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Garcia v. State

Court of Appeals of Texas, Fourteenth District

December 14, 2017


         On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 0482220.

          Panel consists of Justices Boyce, Jamison, and Brown.


          William J. Boyce Justice

         We 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.

         A jury 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.


         In 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 his penis.

         On 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.

         Appellant 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, 1987.

          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.

         The 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.


         I. Speedy Trial

         In his 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).

         The 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

         This 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. App. 2017).

         To 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).

         Once 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.

         In this 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

         The 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).

         The 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.

         The 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").

         Appellant 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").

         Regarding 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.

         C. Assertion of Right to Speedy Trial

         The 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 521.

          Of 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.

         The 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.").

         Further, 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.

         D. Prejudice to Appellant

         We 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.

         Appellant 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.").

         Appellant 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.

         Appellant 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 ...

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