Paul Joseph Shoemaker v. State

NUMBER 13-04-149-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

PAUL JOSEPH SHOEMAKER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 404th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Garza

A jury found appellant, Paul Joseph Shoemaker, guilty of murder. See Tex. Pen.

Code Ann. § 19.02 (1) (Vernon 2003). The trial court sentenced appellant to thirty years'

imprisonment. By seven issues, appellant challenges his conviction, contending that (1) the

trial court erred by failing to suppress the pre-trial and in-court identification of appellant, (2)

the trial court's declaration of a mistrial barred retrial for the same charge, (3) the State

committed reversible error by failing to disclose that it entered into a deal with a testifying

witness, (4) the trial court abused its discretion in denying his motion to bar prosecution, (5)

the State committed reversible error by calling a witness who refused to testify, (6) the trial

court abused its discretion in not granting a mistrial after appellant's incarceration and

criminal history were revealed to the jury, and (7) references to appellant as "white boy"

throughout trial denied appellant equal protection under the Texas Constitution. We affirm

the conviction.

I.

In his first issue, appellant contends that the trial court erred by failing to suppress

the pre-trial and in-court identification of appellant. The State asserts that appellant waived

any error in the admission of this evidence because appellant's counsel first introduced the

complained-of evidence. We agree with the State.

The record shows that appellant filed a motion to suppress the identification

contending the photo lineups were improper and suggestive. (1) The trial court granted the

motion to suppress the pre-trial identification but denied the motion to suppress the in-court

identification, ruling that the detective who made the lineup would be able to testify about

it. Appellant argues "this ruling permitted evidence of the suggestive pretrial identification

itself to be introduced through the testifying officer . . . ." Nonetheless, appellant's counsel

introduced the complained-of lineups into evidence at trial. (2)

Appellant's counsel on appeal

speculates that appellant's trial counsel was placed in a difficult dilemma by the trial court's

ruling that the detective would be able to testify about the lineup. Appellate counsel states

that trial counsel "did not waive his suppression issue by not objecting specifically each time

an in-court identification was made, but rather that he adjusted his trial strategy completely

to compensate for the eventuality of Alvear's [the detective] forthcoming testimony and the

in court identification." We find appellant's argument that the issue was not waived

unpersuasive and find appellant's lack of authority in support of that contention noteworthy. The court of criminal appeals has held in similar, but distinct, situations that the

suppression issue was not preserved for review. See Moody v. State , 827 S.W.2d 875, 889

(Tex. Crim. App. 1992); Dean v. State , 749 S.W.2d 80, 82-83 (Tex. Crim. App. 1988); Harris

v. State , 656 S.W.2d 481, 484 (Tex. Crim. App. 1983); McGrew v. State , 523 S.W.2d 679,

680-81 (Tex. Crim. App. 1975). When evidence is offered during trial and defense counsel

affirmatively represents that the defendant has "no objection" to the evidence, any error in

the admission of the evidence is waived even if the error had been previously preserved by

a motion to suppress. Moody , 827 S.W.2d at 889 ; Dean , 749 S.W.2d at 82-83 ; Harris , 656

S.W.2d at 484 ; McGrew , 523 S.W.2d at 680-81 . Even if a defendant objects to the

admission of evidence, but the same evidence is subsequently introduced from another

source without objection, the defendant waives his earlier objection. Massey v. State , 933

S.W.2d 141, 149 (Tex. Crim. App. 1996); Leday v. State , 983 S.W.2d 713, 717-18 (Tex.

Crim. App. 1994); cf. Ohler v. United States , 529 U.S. 753, 760 (2000) (stating that "a

defendant who preemptively introduces evidence of a prior conviction on direct examination

may not on appeal claim that the admission of such evidence was error").

Because appellant introduced the evidence himself, we hold that he waived any error

with respect to the admission of that evidence. We overrule appellant's first issue on

appeal.

II.

In his second issue, appellant argues that the trial court violated his Fifth Amendment

right not to be placed in jeopardy twice for the same offense because there was no manifest

necessity for declaring a mistrial in his case.

The Fifth Amendment of the United States Constitution prohibits the State from

putting a person in jeopardy twice for the same offense. U.S. Const. amend V. In a jury

trial, jeopardy attaches when the jury is impaneled and sworn. Crist v. Bretz , 437 U.S. 28,

47 (1993); Hill v. State , 90 S.W.3d 308, 313 (Tex. Crim. App. 2002). But the double

jeopardy clause does not provide that, every time a defendant is put to trial, he is entitled

to go free if the trial ends in a mistrial. Hill , 90 S.W.3d at 313 . An exception to this rule

exists if the first trial resulted in a mistrial that: (1) was justified under the manifest necessity

doctrine, or (2) was requested or consented to by the defense, absent prosecutorial

misconduct which forced the mistrial. See id. ; Robinson v. State , 139 S.W.3d 748, 751

(Tex. App.-Corpus Christi 2004, pet. dism'd) (citing Ex parte Peterson , 117 S.W.3d 804,

810-11 (Tex. Crim. App. 2003)). Manifest necessity is not an issue in this case because

appellant consented to a mistrial. (3) Therefore, our only determination is whether appellant

did not give his effective consent to the mistrial.

The record reflects that the trial court declared a mistrial after a juror informed the

court that appellant's uncle had been married to his niece and that the marriage had ended

over five years ago. The juror stated that he did not think that the fact that his niece had

been married to appellant's uncle "would have any relevance on my opinion, but I didn't

want the problem to come up." The State objected to the juror, stating the familial

relationship with appellant as its reason, and expressed that it was willing to proceed with

eleven jurors. (4) The State further explained that it believed the juror would be prejudiced

against the State and moved to challenge him for cause. The State later withdrew its

objection and stated that they would allow the juror to proceed.

The record further reflects that the defense stated that, had he known of the history

between the juror and appellant, he would have explored the relationship before having

chosen him as a juror. The court inquired whether appellant had assisted trial counsel in

the selection of the jury. Defense counsel answered that while appellant did assist him, he

did not think appellant recognized the juror otherwise he would have said something. The

defense then stated that if the court discharged the juror it would not be willing to proceed

with eleven jurors. The court went on to explain "both of you are in a wall and a hard place

and I think it would be unfair to the state, but most of all it would be unfair to the defendant."

Defense counsel agreed with the court and elaborated:

[I]f I would have known about this relationship, I would have asked specific

questions about how the marriage broke up, about what his contact was with

my client, what he specifically felt about my client's uncle, his feelings to me,

it seems some resentment in the voice about the break up of the marriage,

it's his niece that was possibly hurt if she was, and my feeling is that I need

to explore that at least on the record, and if I had known if he had resentment

if that turns out to be the case, I would not have chosen this juror. I would

have struck him and I think my client is absolutely prejudiced by the selection

of this person on the jury.

The trial court went on to state that it was concerned that even though jurors are

instructed, in situations such as this, it is likely that information could have been elaborated

among the other members of the jury and it could subconsciously or consciously affect the

other jurors' judgment either for or against the defendant. The court stressed "it could be

against the defendant, which is what is really more important." The court further explained:

This is not a situation where double jeopardy attaches even though the jurors

were sworn, however, I'm going to let the juror go, however, I just want to say

on the record, Mr. Blaylock [appellant's trial counsel], that - - without any fault

of your own of course, maybe, not with the fault of your client, but this is

charged to the defendant, that's why I asked you earlier if you had assistance

from your client being that it was five years. This Court does not believe that

five years is such a remote - - of such remoteness that the defendant couldn't

have recognized.

Trial counsel responded "[t]hat's fine, Judge. I don't think there's any prosecutorial

misconduct. I didn't perceive to pursue any kind of barring subsequent prosecution

because of anything."

We hold that double jeopardy was not a bar to retrial because appellant effectively

consented to mistrial and not because of any prosecutorial misconduct. See Hill , 90

S.W.3d at 313 ; Robinson , 139 S.W.3d at 751 . (5) Accordingly, appellant's second issue is

overruled.

III.

In his third issue, appellant contends the State failed to disclose that it entered into

a deal with a testifying witness, Roberto Alejandro Baraona, where, in exchange for

Baraona's testimony, a pending felony charge would be dismissed.

As an initial matter, we address the State's motion to strike appellant's

supplementation of the record. The State asserts that appellant improperly supplemented

the clerk's record. The documents on which appellant relies for his third issue, designated

as "3 RD SUPPLEMENTAL CLERKS' RECORD," were filed with this Court on November 8,

2005. The State argues that the documents cannot be considered on appeal because they

are from a separate proceeding and were not introduced into evidence at the trial court

level. The State requests that we strike appellant's supplementation of the clerk's record.

When documents appear in the clerk's record that have not been introduced in

evidence, they cannot be considered as part of the record. See Chambers v. State , 194

S.W.2d 774, 775 (Tex. Crim. App. 1946); Webber v. State , 21 S.W.3d 726, 731 (Tex.

App.-Austin 2000, pet. ref'd). The documents contained in the 3 RD SUPPLEMENTAL

CLERK'S RECORD, which relate to a separate cause, were never filed in appellant's

underlying case. Instead, on November 3, 2005, some 21 months after judgment was

rendered and sentence imposed, appellant requested that the clerk's record be

supplemented with the documents in question. It is clear that the documents in the 3 RD

SUPPLEMENTAL CLERK'S RECORD that appellant indicates would show a deal regarding

the felony charge between Baraona and the State, were not before, nor called to the

attention of, the trial court at the time judgment was entered. Because the documents

referred to by appellant are ex parte matters neither filed nor offered in proof at the trial,

they cannot be considered part of, nor incorporated in, the record, Chambers , 194 S.W.2d

at 775 , and, thus, we have no discretion to permit the supplementation of the record with

the documents contained in the 3 RD SUPPLEMENTAL CLERK'S RECORD. Farris v. State ,

712 S.W.2d 512, 516 (Tex. Crim. App. 1986). (6) Accordingly, we grant the State's motion to

strike the documents contained in the record at issue.

Due process requires any agreement or deal for testimony between the State and

a witness be revealed to a defendant, even if evidenced only by suggestions and

innuendos. See Burkhalter v. State , 493 S.W.2d 214, 217 (Tex. Crim. App. 1973) (holding

that where the witness did not directly have an agreement with the State, reversible error

existed where the jury was not informed that the witness's lawyer had an "understanding"

with the State but only told the witness that his testimony "could help him"); cf. Cook v.

State , 940 S.W.2d 623, 629 (Tex. Crim. App. 1996) (recognizing due process obliges State

to disclose exculpatory evidence). Exposing a witness's motivation to testify for or against

the accused or the State is a proper and important purpose of cross-examination.

Carpenter v. State , 979 S.W.2d 633, 634 (Tex. Crim. App. 1998). Where an agreement or

understanding has been made between a witness and the State for testimony, the jury has

a right to know about it to judge the credibility of the witness. Giglio v. United States , 405

U.S. 150, 155 (1972).

On direct examination by the State, Baraona testified that he was currently in jail and

that he had a deal with the State to testify in exchange for dismissal of three pending

misdemeanor charges, specifically, for evading arrest, possession, and unlawful carrying

of a handgun. However, Baraona denied the existence of a deal in regards to his pending

felony charge for hindering apprehension. (7) Baraona testified that he contacted Alvear and

informed him that he knew about the murder and told him that, in exchange for his

testimony, he wanted his charges to be dropped and wanted to get out of prison. Baraona

also asked Alvear to arrange things so that Baraona would not be deported to El Salvador.

Baraona then testified that Alvear informed him that only the three misdemeanor charges

would be dropped and that Alvear would try to do something about the deportation but "that

it was really out of his hands" and there was really no agreement about it. Baraona went

on to explain that, although he could be killed for testifying, he chose to testify to show his

mother that he is no longer associated with the gang known as the "Latin Kings" and

because he wants to change his life. Baraona further commented that he also chose to

testify because the Latin Kings never helped him when he had problems.

On cross-examination by defense counsel, Baraona testified that when he initially

met with defense counsel in December of 2002, he was willing to help appellant. But then,

in January 2004, Baraona decided he no longer wanted to help appellant. Defense counsel

attributed Baraona's change of heart to Baraona's October 2003 arrest and questioned

whether Baraona decided to testify to get himself "off." Baraona denied that his change of

heart was a result of his arrest. However, he did admit that he called Alvear and expressed

his willingness to testify in return for something and that Alvear told him he would continue

to help if Baraona cooperated. Baraona testified that his felony charge was still pending

and that he had requested the trial court to appoint counsel to help him defend the charge.

In addition, he stated that his family had hired a lawyer to help him with his deportation

proceeding. Defense counsel questioned Baraona and suggested that he would not have

hired an immigration attorney unless he knew his felony charge would be dismissed.

Baraona again denied any arrangement with the State to have the felony charge dismissed.

Defense counsel proceeded to question Baraona as follows:

Q. You got paid for your testimony didn't you?

A. I got three misdemeanors dropped.

Q. Right.

A. Which is the least of my problems.

Q. And the probability of getting deported is lessened; is that right?

A. It's not right.

Q. And you got the goodwill of the police to help you out in your

deportation proceeding didn't you?

A. That's federal, sir. They can't do anything about it.

Q. Alvear told you he could help you how he could, didn't he? (8)

* * *

Q. You haven't been convicted of that felony that's still pending have you?

A. That's correct.

Q. And you are not going to get convicted are you?

A. Can't tell the future, sir.

On re-direct, Baraona again testified that there was no agreement between him and

Alvear to have the felony charged dismissed. He agreed that he would still be facing felony

charges and stated he intended to plead not guilty.

On re-cross, defense counsel proceeded to question Baraona as follows:

Q. You are well capable of telling lies aren't you? Whenever it suits your

purposes, right?

A. What do you mean by suit my purposes?

Q. Well, you're gaining significantly from this one aren't you? Three

misdemeanors being dismissed, you got Alvear saying I'm going to

help you out, giving you a word?

A. Sir, with all due respect, three misdemeanors are the least of my

problems right now.

Q. Yeah. Who told you to say that?

A. No one, sir.

Q. Isn't it true that if Alvear or the prosecution gives a good word for you,

you know that's going to help you with the immigration? You don't

know that?

A. The way immigration laws are right now, nothing could really help me

except my - - except asking for asylum.

Q. Isn't it true that that felony that's still pending, you've already been told

you're not going to get a conviction?

A. I have not been told anything. I've been told that the felony is going to

stick on me.

Q. You are sure that you are not going to be convicted of that felony

aren't you?

THE COURT: Counsel, hold on. That's been asked and

answered, Counsel. I'm going to let him answer

one more time. Go ahead.

Q. Isn't that why you hired a lawyer to help you on your immigration?

Wouldn't waste money on a lawyer unless you already knew.

A. It's not wasting money on a lawyer. It's a pro bar [sic] lawyer.

The record further reflects that during closing argument, defense counsel

emphasized that Baraona testified so that his felony charge could be dismissed and so that

he would not be deported. Defense counsel argued:

Still got the felony pending. What's going to happen to that felony? I've been

in this gang a long time, it's not going to go. There is a reason it's still

pending. If he performs good, they get the conviction, it's gone. He is not

going to be deported. He gets to stay with his mom. He didn't have anything

else. Baraona is desperate he didn't have anything to sell so he sold out his

friend.

The State's closing argument was as follows:

Robert, Baraona, you are the exclusive judges of the credibility of all

witnesses. Did you believe that? Listen to his testimony. He wanted to make

a deal, of course. He's trying to do the best thing he can, but did he tell you

the truth? Did he have a close relationship with [appellant]? Yeah, you saw

it in the letters. Was he a member of the Latin Kings? Yeah, he was. At

what price did he come into this courtroom. Death? Is that worth getting a

couple of misdemeanors? That's a guy who's going to be deported to El

Salvador. His mom is going to get left behind all alone and he wants out.

This gang has given him nothing but pain and trouble and heart break no

matter how much he tries to help. It's always been a problem for him. Do you

believe he wants out? Did he convince you in that? He is a marked man and

is getting a few misdemeanors dismissed, worth getting a target sign on the

forehead.

Appellant contends that the State failed to disclose that Baraona's pending felony

charge would be dismissed. The record indicates that defense counsel extensively cross-examined Baraona regarding any deals pertaining to his felony charge. Nonetheless, there

is no evidence that Baraona was promised anything other than the dismissal of the three

misdemeanors in exchange for his testimony, that the State misled the jury, that the State

allowed Baraona to present false testimony or perjure himself, or that the felony charge was

dismissed. Accordingly, appellant's third issue is overruled.

IV.

In his fourth issue, appellant contends the trial court abused its discretion in denying

his motion to bar prosecution because the State violated his right to a speedy trial.

The right to a speedy trial is guaranteed by the Sixth Amendment to the United

States Constitution and is applicable to the states through the Fourteenth Amendment.

Barker v. Wingo , 407 U.S. 514, 515 (1972). The Texas Constitution and Texas Code of

Criminal Procedure independently guarantee a speedy trial, but Texas courts look to the

federal courts to determine constitutional rights and apply the Barker test for a speedy-trial

analysis. Ervin v. State , 125 S.W.3d 542, 545 (Tex. App.-Houston [1st Dist.] 2002, no pet.)

(citing Harris v. State , 827 S.W.2d 949, 956 (Tex. Crim. App. 1992)); see Tex. Const. art.

I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 2005).

The Barker test requires that we consider (1) the length of the delay, (2) the reason

for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the

defendant. Barker , 407 U.S. at 530 ; Shaw v. State , 117 S.W.3d 883, 888-89 (Tex. Crim.

App. 2003). No single factor is necessary or sufficient to establish a violation of the

defendant's right to a speedy trial. Barker , 407 U.S. at 533 ; Shaw , 117 S.W.3d at 889 .

Under Barker , courts must analyze federal constitutional speedy trial claims by first weighing

the strength of each of the above factors and then balancing their relative weights in light

of "the conduct of both the prosecution and the defendant." Barker , 407 U.S. at 530 . None

of the four factors is "either a necessary or sufficient condition to the finding of a deprivation

of the right of speedy trial." Id. at 533 . Instead, they are related factors which must be

considered together along with any other relevant circumstances. Id. No one factor

possesses "talismanic qualities," thus courts must "engage in a difficult and sensitive

balancing process" in each individual case. Id.

In conducting a speedy-trial analysis under the Barker test, we review legal issues

de novo, but defer to a trial court's resolution of factual issues. Kelly v. State , 163 S.W.3d

722, 726 (Tex. Crim. App. 2005). (9)

Because appellant did not succeed on his speedy trial

claim, we must presume the trial court resolved any disputed fact issues in the State's favor,

and we must also defer to the implied findings of fact that the record supports. Zamorano

v. State , 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) (citing State v. Munoz , 991 S.W.2d

818, 821 (Tex. Crim. App. 1999)).

1. The Length of the Delay

We measure the first factor, length of the delay, from the time the defendant is

arrested or formally accused. Shaw , 117 S.W.3d at 889 ; Dragoo v. State , 96 S.W.3d 308,

313 (Tex. Crim. App. 2003) (citing United States v. Marion , 404 U.S. 307, 313 (1971)). The

length of delay is, to some extent, a triggering mechanism, so that a speedy trial claim will

not even be heard until passage of a period of time that is on its face unreasonable in the

circumstances. Doggett v. United States , 505 U.S. 647, 651-52 (1992); Barker , 407 U.S.

at 530 . "If the accused makes this showing, the court must then consider, as one factor

among several, the extent to which the delay stretches beyond the bare minimum needed

to trigger judicial examination of the claim." Doggett , 505 U.S. at 652 .

Appellant was arrested on October 14, 2002, was indicted on or about December 4,

2002, and tried (the second time) on February 9, 2004. Appellant contends the 16-month

delay between his arrest and trial was sufficiently lengthy to trigger a Barker speedy-trial

analysis. We agree. The 16-month delay between appellant's arrest and trial is

presumptively unreasonable. See Shaw , 117 S.W.3d at 889 (holding that "in general, delay

approaching one year is sufficient to trigger a speedy-trial inquiry"); Harris v. State , 827

S.W.2d 949, 956 (Tex. Crim. App. 1992) (noting that courts generally hold delays of eight

months or longer presumptively unreasonable). This delay does not necessarily mean that

there is a speedy-trial violation; rather, it triggers a Barker speedy-trial analysis. Ervin , 125

S.W.3d at 546 ; Harris , 827 S.W.2d at 956 . Once a presumptively unreasonable delay is

proven, the court considers, "as one factor among several, the extent to which the delay

stretches beyond the bare minimum needed to trigger judicial examination of the claim."

Shaw , 117 S.W.3d at 889 (quoting Doggett , 505 U.S. at 652 ). Here, the 16-month delay

was several months more than the minimum needed to trigger the inquiry. See Shaw , 117

S.W.3d at 889 ; Harris , 827 S.W.2d at 956 . This factor thus weighs in favor of finding a

speedy-trial violation.

2. The Reason for the Delay

In reviewing the second factor, the reasons justifying the delay, we assign different

weights to different reasons-some reasons are valid and serve to justify the delay, while

other reasons are invalid and do not serve to justify it. Shaw , 117 S.W.3d at 889 . The

State bears the burden to establish an excuse for the delay. Turner v. State , 545 S.W.2d

133, 137-38 (Tex. Crim. App. 1976); Parkerson v. State , 942 S.W.2d 789, 791 (Tex.

App.-Fort Worth 1997, no pet.).

Here, as mentioned above, appellant was arrested on October 14, 2002 and was

indicted on or about December 4, 2002. The initial trial setting was January 27, 2003;

however, on January 23, appellant filed his first motion for continuance along with a motion

requesting court appointed co-counsel and a motion requesting a court appointed

investigator. Appellant requested the continuance so that the trial court could have time to

review the two motions. The trial court reset the trial for March 25, 2003. On March 24,

2003, the trial court heard an oral motion for continuance by appellant. The reason for the

continuance was that the State submitted crime scene evidence for DNA testing and

appellant did not want to begin trial until the results of the testing were returned. The trial

court informed appellant that the results could take three months to be returned. Appellant

consented to the delay and the State joined the continuance. Appellant further expressed

that he would not assert speedy trial rights, per se, but did ask for, and obtain, a bond

reduction in return. Appellant was released on bond on or about September 10, 2003.

On August 19, 2003, appellant filed his motion to bar prosecution due to a violation

of his right to a speedy trial. In his motion, appellant stated that defense counsel contacted

the State on August 7, 2003 concerning the DNA test results and that the State informed

him that the results had been in since May 19, 2003. Appellant asserted that the State

violated his right to a speedy trial because it failed to inform him that the DNA results had

been in since May. The trial court denied appellant's motion after a hearing held on

September 19, 2003. The trial court then set trial for November 3, 2003.

On October 10, 2003, after complaining of lack of speedy trial, appellant filed yet

another motion for continuance due to defense counsel being out of town on a family

matter. The court granted the motion and trial was reset for November 17, 2003. On

November 7, 2003, appellant filed another motion for continuance. Appellant's counsel

stated he needed additional time to prepare for the case based on newly discovered

evidence and also requested the appointment of an expert. On November, 10, 2003, the

trial court entered an order denying this request for continuance. On November 13, 2003,

the trial court held a pretrial hearing. At the hearing, the State informed the court that

defense counsel was requesting that the court reconsider the order denying the

continuance. Defense counsel acknowledged that he was requesting reconsideration of the

denial of the continuance and that he was waiving any speedy-trial rights relating to this

delay. The court rescinded its order and reset the trial for January 20, 2004. Trial began

on January 20, however, due to an issue concerning one of the jurors, a mistrial was

declared. Trial was re-set and began on February 9, 2004.

Here, the State offered the trial court reasons to justify the 16-month delay between

appellant's arrest and second trial: appellant's four motions for continuance. (10) Given

appellant's multiple requests for continuance, the trial court could have reasonably

concluded that appellant himself was responsible for several months of the delay. The

one-month interval between appellant's indictment and first trial may not be counted against

the State, since the State was entitled to a reasonable period in which to prepare its case.

Shaw , 117 S.W.3d at 889 . The only delay arguably attributable to the State is the three-month period between May 19, 2003, when it received the DNA results, and August 7,

2003, when defense counsel was informed that the State had received the DNA results.

Because the record indicates that appellant caused and agreed to a significant amount of

the delay, the reasons for the delay weigh heavily against appellant.

3. The Defendant's Assertion of His Right

The third factor, the defendant's assertion of his right, considers whether the

defendant really desired a speedy trial. Shaw , 117 S.W.3d at 890 . "A motion to dismiss

notifies the State and the court of a speedy-trial claim, but a defendant's motivation in

asking for a dismissal rather than a prompt trial is, clearly relevant, and may sometimes

attenuate the strength of his claim." Ervin , 125 S.W.3d at 547 (citing Phillips v. State , 650

S.W.2d 396, 401 (Tex. Crim. App. 1983)). Here, ten months after his arrest, appellant filed

a motion to bar prosecution based on a violation of his right to a speedy trial. Further,

appellant did not request a trial-rather, he merely sought to have his case dismissed.

Appellant's request for a dismissal for lack of a speedy trial rather than a request for a

speedy trial weakens appellant's claim that the trial court denied him a speedy trial. See

Zamorano , 84 S.W.3d at 651 ; Phillips , 650 S.W.2d at 401 ; Parkerson , 942 S.W.2d at 791

(stating "[a]ppellant's request for a dismissal instead of a speedy trial weakens his claim

because it shows a desire to have no trial instead of a speedy trial."). Therefore, the third

Barker factor weighs against appellant.

4. Prejudice to the Defendant Resulting from the Delay

The final Barker factor focuses on whether the defendant suffered prejudice as a

result of the delay. Barker , 407 U.S. at 532 . Prejudice to a defendant is considered in light

of the interests that the right to a speedy trial is intended to protect: (1) to prevent

oppressive incarceration; (2) to minimize the defendant's anxiety; and (3) to limit the

possibility that the defendant's defense will be impaired. Id.

Here, appellant merely alleges that the 313 days he spent in jail amounts to

oppressive incarceration. However, the record does not indicate that appellant's defense

was impaired. (11) Further, appellant does not allege or offer any evidence that the delay

caused him any anxiety. See Shaw , 117 S.W.3d at 890 . This factor thus weighs against

finding a speedy-trial violation. See id.

5. Balancing the Barker Factors

We note that the delay was presumptively unreasonable, but under Barker the facts

weigh only slightly against the State. When coupled with appellant's multiple requests for

continuance, two of which were filed after he filed his motion to dismiss based on violation

of his speedy-trial rights, and his request for a dismissal rather than a speedy trial, we

conclude that the balance favors no speedy-trial violation. The trial court thus did not err

in denying appellant's motion to bar prosecution for failure to grant a speedy trial.

Appellant's fourth issue is overruled.

V.

By his fifth issue, appellant contends the State committed reversible error when it

called a witness to appear before the jury and that witness asserted his Fifth Amendment

privilege not to testify. Appellant contends the alleged error is reversible because "the

subject matter of the trial made it harmful."

The record reveals that the State granted the witness, Guadalupe Yanez, immunity.

A prosecutor may bind himself to an agreement for immunity. See Graham v. State , 994

S.W.2d 651, 656 (Tex. Crim. App. 1999). In doing so, the prosecutor agrees to refrain from

using particular evidence against the witness. See id . A witness who has been granted

immunity for his testimony does not have a valid basis for refusing to testify. See Coffey

v. State , 796 S.W.2d 175, 179 (Tex. Crim. App. 1990) (citations omitted). Because Yanez

had been granted immunity for his testimony, he did not have a valid basis for invoking his

Fifth Amendment right not to testify. Accordingly, the State had the right to compel Yanez's

testimony.

We next consider whether calling Yanez as a witness unfairly prejudiced appellant.

See Coffey , 796 S.W.2d at 177 n.4 (noting that it could have been error had the State

asked witness a series of damaging questions in such a way as to invite jury to assume

answers to each question would have been in the affirmative). Appellant relies on, among

others, Vargas v. State , 442 S.W.2d 686, 687 (Tex. Crim. App. 1969) and Washburn v.

State , 299 S.W.2d 706, 706 (Tex. Crim. App. 1956), to support his contention that the

proceeding prejudiced him. Vargas and Washburn are distinguishable from the present

case. See Perez v. State , 41 S.W.3d 712, 718-20 (Tex. App.-Corpus Christi 2001, no pet.)

(distinguishing Vargas and Washburn in a case with facts similar to the case before us).

In this case, Yanez had no valid Fifth Amendment privilege to claim. He refused to

testify and was found in contempt. Therefore, to the extent the State could have sought to

compel Yanez's testimony, appellant was not unfairly prejudiced. Further, unlike Washburn

and Vargas , the State asked no questions whatsoever of Yanez and did not comment on

Yanez's refusal to testify. See id. (12) Accordingly, we conclude appellant was not unfairly

prejudiced. Appellant's fifth issue is overruled.

VI.

In his sixth issue, appellant contends that he is entitled to a new trial because the

State introduced evidence that was inadmissible and prejudicial. Appellant is essentially

contending that the trial court abused its discretion in denying his motion for mistrial.

Hawkins v. State , 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004).

Specifically, appellant complains of testimony that he had been arrested in a

separate incident. The following testimony gave rise to appellant's complaint:

Q: [State] And how did you determine that he had information

relevant to the murder of Richard Reyes?

A: [Alvear] He - - he was at the same apartment. That day that he

was arrested [appellant] was also arrested. Defense counsel objected to the testimony as highly prejudicial and a violation of the motion

in limine, requested an instruction to disregard, and moved for mistrial. The trial court

immediately excused the jury and addressed appellant's objection to the testimony. The

trial court overruled appellant's objection and denied his motion for mistrial; however, the

court granted appellant's request for an instruction.

Mistrial is appropriate for only "highly prejudicial and incurable errors," and "may be

used to end trial proceedings when faced with error so prejudicial that 'expenditure of further

time and expense would be wasteful and futile.'" Id. ; Simpson v. State , 119 S.W.3d 262,

272 (Tex. Crim. App. 2003) (quoting Wood v. State , 18 S.W.3d 642, 648 (Tex. Crim. App.

2000)). The trial court promptly instructed the jury to disregard the objected to testimony.

See Ovalle v. State , 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) ("[O]rdinarily, a prompt

instruction to disregard will cure error associated with an improper question and answer.").

When a trial court instructs a jury to disregard certain testimony, we presume that the jury

follows the trial court's instructions. Ladd v. State , 3 S.W.3d 547, 567 (Tex. Crim. App.

1999); cf. Wood , 18 S.W.3d at 648 (noting that a trial court is required to grant a motion for

a mistrial only when the improper question is "clearly prejudicial to the defendant and is of

such character as to suggest the impossibility of withdrawing the impression produced on

the minds of the jurors"). After reviewing the record, we cannot conclude that the trial court

abused its discretion in denying appellant's motion for mistrial. (13) Appellant's sixth issue is

overruled.

VII.

In his seventh issue, appellant argues the State created a racially discriminatory

atmosphere at trial by referring to appellant as "white boy."

Appellant contends that, based on a boolean search, he was referred to as "white"

93 times during trial by witnesses, the State, and by the defense. However, appellant only

refers us to three instances in the reporter's record where the State, the defense, and

witness Albert Castillo use the term "white boy." The State also refers us to a couple of

other instances where defense counsel refers to appellant as "white guy" and "white boy."

As discussed in issue one above, one of the questions at trial was the in-court and

out-of-court identification of appellant. In addressing the issue of whether the line ups were

impermissibly suggestive, the State, the defense, and witnesses all used the term "white"

to identify appellant. Likewise, in questioning the witnesses, both the defense and the State

described appellant as "white" to discuss his identification as the murderer. Now, on appeal, appellant argues that the term "white" was used by the State to

insert blatant racial overtones during trial. However, in his discussion, appellant does not

extrapolate from the reporter's record how many times and in what manner the State

referred to appellant as "white." We find that appellant's argument, that appellant was

referred to as "white" 93 times or that the State "inserted a callous racial divisiveness into

this case," is not supported by the record. We further hold that appellant has failed to

develop a clear and concise argument for the contentions made and has failed to support

his argument with appropriate citations to authority and to the record. Tex. R. App. P.

38.1(h). (14) Accordingly, appellant's seventh issue is overruled.

The judgment of the trial court is affirmed.

_________________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 31st day of August, 2006.

1. Specifically, appellant argued that the problem with the lineup was that, although it was in black and

white, it contained five Hispanic suspects and only one "white" person.

2. State's Exhibit Number "4A" and Defense Exhibit Number "17."

3. We note that appellant's argument focuses on whether there was manifest necessity to declare a

mistrial. His argument almost entirely overlooks the exception to the rule providing that jeopardy does not bar

retrial if the defendant consents to mistrial. Appellant's brief delineates the State's objection to the juror and

its willingness to proceed with eleven jurors but fails to acknowledge defense counsel's objection to the juror

and unwillingness to proceed with only eleven jurors. More importantly, he fails to acknowledge that the

defense consented to mistrial.

4. Alternate jurors had not been selected for this proceeding.

5. Appellant does not contend that prosecutorial misconduct forced a mistrial.

6. Normally, this sort of newly available evidence is presented to an appellate court in one of two ways.

First, the evidence may have developed during a hearing on defendant's motion for new trial. The evidence

would then be considered part of the record because it evolved from a defendant's trial. See Farris v. State ,

712 S.W.2d 512 , 516 n.3 (Tex. Crim. App. 1986). Second, the evidence may have become available in a post

conviction writ of habeas corpus situation. See id. Both of these proceedings allow the trial court an

opportunity to either order a new trial or recommend that this Court order a new trial. Id. The trial court does

not have an opportunity to make such an order or recommendation when supplementing the record. Id.

7. Detective Alvear gave similar testimony, stating that there existed an agreement to dismiss

Baraona's pending misdemeanor charges, but that there was no agreement in regards to his pending felony

charge.

8. This question had been previously asked and answered. After objection by the State, the trial court

instructed defense counsel to "[m]ove on to something else."

9. "The balancing test as a whole . . . is a purely legal question. Legal questions are reviewed de

novo." Zamorano v. State , 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) (citing Johnson v. State , 954 S.W.2d

770, 771 (Tex. Crim. App. 1997)).

10. We find it noteworthy that appellate counsel completely failed to mention in his brief that appellant

himself requested four continuances. Instead, counsel falsely asserts that the State filed a motion for

continuance on March 24, 2003, and then fails to account for the remainder of the complained-of delay which

just so happens to be attributable to appellant.

11. Appellant alleges the delay allowed the State to improve its position with its star witness Baraona.

However, appellant has failed to develop any meaningful argument in support of this position and has failed

to direct our attention to any evidence in support of the contention. See Tex. R. App. P. 38.1(h).

12. The record reflects that Yanez plead the "Fifth" as soon as he was called as a witness.

Immediately after, the court retired the jury and proceeded to have a lengthy discussion with the State and

defense counsel. The court advised Yanez he had no right to plead the Fifth and that he would be held in

contempt if he refused to testify. Yanez declined to testify and opted to be held in contempt. The jury was

then called back into the court room, at which time a new witness was called to the stand.

13. Appellant also argues that the issue is one of constitutional dimension requiring reversal. However,

appellant has failed to develop any meaningful analysis or argument in support of this argument. Accordingly,

we do not address this contention. See Tex. R. App. P. 38.1(h).

14. We note that much of appellant's brief on this issue contains citations to the Texas Constitution

as well as the contention that "the blend of Art. 3a, Art. 19, and Art. 29, create a unique situation for

constitutional error . . . ." However, appellant has failed to apply the law to the facts and has failed to develop

any meaningful argument in support of his contention. Accordingly, we do not address this contention. Tex.

R. App. P. 38.1(h).