Appeal from the 174th District Court Harris County, Texas
Trial Court Cause No. 0482220
consists of Justices Boyce, Jamison, and Brown.
William J. Boyce Justice
convicted appellant Freddy Garcia of aggravated sexual
assault of a child, and the trial court sentenced him to 45
years' confinement and a $10, 000 fine. See Tex.
Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon
Supp. 2016). In two issues, appellant contends that: (1) he
was denied his right to a speedy trial; and (2) the trial
court erred by failing to require the State to elect at the
close of its casein-chief which alleged incident of sexual
assault it sought to submit to the jury. We conclude
appellant's right to a speedy trial was not violated,
largely because he acquiesced to the delay when he became a
fugitive. However, we are not convinced beyond a reasonable
doubt that the State's failure to elect which act it
relied upon to pursue a conviction had no or but slight
effect on the jury's verdict. Accordingly, we reverse the
trial court's judgment and remand for a new trial.
1986, complainant was 11 years old when she moved from Mexico
to Houston to live with her mother, two half-brothers, and
appellant, her step-father. Complainant often would be left
alone with appellant in the evenings while her mother went to
work. Over the course of the next year, appellant allegedly
sexually assaulted complainant in a series of escalating
incidents. Complainant testified at trial that on one
occasion during that time period appellant forced complainant
into their apartment bathroom and penetrated her vagina with
August 16, 1987, complainant's mother left complainant
with appellant while she went to run an errand.
Complainant's mother returned home early and found
appellant in complainant's bedroom with his pants down.
Complainant's mother and appellant argued, and appellant
left the apartment and did not return.
was arrested the next day and was indicted on August 28,
1987. The indictment alleged a single count of sexual assault
- specifically, that appellant penetrated complainant's
sexual organ with his own sexual organ on or about August 16,
was released on bond, but an arrest warrant was issued when
he subsequently failed to appear in court. Appellant eluded
authorities for 27 years until he was located in North
Carolina and arrested on November 18, 2014. Appellant was
extradited to Texas on January 19, 2015.
case went to trial on February 5, 2016. A jury found
appellant guilty of aggravated sexual assault of a child and
the trial court sentenced him to 45 years' imprisonment
and assessed a $10, 000 fine. Appellant timely appealed.
second issue, appellant contends that his right to a speedy
trial was violated because he was not brought to trial until
more than 28 years after he was indicted. Because this is a
threshold issue that would serve as an absolute bar to
prosecution, we address it first. See Barker v.
Wingo, 407 U.S. 514, 522 (1972) (proper remedy for
speedy trial violation is dismissal of indictment); Shaw
v. State, 117 S.W.3d 883, 888 (Tex. Crim. App. 2003)
(speedy trial violation results in dismissal of the
prosecution with prejudice).
Sixth Amendment to the United States Constitution guarantees
the right of an accused to a speedy trial. U.S. Const. amend.
VI. In conducting a speedy trial analysis, a reviewing court
looks to the four factors set out in Barker. The
Barker test balances: (1) the length of the delay;
(2) the reason for the delay; (3) the defendant's
assertion of his or her right; and (4) prejudice to the
defendant. Id. In conducting a speedy trial
analysis, we review legal issues de novo and review
the trial court's resolution of factual issues for an
abuse of discretion. See Kelly v. State, 163 S.W.3d
722, 726 (Tex. Crim. App. 2005).
The Length of the Delay
first factor is a "double enquiry." See Doggett
v. United States, 505 U.S. 647, 651 (1992). A court
first "must consider whether the delay is sufficiently
long to even trigger a further analysis under the
Barker factors, and if it is, then the court must
consider to what extent it stretches beyond this triggering
length." Hopper v. State, No. PD-0703-16, 2017
WL 2457442, at *5 (Tex. Crim. App. June 7, 2017).
initially trigger a speedy trial analysis, the defendant must
show that the interval between accusation and trial crosses
the threshold dividing ordinary delay from
"presumptively prejudicial" delay.
Doggett, 505 U.S. at 651-52. Presumptive prejudice
in this context simply means that a delay is facially
unreasonable enough to conduct a full inquiry into the
remaining Barker factors. Id. at 652 n.1.
There is no bright-line rule for determining when a delay
violates the right to a speedy trial. Hull v. State,
699 S.W.2d 220, 221 (Tex. Crim. App. 1985). Generally, courts
find a delay approaching one year sufficient to trigger a
full inquiry. Doggett, 505 U.S. at 652 n.1;
Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App.
the defendant establishes a presumptively prejudicial delay,
the reviewing court must then consider the extent to which
the delay has stretched beyond the threshold. See
Doggett, 505 U.S. at 652. This second enquiry is
significant to the speedy trial analysis because the
presumption that pretrial delay has prejudiced the defendant
intensifies over time. Id.
case, more than 28 years elapsed between the time of
appellant's indictment and trial. A delay of 28 years is
sufficient to trigger a full Barker analysis.
See Dragoo, 96 S.W.3d at 314. Given the length
beyond the threshold, we conclude that this factor weighs
against the State. See Gonzales v. State, 435 S.W.3d
801, 809 (Tex. Crim. App. 2014) (six-year delay weighed
heavily against the State).
Reason for Delay
State carries the burden of justifying its delay. Cantu
v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).
Valid reasons for delay do not weigh against the State,
whereas bad-faith delays weigh heavily against the State.
See Hopper v. State, 495 S.W.3d 468, 474 (Tex.
App.-Houston [14th Dist.] 2016), aff'd, No.
PD-0703-16, 2017 WL 2457442 (Tex. Crim. App. June 7, 2017).
delay here covers two distinct periods. The first period runs
from the time of appellant's indictment until the
appellant's re-arrest and extradition to Texas - a span
of roughly 27 years. The second period runs from the time
appellant came into the custody of Texas on January 19, 2015,
until appellant's trial on February 5, 2016 - a span of
approximately 13 months.
State has valid reason for the first portion of the delay;
appellant was a fugitive for nearly this entire period.
See id. at 475 (first period of delay, where
"appellant was either on the run or facing trial in
Nebraska, " did not weigh against State); Lott v.
State, 951 S.W.2d 489, 494 (Tex. App.-El Paso 1997, pet.
ref'd) (a fugitive "undoubtedly bears at least some
fault for the length of the delay").
nevertheless contends that this period of the delay should
weigh against the State because the State was negligent in
its attempts to locate appellant. The evidence demonstrates
otherwise. Appellant used a different name and social
security number on at least one occasion when he applied for
a driver's license in Florida. Investigators periodically
searched for appellant, including checking his last known
address on several occasions, searching national databases,
placing wanted ads in newspapers, and featuring appellant on
the Crime Stoppers website. These efforts began in 1987 and
continued until 2014 when an investigator with the Harris
County District Attorney's Office located appellant
living in North Carolina. We conclude the State was diligent
in attempting to locate appellant. See Lott, 951
S.W.2d at 495 (State was diligent in attempting to locate
appellant where search covered "many search avenues . .
. over the course of thirty years and four investigations,
" despite lengthy gaps between search efforts).
Consequently, the reason for this part of the overall delay
does not weigh against the State. See id. (where
appellant contended that State should have located him when
he received services at a veterans' hospital, court
concluded that "the State's failure to continue with
an active investigation which might have detected that Lott
had 'surfaced' under his own name in order to receive
veterans' benefits in 1986 stemmed not from a lack of
diligence, but from Lott's own crafty, and successful,
twenty-year-old disappearing act").
the second part of the delay, spanning the period after his
re-arrest but before trial, the record shows that appellant
agreed to six trial resets and at one point requested a trial
continuance, which was granted. Appellant therefore is
partially responsible for the second period of delay between
his re-arrest and trial, and this factor weighs neither for
nor against the State.
Assertion of Right to Speedy Trial
right to a speedy trial is unlike other rights enshrined in
the Constitution because the deprivation of the right, in
some instances, may actually work to the defendant's
advantage. See Barker, 407 U.S. at 521. As the
pretrial delay increases, witnesses can die, their memories
can fade, or they can become unavailable for any number of
other reasons. See Hopper, 495 S.W.3d at 476. If
these witnesses supported the State's theory of the case,
then the prosecution will be impaired, and that impairment
will work to the benefit of the defendant because the State
carries the ...