed by appellant, but was signed by his trial counsel. Appellant asserts in his brief on appeal
that counsel forced him to sign the agreed reset forms contained in the record. However, appellant raises
no issue with respect to such an assertion, and cites to no evidence in the record to support such an assertion.
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(mem. op., not designated for publication) (seven-month delay for prosecution of burglary
of a building was not presumptively prejudicial); see also Cantu, 253 S.W.3d at 281
(noting that courts have held four-month delay insufficient to trigger inquiry of remaining
Barker factors); Whitfield v. State, 137 S.W.3d 687, 690 (Tex. App.—Waco 2004, no pet.)
(delays of eight months or more usually are considered presumptively prejudicial); cf. In re
J.M., No. 13-04-226-CV, 2005 WL 1910801, at *4 (Tex. App.—Corpus Christi Aug. 11,
2005, pet. denied) (mem. op.) (five-month delay in prosecution of delinquent conduct
committed by escaping from a juvenile correctional facility ―could in no way be construed
as ‗presumptively prejudicial‖‘). Until there is some delay that is presumptively
prejudicial, ―there is no necessity for inquiry into the other factors that go into the balance.‖
Barker, 407 U.S. at 530. Because appellant‘s delay was insufficient to warrant further
analysis under Barker, we overrule appellant‘s second issue.
CONCLUSION
Having overruled both of appellant‘s issues on appeal, we affirm the trial court‘s
judgment.
/s/ Sharon McCally
Justice
Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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