Balderas v. State (517 S.W.3d 756, 2016)

OPINION

Keasler, J.,

delivered the opinion of the Court,

in which Meyers, Hervey, Richardson, Yeary, and Newell, JJ., join.

In February 2014, a jury convicted Juan Balderas of capital murder committed in December 2005. Based upon the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071, sections 2(b) and 2(e), the trial judge sentenced Balderas to death. Direct appeal to this Court is automatic. After reviewing Balderas’s nine points of error, we find them to be without merit. Consequently, we affirm the trial court’s judgment and sentence of death.

STATEMENT OF FACTS

In 2004, the victim, Eduardo Hernandez, became a member of the Barrio Tres Alief (“BTA”), a regional subset of the La Terc-era Crips (“LTC”) street gang in Houston. Balderas, a long-time member of the LTC gang and one of the founding members of the BTA subset, had introduced Hernandez to the gang. Initially, the other LTC members liked Hernandez, and Hernandez was proud to be part of the gang. LTC member Israel Diaz befriended Hernandez, and for a while Hernandez lived with Diaz. However, in late 2004, this friendship soured after Diaz let Hernandez borrow a vehicle that Diaz had stolen the week before. Police officers stopped and arrested Hernandez while he was driving the stolen vehicle. After Hernandez informed them that he had borrowed the vehicle from Diaz, they arrested Diaz for aggravated robbery.

Diaz bonded out of jail in April 2005. He was angry with Hernandez for “snitching” on him. He “lectured” Hernandez about giving his name to the police, and Hernandez promised that he would not testify against Diaz in the aggravated robbery case. Balderas’s defense counsel argued at trial that Hernandez’s snitching gave Diaz a motive for murder, but Diaz denied that he wanted to kill Hernandez. Diaz testified that he knew that two other witnesses could identify him as the thief and that police had found his fingerprints on the stolen vehicle; therefore, preventing Hernandez from testifying would not have helped him avoid the robbery conviction. Also, because of the pending robbery case, Diaz knew that he would be the first suspect if anything happened to Hernandez. Diaz testified that even though he personally did not want to kill Hernandez, other LTC members viewed Hernandez’s conduct as being disrespectful of the gang and thought that Hernandez needed to be punished. Diaz testified that he asked those members to wait until his trial was over before they took action against Hernandez.

After the snitching incident, Hernandez stopped associating with other LTC gang members. He also moved out of his family home so that LTC members could not easily locate him. In August or September 2005, he began dating Karen Bardales (“Karen”). Hernandez and Karen spent much of their time “hanging out” in an apartment belonging to one of Karen’s friends, Durjan Decorado, who was not in a gang. Karen’s older sister, Wendy Bar-dales (“Wendy”), and Wendy’s boyfriend, Edgar Ferrufino, also spent much of their time in that apartment. Karen and Wendy’s friends, including members of several rival gangs, would visit them there. Hernandez socialized with those friends.

Over the next few months, LTC gang members heard rumors that Hernandez was associating with members of rival gangs and flashing rival gangs’ hand signs, which constituted acts of disloyalty and disrespect against the LTC gang. After seeing images of Hernandez on social media confirming these rumors, some indignant LTC members urged the gang to take action against him. Three or four days before Hernandez’s killing, senior members of the gang called a meeting. Those in attendance agreed to shoot and kill Hernandez. Although they did not expressly select an individual to kill him, everyone understood that Hernandez was Balderas’s responsibility because he had introduced Hernandez to the gang.

On the afternoon of December 6, 2005, Wendy, Ferrufino, Karen, and Hernandez were hanging out in Decorado’s apartment. Jose Vazquez, a senior LTC gang member, stopped by to talk to Hernandez. Karen began saying disrespectful things about the LTC gang, which upset Vazquez. Vasquez wanted Hernandez to leave the apartment with him, but Hernandez refused. Hernandez was visibly upset after Vazquez left. He told Karen that he was worried that something was going to happen. Later, Hernandez left with his sister to go shopping and have dinner. He and Karen reunited at the apartment complex that night.

Around 9:45 p.m., Wendy, Ferrufino, Decorado, and Decorado’s cousin were in Decorado’s apartment. Ferrufino and Wendy were playing a video game in the living room. As Karen and Hernandez approached the apartment, Karen noticed fresh LTC gang graffiti on the exterior wall. Immediately after entering the apartment, they heard gunshots, and then the front door opened and a gunman ran into the apartment. Hernandez dropped to the floor and pulled Karen down with him, positioning himself between Karen and the gunman. Decorado and his cousin fled to the bedrooms, and Ferrufino crouched next to the television stand. Wendy, who was sitting on the floor between the couch and the television, froze. She could see the gunman as he entered the apartment, and her eyes followed him until he left.

The gunman fired his gun as he ran around the living room. Wendy saw that he was wearing khaki pants and a black hood-ie, with the hood pulled up over his head. She got a good look at his face when his hood fell down as he passed her. The gunman paused in front of Ferrufino, who asked him not to shoot. He did not shoot Ferrufino and began to move back toward the entryway, but then he stopped and stood over Hernandez. He shot Hernandez in the back and head multiple times. Karen, who was lying face-down next to Hernandez, did not see the gunman’s face, but when the gunman extended his arm toward Hernandez, Karen could see that he was wearing a black sweater. After shooting Hernandez at least nine times, the gunman left. Ferrufino called 9-1-1.

Around that time, Diaz heard from another LTC gang member that “they” had “found [Hernandez,]” which Diaz understood to mean that Hernandez was about to be (or had just been) killed. He and other LTC members gathered across the street from the apartment complex. They could see an ambulance and police cars in the parking lot. Diaz saw Balderas waiting near the apartment complex. Balderas was wearing a dark blue or black sweater-like top and khakis. When Balderas noticed Diaz and the others, he crossed the street to join them. Balderas hugged everyone and seemed “joyful” as he reported that he “finally got him.” Diaz saw Balderas change the magazine of a silver handgun. Diaz recognized the handgun as one of two silver guns that Balderas regularly carried.

That night, law enforcement officials took Wendy, Karen, and Ferrufino to the police station to give witness statements. In the early morning hours of December 7, Wendy gave a statement that was committed to writing by Officer Thomas Cunningham. Wendy stated that she had never seen the gunman before, and she described him as a “skinny Hispanic guy dressed in a black hooded sweatshirt type jacket.” She also stated that he had a “dark birth mark” , on his face but she could not remember where.

Around 10:30 p.m,, Sergeant Norman Ruland drove to Wendy’s apartment to show her a photo array of six suspects that included Diaz but not Balderas. Wendy did not identify the gunman, but she recognized Diaz. She stated that he was a friend of Hernandez who went by the street name “Cookie,” and that she was sure he was not the gunman. She told Ruland that the gunman had a dark mark on his cheek that did not resemble the scars that were visible on Diaz’s face.

On December 12, Ruland returned to Wendy’s apartment with a second photo array that included Balderas’s photograph. Wendy immediately pointed to Balderas, saying that she recognized him as a friend of Hernandez and Diaz who went by the street name “Apache.” She also stated that he “looked like the shooter.” When Ruland asked Wendy if Balderas was the shooter, she reiterated that Balderas’s “face looked exactly like the shooter’s face.” She signed and dated Balderas’s photograph to confirm her identification. Although Ruland felt that Wendy was confident in her identification of Balderas as the gunman, he was confused by her verbal phrasing in making the identification. Therefore, the following day, he returned to Wendy’s apartment to seek clarification. On this occasion, Wendy expressly identified Bald-eras as the gunman, stating that she was positive in her identification. She wrote a sentence in Spanish on the back of the lineup to confirm her positive identification. Based on this identification, police obtained a warrant for Balderas’s arrest.

On December 16, Officer Rick Moreno drove to an apartment complex where he watched for Balderas and another LTC gang member, Rigalado Silder, and waited for the assistance of a SWAT team. After Moreno had been watching the complex for about 25 minutes, he observed Balder-as and Silder leave an upstairs apartment and start down the stairs. Each man was carrying a large box, and Balderas had a black bag slung over his shoulder. When they saw the SWAT team arriving, Balder-as and Silder set everything down and started running. Moreno caught Silder in the apartment complex, while the SWAT team pursued Balderas into the neighborhood and caught him as he tried to hide under a car. Moreno saw that the boxes and bag contained firearms and other weapons, bullet-proof vests, identification holders, magazines, and ammunition. One of the weapons recovered from the box that Balderas had been carrying was a handgun that was later identified, through ballistics testing, as the murder weapon in Hernandez’s killing. A shell casing from a semiautomatic handgun was recovered from Balderas’s right rear pants pocket.

SUFFICIENCY OF THE EVIDENCE

In his first point of error, Balderas asserts that the evidence is insufficient to prove his guilt. Specifically, he argues that Wendy Bardales, the only eyewitness who identified him as the gunman, was not credible and testified falsely. He points to inconsistencies between her statements to police and her trial testimony, as well as ways in which her description of the gunman did not accurately describe Balderas. Balderas also alleges that Wendy’s statements to police evolved over time: first, she did not recognize the gunman and had never seen him before; then, upon viewing the photo array, she immediately recognized Balderas, whom she had known for several months, but she was not sure that he was the gunman; and finally, she confidently identified Balderas as the gunman.

In assessing the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, any rational juror could have found the essential elements of the crime beyond a reasonable doubt. “Our review of ‘all of the evidence’ includes evidence that was properly and improperly admitted.” “The reviewing court must give deference to ‘the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.’ ” Each fact need not point directly and independently to a defendant’s guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.

The State may prove a defendant’s identity and criminal culpability by either direct or circumstantial evidence, coupled with all reasonable inferences from that evidence. The jury is the sole judge of the credibility and weight to be attached to witness testimony. When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination. Because we will not second-guess the jury’s assessment of the credibility and weight of witness testimony, and because we defer to the jury’s resolution of conflicting inferences, Balder-as’s allegations that Wendy’s testimony was false and not credible play no part in our review of the sufficiency of the evidence.

In this case, Balderas was tried under an indictment that alleged, in relevant part, that he, on or about December 6, 2005, “while in the course of committing or attempting to commit the burglary of a habitation owned by Durjan ‘Rata’ Decora-do and Wendy Bardales, intentionally cause[d] the death of Eduardo Hernandez by shooting Eduardo Hernandez with a deadly weapon, namely a firearm.” A person commits murder when he “intentionally or knowingly causes the death of an individual.” A person commits burglary if, without the effective consent of the owner, he enters a building not then open to the public or a habitation with intent to commit a felony, theft, or assault; or he enters a building or habitation and commits or attempts to commit a felony, theft, or an assault. An “owner” is a person who has possession of a property or a greater right to possession of a property than the actor.

“An unlawful entry into a habitation with the intent to commit murder will satisfy the burglary element of a capital murder charge.” Further, “[i]t is both a common-sense inference and an appellate presumption that a person intends the natural consequences of his acts, ... and that the act of pointing a loaded gun at someone and shooting it toward that person at close range demonstrates an intent to kill.”

Viewed in the light most favorable to the verdict, Wendy’s eyewitness testimony and other evidence established that Balderas committed a burglary when he entered Decorado’s apartment without De-corado’s or Wendy’s effective consent with the intent to murder Hernandez, and he committed murder when he intentionally caused Hernandez’s death by shooting him with a firearm. Wendy identified Balderas as the gunman who opened the front door, entered the apartment, and shot Hernandez. Karen’s testimony, together with the medical examiner’s testimony, the autopsy, and the ballistics evidence, established that the gunman shot Hernandez in the head and back at least nine times. Karen’s description of the gunman’s clothing, and Diaz’s description of Balderas’s clothing immediately after the offense, were consistent with Wendy’s description of the gunman’s clothing.

Further, Diaz testified that while the ambulance was still at the apartment complex, Balderas approached him and other LTC gang members near the complex, stating that he had “finally got him” as he changed the magazine of his handgun. Ballistics evidence and Officer Moreno’s testimony confirmed that the murder weapon was recovered from the box that Balderas discarded when he ran from the police ten days after the offense. A rational jury could have determined from all of this evidence that Balderas, in the course of committing the offense of burglary, intentionally caused Hernandez’s death. Thus, the evidence was sufficient to prove that Balderas was guilty of capital murder. Point of error one is overruled.

DENIAL OF SPEEDY TRIAL

In point of error two, Balderas asserts that the trial court reversibly erred when it denied his motion to dismiss the indictment for lack of a speedy trial. Specifically, he complains that the case “languished on the docket for eight years” following his arrest and indictment.

“The Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, guarantees a speedy trial to an accused.” The Supreme Court has listed four factors that a court should consider in addressing a speedy-trial claim: (1) the length of delay, (2) the State’s reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant because of the length of delay. If the defendant can make a threshold showing that the interval between accusation and trial is “presumptively prejudicial,” then a court must consider each of the remaining Barker factors and weigh them.

When reviewing the trial court’s application of the Barker test, we give almost total deference to the trial court’s historical findings of fact that the record supports, and we draw reasonable inferences from those facts necessary to support the trial court’s findings. A reviewing court should not consider in its deliberations record evidence that was not before the trial court when it made its ruling. Review of the individual Barker factors necessarily involves fact determinations and legal conclusions, but the balancing test as a whole is a purely legal question that we review de novo The record does not contain any written fact findings.

In general, courts deem delay approaching one year to be “unreasonable enough to trigger the Barker enquiry.” The extent to which the delay exceeded the minimum needed to trigger judicial examination factors into our assessment of the first Barker factor. For example, an interval of three and one-half years “stretched far beyond the minimum needed to trigger the enquiry” and weighed heavily in favor of finding a violation of the speedy trial right.

In this case, Balderas was arrested in December 2005 and tried in March 2014— an interval of more than eight years. The length of this delay is sufficient to trigger the Barker inquiry. Further, because this delay stretched far beyond the minimum needed to trigger the inquiry, the first Barker factor weighs heavily in favor of finding a violation of Balderas’s speedy-trial right.

When we assess the second Barker factor—the State’s reason for the delay—we assign different weights to different reasons. Some reasons are valid and serve to justify an appropriate delay. Deliberate delay intended to “hamper the defense” weighs heavily against the State, while more neutral reasons, such as negligence or overcrowded courts, weigh less heavily. Additionally, we consider “whether the government or the criminal defendant is more to blame for th[e] delay.” Delay caused by either the defendant or his counsel weighs against the defendant. “In the absence of an assigned reason for the delay, a court may presume neither a deliberate attempt on the part of the State to prejudice the defense nor a valid reason for the delay,”

At the hearing on Balderas’s motion to dismiss for lack of a speedy trial, former prosecutor Spence Graham testified that he assumed responsibility for this case when he became the felony chief prosecutor for the 179th District Court in May 2009. His caseload included three cases against Balderas: this case, a second capital murder, and an assault. Balderas’s file included six to eight banker’s boxes full of offense reports, documents, and photographs. Through his review of the State’s investigation of the LTC gang’s activities, Graham was aware that Balderas was connected in some way to at least eleven homicides. The District Attorney had not yet decided whether to seek the death penalty in this case.

Graham did not know the details of the State’s efforts to take this case to trial before he took responsibility for it. However, the paperwork he received when he assumed responsibility for the case reflected that the State’s attorneys and investigators had done quite a bit of work on it. Someone had prepared charts of various LTC gang-related cases, including this one, that mapped out the different offenses, how the different pieces of evidence tied in with them, and which defendants were associated with which offenses.

In addition, the clerk’s record reflects activity in this case from December 16, 2005 to May 2009—when Balderas was arrested to when Graham became the prosecutor, respectively, Specifically, the probable cause hearing took place on April 12, 2006. The magistrate found probable cause for further detention and set no bond, and Balderas requested the appointment of counsel. The initial indictment was also handed down on that date. Defense counsel signed “Agreed Settings” concerning the three charges pending against Balderas in August 2006 and January 2007, as well as two Agreed Settings in 2008.

Graham noted that, when he became the prosecutor in May 2009, this case was not the oldest case on the trial court’s docket, which included 21 capital murders and over 1,000 pending cases, approximately 200 of which were already set for trial. The trial judge took judicial notice that, when her predecessor took the bench on January 1, 2009, the court’s docket had 1,091 cases, with a jury trial docket of 155 cases.

Graham testified that, shortly after he became the prosecutor, he contacted defense counsel and sent them a “mitigation letter,” requesting any mitigating information that might assist the District Attorney in deciding whether to seek the death penalty. He stated that the parties appeared in the trial court for status hearings every couple of months. At these hearings, defense counsel never indicated that they were ready for trial. Rather, they represented that they were still obtaining statements from Balderas’s family members in Mexico and investigating Balderas’s background. In addition, defense counsel told Graham that they were trying to persuade Balderas to let them offer a guilty plea in exchange for a sentence of life without parole.

According to Graham, defense counsel never indicated that they were ready to set this case for trial. Rather, counsel repeatedly asked Graham to hold off presenting the case to the District Attorney for a decision concerning the death penalty until they could deliver a mitigation packet and persuade Balderas to let them offer a plea deal. Sometime in 2009, the trial court pressed for a resolution of the case, and a trial date was set. However, that date passed with no trial. Defense counsel delivered a mitigation packet to Graham in late 2009 or early 2010, but counsel also reported that they were still investigating mitigating evidence and negotiating with Balderas.

The trial court set this case for a second trial date of April 15,2011, but the trial did not begin on that date. Our review of the clerk’s record reflects that on that date, the parties agreed to a new setting of June 2, 2011. Graham stated that he could have taken this case to trial “as a nondeath” on April 15, 2011, because his two main witnesses were ready and the facts of the offense were “very simple.” However, Graham “did not think it was appropriate to go to trial on th[is] case as a nondeath.” This decision was due, in part, to a discovery that Graham made while preparing for the April 15 trial date. Specifically, he obtained Balderas’s disciplinary records which revealed that, in 2010, Balderas had been disciplined for an aggravated assault on a public servant that he committed while confined in maximum security at the Harris County Jail. Graham testified that he did not discover this incident until he obtained Balderas’s jail records in 2011 because the reporting officer did not contact him about it and it had not resulted in criminal charges. Graham needed additional time to investigate that incident and to communicate the situation to his supervisors in the District Attorney’s Office who would make the “decision to ultimately seek death.” Graham testified that the 2010 assault “really changed things for the wors[e]” for Balderas and “weighed heavily” in the District Attorney’s decision to seek the death penalty. On April 28, 2011, Graham filed a notice of the State’s intention to seek the death penalty.

Our review of the clerk’s record shows that on June 2, 2011, the parties agreed to a new trial date of August 9, 2012. Graham stated that defense counsel continued to represent that they were urging Balderas to let them propose a guilty plea in exchange for a life sentence, but they never made such a proposal to Graham. Graham was reassigned to the Public Integrity Division of the District Attorney’s Office in late 2011.

In January 2012, when Paula Hartman replaced Graham as the felony chief prosecutor for the 179th District Court, this case was still set for an August 2012 trial date. Hartman testified that she spent several months “get[ting] up to speed on the case in order to be ready for trial,” and she would have been prepared to try this case by August 2012. However, in May 2012, defense counsel filed a motion for a continuance, asserting that the defense’s investigation into both the guilt and punishment-phase issues could not be concluded by August, and that, without a continuance, the defense would be “substantially prejudiced in its ability to present a defense” at both phases of the trial. Although the typed order granting the continuance was titled, “Order on Unopposed Motion for Continuance,” the trial judge made a hand-written note under his signature, stating that Balderas’s motion was “granted over strong opposition of the State.” The trial date was reset to February 2013.

The trial judge left the bench in December 2012, and the judge who ultimately presided over the trial took the bench in January 2013. Further, Hartman was reassigned to the Consumer Fraud Section of the District Attorney’s Office in January 2013, and the prosecutor who ultimately took this case to trial assumed responsibility for it at that time. When the new judge took the bench, the 179th District Court’s docket had 425 cases, with 44 jury trials set. With the agreement of both parties, the judge reset this case to September 2013. The case was reset again from September 2013 to January 2014 due to the illness of defense counsel, and the State did not agree to that continuance.

The State’s inability to fully explain the delay from December 2005 until Graham became the chief prosecutor in May 2009 is troublesome, but the fact that defense counsel, even in 2009, requested additional time to investigate the case and negotiate with Balderas is some evidence that the defense played a role in the pre-2009 delay and would not have been ready for trial before then. Further, Graham perceived that other State’s attorneys and investigators had done a substantial amount of work on this case before he was assigned to it. The investigation of this offense was intertwined with the investigation of Bald-eras’s other offenses, as well as other LTC gang-related offenses.

From May 2009 until the final resetting to the January 2014 trial date, defense counsel repeatedly urged the prosecutors and the trial court to delay the trial. Defense counsel represented as late as May 2012 that the defense’s investigation was incomplete and that the defense would be “substantially prejudiced in its ability to present a defense” if the court did not grant a continuance. It appears that the State had acquiesced in the defense’s previous requests for delays, but the State strongly opposed this motion for continuance. Further, although the State acquiesced in a delay in January 2013 because the newly-assigned judge and prosecutor were unfamiliar with the case, the State opposed the defense’s request for a continuance in September 2013. This factor weighs in favor of the State.

The third Barker factor—the defendant’s assertion of his right to a speedy trial—is entitled to strong evidentiary weight in determining whether the defendant has been deprived of that right. A defendant’s lack of a timely demand for a speedy trial indicates strongly that he did not really want one. The longer the delay becomes, “the more likely a defendant who wished a speedy trial would be to take some action to obtain it.” Thus, “inaction weighs more heavily against a violation the longer the delay becomes.” In this case, defense counsel expressly requested a substantial portion of the delay. From 2009 to 2013, defense counsel consistently sought additional time for investigation and negotiation. Not until January 29, 2014—after the jury had been selected— did defense counsel assert the right to a speedy trial by filing a “Motion to Dismiss for Lack of a Speedy Trial.” It is also significant that defense counsel sought to dismiss the indictment rather than hasten the trial. This factor weighs in favor of the State.

The fourth Barker factor focuses on prejudice to the defendant because of the length of delay. To analyze prejudice, we consider three interests of defendants that the Speedy Trial Clause was designed to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. The last interest is the most important because the fairness of the criminal-justice system is distorted when a defendant is unable to adequately prepare his defense. A defendant has the burden to make some showing of prejudice, but a showing of actual prejudice is not required. Excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or identify.

At the hearing on his motion to dismiss for lack of a speedy trial, Balderas testified concerning the fourth Barker factor. He noted that he had been in continuous custody since his arrest on December 16, 2005, and he had never been granted bond. Balderas asserted that he did not know that he had the right to a speedy trial until he read about his case in the newspaper in April 2013, but he also acknowledged that he had not filed his pro se motion for speedy trial until January 17, 2014, after the jury had been selected.

Balderas testified that, if he had not been in custody, he would have continued his education. He stated that he graduated from high school in the summer of 2005, and before his arrest, he had begun completing financial aid paperwork so that he could enroll in 2006 in an architectural drafting program at Westwood College. Since his arrest, he had been taken to court once or twice a month. He testified that the extended incarceration had negatively affected his mental, physical, emotional, and spiritual well-being. He had lost several family members while in jail and had been unable to attend their funerals. He had not been employed or earning income. He had lost contact with family members who did not want to “visit an inmate accused of multiple capital murders.” Balderas testified that there were nights when he could not sleep, and he had been “put on medication.” He had considered suicide. He still had a girlfriend who he had been dating since 2002, but they did not have contact visits.

Balderas testified that his brother passed away in 2012. His brother “would be here to testify for [him]” if he were alive. Balderas acknowledged that he had two other brothers living in the Houston area. However, his deceased brother “had certain knowledge about [Balderas’s] past that [his] other brothers did not have,” having experienced “some of the same abuse from family members that [Balder-as] did.” That abuse led his brother to commit suicide in 2012.

We presume that the lengthy delay here adversely affected Balderas’s ability to defend himself. The evidence of the disruption to Balderas’s educational plans and personal life caused by his lengthy pretrial incarceration, as well as his anxiety and concern over the pending charges, is also probative of prejudice. On the other hand, Balderas’s argument regarding the disruption of his life plans is undercut by the fact that he was being held on other serious charges. Also, Balderas testified that his brother could have testified about the sexual abuse that he and Balderas had suffered if the trial had taken place sooner. However, when the trial court made its ruling, the sexual nature of abuse was not before it; thus, we will not consider it on appeal because it was not at issue before the trial court. With that being said, however, the fourth Barker factor arguably weighs in favor of Balderas.

Having addressed the four Barker factors, we must now balance them. “[Cjourts must apply the Barker balancing test with common sense and sensitivity to ensure that charges are dismissed only when the evidence shows that a defendant’s actual and asserted interest in a speedy trial has been infringed.” Weighing in favor of finding a violation of Bald-eras’s speedy trial right are the facts that the delay was excessive and that Balderas offered some evidence of prejudice resulting from the delay. Weighing against finding a violation is the fact that the defense, citing the need for additional time to conduct investigations and negotiations, requested most of the delay. Any prejudice to Balderas was extenuated by his role in requesting the delay. Further, Balderas did not assert his speedy trial right until after jury selection, indicating that he really did not want a speedy trial. We hold that the weight of the four factors, balanced together, is against finding a violation of Balderas’s right to a speedy trial. Point of error two is overruled.

ASSISTANCE OF INTERPRETER

In point of error three, Balderas asks: “Does a criminal defendant have a Sixth Amendment right under the United States Constitution to confront his accuser in the English language where the witness speaks, understands, and is fluent in English?” He asserts in his supporting argument that the appointment of a Spanish-language interpreter during his cross-examination of Wendy was improper under Article 38.30 and denied him his Sixth Amendment right to confront his accuser because Wendy spoke “perfect English.” Balderas’s entire point of error is multifarious because he bases it on several legal theories, and we could reject it for that reason. However, we will address it in the interest of justice.

Balderas argues that the appointment of an interpreter was improper because Article 38.30 does not allow a trial court to appoint an interpreter when a witness understands and speaks English. However, Balderas reads too much into Article 38.30. Article 38.30(a) describes the circumstances in which a trial court must appoint an interpreter, but it does not proscribe the appointment of interpreters in other situations:

When a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, [and] it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for the person charged or the witness.

Article 38.30 is silent regarding situations in which a person charged or a witness arguably understands and speaks some English. Balderas does not direct us to any cases that support construing Article 38.30’s silence as a prohibition on the appointment of an interpreter in such situations, and we have found none. We decline to adopt such a construction of Article 38.30 in this case. Thus, the trial court’s appointment of an interpreter in this ease was not improper under Article 38.30(a).

Balderas also argues that, if a trial court does not abuse its discretion by refusing to appoint an interpreter when the record shows that a witness or defendant possesses sufficient fluency in English to understand and participate in the proceedings, then the trial court necessarily abuses its discretion by appointing an interpreter under the same circumstances. In support of his assertion, Balderas relies on cases applying Article 38.30(a), in which appellate courts have concluded that a trial court did not abuse its discretion by declining to appoint an interpreter. Balderas’s all-or-nothing reasoning is not only logically unsound, but also misapprehends the abuse-of-discretion standard of review. It is unreasonable to conclude that the trial court abused its discretion by appointing an interpreter simply because the court might not have abused its discretion if it had refused to do so.

Balderas devotes most of his supporting argument to his assertion that the trial court’s appointment of an interpreter violated his Sixth Amendment right to confrontation. He reasons that Wendy “spoke perfect English,” and therefore the interpreter served as a “shield” between the witness, the parties, and the jury. Balderas alleges that, because Wendy was allowed to testify in Spanish, the jury could not adequately assess her demeanor and manner. He further complains that the State used the interpreter “to hide [Wendy’s] biased and untruthful demeanor and to explain the inconsistencies in her testimony as compared to the physical evidence.” In oral argument before this Court, Bald-eras added that the use of an interpreter prevented defense counsel from employing cross-examination tactics such as “rapid-fire questioning.”

Balderas asserts that the use of an unnecessary interpreter was particularly harmful in this case because the jury’s assessment of Wendy’s credibility “meant the difference between a guilty verdict and an acquittal.” In support of this argument, Balderas notes that Wendy was the sole witness who identified him as the gunman. He also points out that, during deliberations, the jury twice requested a “read back” of Officer Ruland’s testimony concerning his opinion of Wendy’s credibility. Balderas appears to mean that the jury’s repeated requests for this testimony signify that Wendy’s credibility was a very important issue to the jury.

The Confrontation Clause gives a criminal defendant the right “to be confronted with the witnesses against him.” “[I]t is that personal presence of the defendant and the right to ask probing, adversarial cross-examination questions that lies at the core of an American criminal trial’s truth-seeking function.” An attack on a witness’s credibility may be “effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.” Defense counsel should be permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, can appropriately draw inferences relating to the reliability of the witness.

Wendy, who was twenty-four years old at the time of trial, testified on direct examination that she began learning English when, at the age of twelve, she moved with her mother and sister to the United States from Honduras. She and her family spoke Spanish at home. Wendy learned English in some of her classes at school, but she did not attend school regularly. She dropped out in the ninth grade, when she was sixteen or seventeen years old. At the time of trial, Wendy still lived with her mother. They worked together, cleaning houses. Wendy testified that she thought in Spanish, so she had to translate “in [her] mind” when speaking English. She stated that she was sometimes unable to communicate “exactly what [she] mean[t]” in English.

Balderas filed a “Motion to Compel Witness to Provide Cross-Examination Testimony in the English Language,” asserting that Wendy would use the interpreter as a shield to cover up her deception and that the use of an interpreter violated his rights to confrontation, cross-examination, and due process. The trial court held a hearing on this motion outside the jury’s presence. During the hearing, the prosecutor acknowledged that Wendy could speak English but also stated that Wendy would be “more comfortable” testifying in Spanish. Balderas offered an audio recording of the conversation in which Wendy identified Balderas as the gunman for the second time. Balderas asserted that this recording would demonstrate Wendy’s fluency in the English language. The court admitted this recording “for the limited purposes of this hearing.”

The judge agreed with Balderas that Wendy’s “comfort” in testifying did not outweigh his right to confrontation, but she concluded that the jury would get a “more accurate view” of Wendy’s testimony if she testified through an interpreter. Specifically, the judge stated:

[T]he record, I think, will speak for itself that there is an inherent language barrier that was evident to the Court, just in phrasings on the hearing that was conducted outside the presence of the jury yesterday [on Balderas’s motion to suppress Wendy’s identification of him] and it is my view that the jury will get an accurate—a more accurate view of Ms. Bardales’[s] testimony if allowed through a translator. So the motion is overruled.

The day before Balderas filed his motion to compel cross-examination without an interpreter, Wendy had testified through an interpreter at the hearing on Bardales’s motion to suppress her identification of him as the gunman. She testified that, even though she positively identified Bald-eras as the gunman the first time that Ruland showed her the lineup containing his photograph, Ruland told her that he wanted to show her the lineup a second time “to make .sure that [she] was sure.” Wendy stated that she thought that there was a lack of communication between them and that they could not understand each other very well. When they met again, she told Ruland that she knew she had identified the right person from the photo lineup. Wendy also testified that, when she described the gunman in her statement to Cunningham, she did not know how to say “mole” or “birth mark” in English, and she would not have been able to distinguish between these terms without the aid of an interpreter. She did not recall using either term in her description of the gunman.

In addition, Sergeant Ruland testified at that hearing that it appeared to him that English was Wendy’s second language. Also, although he had not noticed a language barrier during most of their conversations, he came to suspect that his confusion over what Wendy said when she first identified Balderas as the gunman was the result of a language barrier:

Q You stated that you were a little unclear or confused about what she had told you. Did you ever consider the fact that she may not have been a fluent English speaker?

AI did.

Q Did you?

A Somewhat.

Q Did you do anything to ascertain whether or not she spoke English well?

A Just by conversing with her. We could hold a conversation. I could tell—it appeared to me that maybe it was her second language.

Q And why do you say it appeared to be her second language?

A Just accent and some of the, the phrasings I would say.

Q Did you ever ask her if she felt that she needed an interpreter?

AI did not.

* * *

Q Is it common that—in your experience have you—well, have you had the opportunity to speak to few or many people for whom English is a second language?

A Many.

Q And has it been your experience that people who have English as a second language often will not want to admit that they’re not as fluent as you might believe them to be?

A Yes.

Q And I believe that Ms. Bardales was a 15-year-old teenager at the time of this interview?

A Something like that, yes.

Q Did she seem like she felt completely comfortable with the fact that she was talking to the police?

AI would say no. I think she was apprehensive about speaking to the police.

* * *

Q You stated that you could tell that English was her second language. What was it about her demeanor when she was speaking and listening to you that made you believe that?

A Well, again, as I said, I think it was— be the accent. Sometimes she would think about what she was going to say and I think maybe she was maybe trying to translate certain things in her head. I’m not sure.

Q When she asked to write in Spanish, did you feel that perhaps there had been a communication problem that would explain why her statements in regards to the photo spread the day before were so odd to you?

A Yes. I thought that that might assist us because I told her we were trying to clarify her statements. So then it was her idea to write this in Spanish; and I thought that she was attempting to do just what I had asked, clarify what she meant.

Courts have generally regarded the use of an interpreter for a material witness who has difficulty communicating in English as a requirement of the Confrontation Clause, rather than an' encroachment on face-to-face confrontation, because the use of an interpreter enables a defendant to conduct a meaningful cross-examination. “[T]he appointment of an interpreter for a material witness is required by the [Confrontation [Cjlause and by article I, section 10, and must be implemented unless expressly waived if the trial judge is aware that the witness has difficulty understanding the English language.” The trial court abuses its discretion when it fails to appoint an interpreter for a material witness whose English skills are so poor that the defendant cannot conduct a meaningful cross-examination.

In cases such as this one, in which the trial court appointed an interpreter for a witness, appellate courts have not imposed a requirement that the record affirmatively establish that the -witness’s English skills were so poor that, without the interpreter, the defendant would have been deprived of the ability to conduct an effective cross-examination. We decline Balderas’s invitation to impose such a requirement now.

This Court has not previously defined the standard of review applicable specifically to the trial court’s decision to appoint an interpreter. However, in considering challenges to the adequacy of interpretive services, this Court and other appellate courts have deferred to the wide discretion of the trial judge, who had direct contact with the witness, the parties, and the interpreter, to make decisions. We see no reason to apply a different standard when considering the trial court’s initial decision to appoint an interpreter. As with other decisions regarding interpretive services, we conclude that the trial court’s decision to provide an interpreter should not be reversed absent a clear abuse of discretion—that is, when the ruling lies outside the zone of reasonable disagreement.

Balderas analogizes the assistance of an interpreter to the placement of a screen between a defendant and the witnesses who testify against him. However, unlike the use of a physical barrier such as a screen or a disguise, the assistance of an interpreter does not interfere with the parties’, witness’s, or jurors’ ability to observe each other. Thus, we are skeptical of Bald-eras’s characterization of the assistance of an interpreter as an encroachment on face-to-face confrontation.

Even if we assume arguendo that the use of an interpreter constituted an encroachment on face-to-face confrontation, we must still consider whether it was necessary to further an important public interest and whether the reliability of Wendy’s testimony was otherwise assured. The use of an interpreter for a witness whose primary language is not English is necessary to further an important public interest when it ensures that the defendant can conduct an effective cross-examination and that the jury has an accurate understanding of the witness’s testimony. The trial judge’s finding of “an inherent language barrier,” and her determination that the jury would get “a more accurate view of [Wend/s] testimony if allowed through a translator,” signaled that an interpreter was necessary to further this interest. We will defer to the trial court’s wide discretion on this matter.

In determining whether the reliability of Wendy’s testimony was otherwise assured, we examine the extent to which the proceedings respected the four elements of confrontation: physical presence, oath, cross-examination, and observation of demeanor by the trier of fact. Physical presence and oath are not at issue in this case. The record shows that Wendy testified in person in the courtroom, and before she testified, she swore an oath to tell the truth. The trial court reminded her of that oath before cross-examination began.

Balderas’s allegations on appeal implicate only the elements of cross-examination and observation of demeanor. Concerning cross-examination, Balderas does not assert that, because of the interpreter, he was prevented from asking Wendy, or obtaining her response to, any particular question. The Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, a defendant might wish. “[A] ‘less than optimal’ opportunity for cross-examination does not, of itself, violate the Sixth Amendment.” Further, although the cross-examiner is permitted to “delve into the witness’s story to test the witness’s perceptions and memory” and to impeach or discredit the witness, he remains subject to the broad discretion of the trial judge to preclude repetitive and unduly harassing interrogation. Without more, Balderas’s generalizations about potential hindrances to the truth-testing function of cross-examination, and his inability to employ particular cross-examination tactics such as “rapid-fire questioning,” do not show that the assistance of the interpreter in this case adversely affected the cross-examination element.

Concerning the fourth element of confrontation, Balderas alleges that the use of the interpreter enabled the State “to hide [Wendy’s] biased and untruthful demeanor.” Balderas asserts, “The jury could not notice or detect Wendy Bar-dales’s voice inflection, facial expressions, speech patterns, etc. when the jury spoke English and the witness testified in Spanish through an interpreter.” However, Balderas does not assert, and nothing in the record suggests, that he and the jurors were unable to view Wendy, or that Wendy was unable to view them, at any time during cross-examination. Wendy’s speaking Spanish would not “hide” her demeanor from jurors, notwithstanding any arguable detriment to an English-speaking juror’s ability to accurately assess nuances such as voice inflection and speech patterns. Because the jurors were able to view Wendy throughout the examination, they could discern for themselves whether Wendy’s demeanor was “biased and untruthful.”

Balderas also argues that the use of the interpreter enabled the State to “explain the inconsistencies in [Wendy’s] testimony as compared to the physical evidence.” We understand Balderas to argue that the assistance of an interpreter could impede a defendant’s efforts to show that inconsistencies between the witness’s statements and other evidence were the result of dishonesty rather than a language barrier. We find no such impediment under the facts of this case. The jury was presented with evidence that Wendy understood and spoke English fairly well Wendy testified that she could speak English and she acknowledged that, in the weeks before the trial, she communicated with the District Attorney’s staff in English. She also acknowledged that, by the time of the trial, she had learned to read English. During cross-examination, she occasionally answered a question in English without waiting for the interpreter, and she acknowledged that she understood some of the questions in English. Cunningham and Ru-land, who interviewed Wendy in the days after the offense, both testified that they did not perceive the need for an interpreter and that they had no difficulty communicating with Wendy in English. The jury learned that, during Ruland’s third interview with Wendy, she wrote a sentence in Spanish indicating that she understood, but could not write, English.

In addition, the use of an interpreter did not deprive Balderas of an opportunity to effectively cross-examine Wendy about the inconsistencies between her statements and the other evidence. Specifically, Wendy acknowledged that, although she had described the suspect as having a dark mark on his face, no such mark was visible on the photograph of Balderas’s face in the photo array, and when she viewed Balder-as in the courtroom, he had only a mole on his face. She also acknowledged that she had described the murder weapon as a black handgun, while the weapon the State presented as the murder weapon was gray or silver with a black handle. In addition, Wendy had claimed in her statement to police that the gunman shot at her until his gun was empty, but at trial, Balderas pointed out that the crime scene evidence and Ferrufino’s testimony indicated that no shots had been fired toward Wendy.

When confronted with tsuch inconsistencies, Wendy sometimes suggested that they were misunderstandings arising from a language barrier, but she frequently testified that she did not remember what she said or why. She acknowledged that her memory would have been better when she gave her statement to police in 2005 than it was at the time of trial in 2014.

The record shows that Balderas argued to the jury that Wendy did not need an interpreter because she spoke English well, and that the use of the interpreter cast doubt on Wendy’s credibility. Balder-as also argued that the discrepancies between Wendy’s statements and the other evidence established that her testimony was not credible. The trial court and the jury were in the best position to draw their own conclusions based on their personal observations of the proceedings. We will not second-guess those conclusions on appeal.

We conclude that the trial court did not abuse its discretion under Article 38.30 by appointing an interpreter for Wendy and denying Balderas’s motion to compel cross-examination in the English language. We also conclude that the assistance of the interpreter did not deprive Balderas of his Sixth Amendment right to confront Wendy. Point of error three is overruled.

In point of error four, Balderas asks:

If a criminal defendant does not have a Sixth Amendment right ... to confront his accuser in English, does he at least have the right to cross-examine and impeach his accuser concerning her ability to speak English so that the jury might be made aware of her attempt to mask the extent of her fluency?

Although Balderas’s stated point of error appears to complain of a limitation on cross-examination, his argument focuses on the trial court’s evidentiary ruling that excluded the audio recording of the conversation in which Wendy identified Bald-eras as the gunman for the second time. Because Balderas’s argument is unclear and relies, apparently, on multiple legal theories, we could reject this point of error as inadequately briefed and multifarious. Nevertheless, in the interest of justice, we will address Balderas’s argument as we understand it.

Balderas appears to argue that the trial court’s exclusion of the audio recording violated the Sixth Amendment by preventing him from effectively cross-examining Wendy concerning her English fluency. He asserts that the audio recording could have impeached Wendy by demonstrating to the jury that: (1) Wendy lied about her English-language proficiency, and (2) the apparent inaccuracies and discrepancies in her statements to police stemmed from her personal animosity toward Balderas rather than a language barrier.

At the end of the trial, Balderas attempted to offer the audio recording into evidence. The trial court asked Balderas why the recording was not hearsay. Bald-eras stated that he was offering it to show Wendy’s ability to communicate in English. He argued that Wendy’s ability to speak English was subject to cross-examination and that the audio recording was impeaching of her testimony that she had trouble communicating in English when she spoke with the police. The prosecutor objected to the admission of the audio recording on grounds that it was hearsay, irrelevant, and improper impeachment evidence because no one had claimed that Wendy could not speak English. The trial court excluded the audio recording without making any express reference to Balder-as’s arguments or the State’s objections, instead simply noting that the jury could draw conclusions about Wendy’s ability to speak English from the testimony of the live witnesses. In post-submission briefing, Balderas argues that the trial court should have admitted the audio recording as demonstrative evidence. To the extent that he means to assert a separate ground for admission, Balderas did not urge this ground, or obtain a ruling on it, at trial.

Evidentiary rulings rarely rise to the level of denying fundamental constitutional rights to present a meaningful defense. A ruling might rise to this level if it is “clearly erroneous” and if it excludes “otherwise relevant, reliable evidence which forms such a vital portion of the ease” that the ruling “effectively precludes the defendant from presenting a defense.”

The record does not support Bald-eras’s complaint that the trial court’s exclusion of the audio recording prevented him from effectively cross-examining Wendy concerning her English fluency. As discussed in point of error three, Balderas did effectively cross-examine Wendy concerning her ability to speak English. Through Wendy’s testimony, as well as the testimony of the police investigators who interviewed her, the jury learned that Wendy understood and spoke English fairly well.

Further, the audio recording conveys an impression of Wendy’s ability to understand and speak English that is generally consistent with the impression given by the witnesses’ trial testimony, which was that Wendy understood and spoke some English but that English was her second language. As discussed in point of error three, the Sixth Amendment did not entitle Balderas to cross-examine Wendy in whatever way, and to whatever extent, he wished. The trial judge had broad discretion to preclude repetitive and unduly harassing interrogation. The trial court did not violate the Sixth Amendment by excluding the audio recording. Point of error four is overruled.

In point of error five, Balderas asks: “Did the trial court abuse its discretion by allowing Wendy Bardales to testify in Spanish?” We resolved this question against Balderas in our discussion of point of error three; therefore, we answer Bald-eras’s question in the negative. Point of error five is overruled.

GASKIN RULE VIOLATION

In point of error six, Balderas asserts that the trial court violated the Gaskin Rule by improperly denying him the opportunity to impeach Wendy with her prior audio recorded statement to police. Balder-as misunderstands the Gaskin Rule, which entitles a defendant to inspect a State’s witness’s prior statements, if they relate to the subject matter of the witness’s testimony, for use in cross-examination and impeachment. Balderas acknowledges, and the record reflects, that he had a copy of the recorded statement. Thus, there was no violation of the Gaskin Rule. Point of error six is overruled.

OUTSIDE INFLUENCE ON THE JURY’S DELIBERATIONS

In point of error seven, Balderas asks, “Was the appellant deprived of due process of law and an impartial jury by an outside influence acting upon the jury during their deliberations?” Balderas explains that this “outside influence” was his brother’s act of standing near the street and waving at a bus that carried the jurors from the courthouse to their hotel. Balder-as asserts that there is a reasonable probability that this incident had a prejudicial effect on the verdict because jurors who were questioned by the judge acknowledged that they were fearful as a result of this incident. He theorizes that this fear motivated jurors who had doubts about his guilt to abandon their reservations in order to reach a verdict quickly “and escape the situation.” In support of this theory, Balderas asserts that the jury reached a guilty verdict the morning following the incident after just two hours of deliberation, although the jury foreman had reported that the jury was deadlocked when deliberations ended the previous day.

Any private communication, contact, or tampering with a juror, directly or indirectly, during a trial about the matter pending before the jury is presumptively prejudicial, if such contact is not authorized by the court and is made without the knowledge o