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
overrule the State's motion for rehearing, withdraw our
opinion dated July 20, 2017, and issue the following
substitute opinion. The disposition remains the same.
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,
Appellant 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).
A. The Length of the Delay
first factor is a double inquiry. 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, 520 S.W.3d 915, 924 (Tex. Crim.
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) (en banc).
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. 2003).
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 inquiry 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).
B. 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, 520
S.W.3d 915 (Tex. Crim. App. 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 State's custody 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 burden of proof. Id. For that reason,
the Supreme Court has recognized that "[d]elay is not an
uncommon defense tactic." Barker, 407 U.S. at
course, delay also can prejudice the defendant, because with
the passage of time grows the possibility that the defense
may lose an alibi witness or access to other evidence with
exculpatory value. Id. at 532. The more seriously
that a defendant perceives a loss of this sort, the more
likely he is to complain; accordingly, the defendant bears
"some responsibility to assert a speedy trial
claim." Id. at 529.
record shows that appellant sat on his rights for more than
27 years before asserting his right to a speedy trial. The
record also shows that for most of that time appellant was a
fugitive. Appellant fled after being released on bond,
indicating that he was on notice as to the charge against
him. His flight evidences a lack of desire for any trial,
much less a speedy one. See Hopper, 520 S.W.3d at
928 ("Because we have determined that the record
supports a conclusion that appellant knew about his Texas
charge, his complete failure to assert his right to a speedy
trial for more than eighteen years suggests that he did not
really want a speedy trial."); Lott, 951 S.W.2d
at 495 (factor weighed against appellant when the evidence
"support[ed] a finding that Lott, knowing of the
charges, chose to remain at large for more than thirty years
without ever demanding a trial.").
appellant did not adequately assert his rights following his
ultimate re-arrest. Appellant agreed to three resets between
January 19 and August 31, 2015, at which time he filed a
motion to dismiss for a speedy trial violation. Following
this objection (to which it does not appear appellant secured
a ruling), appellant agreed to three more resets and on one
occasion requested a continuance. This court previously has
held that "[w]e exclude the time covered by agreed
resets from the speedy trial calculation because agreed
resets are 'inconsistent with [the] assertion of a speedy
trial right.'" Smith v. State, 436 S.W.3d
353, 365 (Tex. App.-Houston [14th Dist.] 2014, pet.
ref'd) (quoting Celestine v. State, 356 S.W.3d
502, 507 (Tex. App.-Houston [14th Dist.] 2009, no pet.)).
Consequently, this factor weighs heavily against appellant.
Prejudice to Appellant
review this final factor in light of the interests that the
right to a speedy trial was designed to protect. See
Barker, 407 U.S. at 532. The Supreme Court has
identified three such interests: (1) to prevent oppressive
pretrial incarceration; (2) to minimize the defendant's
anxiety and concern; and (3) to limit the possibility that
the defense will be impaired. Id. Of these, the last
is the most serious because the inability of a defendant to
adequately prepare his case skews the fairness of the entire
justice system. Id.
was not imprisoned during the 27 years he was a fugitive, and
was tried within six months of requesting a speedy trial.
Therefore, there was no risk of oppressive pretrial
incarceration. See Lott, 951 S.W.2d at 496
("Finally, Lott was not incarcerated for the thirty-year
period between the original indictment and the final
resolution of this case. Lott's case was finally disposed
of within eight months after his first, and only, demand for
a speedy trial.").
makes no claim of suffering any anxiety or concern.
Regardless, any anxiety or concern suffered during his flight
from justice was self-imposed. Accordingly, the second
interest is not relevant here.
largely focuses on the third interest. Appellant first
contends that we should presume prejudice resulted from the
"excessive delay." See Doggett, 505 U.S.
at 655. Such a presumption may be tempered, however, by
extenuating circumstances, including a defendant's
acquiescence in the ...