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Zamarripa v. State

Court of Appeals of Texas, Fourteenth District

April 30, 2019


          On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 0483100

          Panel consists of Justices Wise, Jewell, and Poissant.



         A jury convicted appellant Jesus Zamarripa of aggravated sexual assault of a child under fourteen years of age. The jury sentenced appellant to prison for thirty years and assessed a fine of $10, 000. Appellant timely brought this appeal, complaining the trial court erred in denying his motion to quash the indictment for violation of his right to a speedy trial. For the reasons stated below, we affirm.

         In his sole issue, appellant argues his constitutional right to a speedy trial was violated. An accused is guaranteed the right to a speedy trial under both the United States and Texas Constitutions. See U.S. Const. amend. VI; Tex. Const. art. I §10. Texas courts apply the same standard to enforce the state constitutional right to a speedy trial as federal courts use to enforce the Sixth Amendment right to a speedy trial. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992). We therefore analyze together appellant's claims that these rights were violated. Ortega v. State, 472 S.W.3d 779, 785 (Tex. App.-Houston [14th Dist.] 2015, no pet.).

         Standard of Review and Applicable Law

         The right to a speedy trial attaches once a person becomes an accused; this can be when he is either arrested or charged with an offense. Henson v. State, 407 S.W.3d 764, 767 (Tex. Crim. App. 2013). We analyze speedy trial claims on a case-by-case basis by balancing the following factors: (1) length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice inflicted on the defendant by the delay. Zamorano v. State, 84 S.W.3d 643, 647-48 (Tex. Crim. App. 2002) (citing Barker v. Wingo, 407 U.S. 514');">407 U.S. 514, 530 (1972)). To trigger a speedy-trial violation analysis, "an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay." Doggett v. United States, 505 U.S. 647, 651-52, (1992). If the first Barker factor is satisfied, an analysis of the remaining factors is triggered. Id. We must analyze the speedy-trial claim by first weighing the strength of each of the Barker factors and then balancing their relative weights in light of "the conduct of both the prosecution and the defendant." Id. No one factor is "either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Id. Instead, the four factors are related and must be considered together along with any other relevant circumstances. Id. As no factor possesses "talismanic qualities," we engage "in a difficult and sensitive balancing process" in each individual case. Id.; see State v. Wei, 447 S.W.3d 549, 554 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd) ("The defendant's burden of proof varies inversely to the State's degree of culpability for the delay.").

         We apply a bifurcated standard of review when considering a trial court's decision to dismiss an indictment because the defendant was denied his right to a speedy trial. State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex. Crim. App. 2011). Legal components are evaluated de novo, while the factual components are evaluated for an abuse of discretion. Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008). We give almost total deference to a trial court's findings of fact that are supported by the record, as well as any mixed questions of law and fact that rely upon the credibility of witnesses. Krizan-Wilson, 354 S.W.3d at 815. With respect to the trial court's resolution of factual issues, we view the evidence in the light most favorable to the trial court's ruling. Cantu, 253 S.W.3d at 282. Review of the individual Barker factors necessarily involves factual determinations and legal conclusions, but the balancing test is "a purely legal question." Id.

         The trial court made findings of fact and conclusions of law on the record August 15, 2016, when it denied the motion to quash.[1] When findings of fact are unchallenged, they are binding on an appellate court unless the contrary is established as a matter of law, or there is no evidence to support the finding. See Goodson v. State, No. 09-18-00018-CV, 2018 WL 5060432, at *3 (Tex. App.- Beaumont Oct. 18, 2018, no pet.) (mem. op.) (not designated for publication) (citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Vasquez v. State, No. 01-04-01221-CV, 2006 WL 2506965, at *3 (Tex. App.-Houston [1st Dist.] Aug. 31, 2006, pet. denied) (mem. op.) (not designated for publication) (same)). We address those challenged by appellant within his argument on the Barker factors in our analysis below. We review de novo the conclusions of law drawn by the trial court from the facts to determine their correctness. See Goodson, 2018 WL 5060432, at *3 (citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)).


         A. Length of the delay

         This first factor is a double inquiry. See Doggett, 505 U.S. at 651. We 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).

         The length of the delay is measured from the time the defendant is arrested or formally accused until the trial or the defendant's demand for a speedy trial occurs. United States v. Marion, 404 U.S. 307, 313 (1971); see Ortega, 472 S.W.3d at 785- 86; Celestine v. State, 356 S.W.3d 502, 507 (Tex. App.-Houston [14th Dist.] 2009, no pet.). The length of the delay is, to some extent, a triggering mechanism, so that a speedy trial claim will not even be heard until passage of a period of time that is, on its face, unreasonable under the circumstances. Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003). "If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim." Doggett, 505 U.S. at 652.

         Here, the complaint was made August 29, 1987, and appellant was indicted on September 3, 1987, and filed his motion to dismiss alleging a speedy-trial violation on September 2, 2015, an interval of twenty-eight years. The State concedes this delay is sufficient to trigger a full Barker analysis. We agree. See Dragoo, 96 S.W.3d at 314 (interval of three and one-half years sufficient to trigger examination of all factors); Zamorano, 84 S.W.3d at 649-50 (delay of two years and ten months in "plain-vanilla DWI case" sufficiently lengthy to trigger judicial review of other Barker factors); Lopez v. State, 478 S.W.3d 936, 942 (Tex. App.-Houston [14th Dist] 2015, pet. ref d) (citing Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003) (delay approaching one year is sufficient to trigger a speedy trial inquiry)). Thus, we conclude this factor weighs against the State. Zamorano, 84 S.W.3d at 649-50 ("Because the length of the delay stretched well beyond the bare minimum needed to trigger judicial examination of the [speedy trial] claim, this factor-in and of itself-weighs heavily against the State.").

         B. Reason for the delay

         The burden of justifying the delay is on the State. Cantu, 253 S.W.3d at 280. In evaluating the State's reason for the delay, we assign different weights for different reasons. Barker, 407 U.S. at 531. 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), affd, 520 S.W.3d 915 (Tex. Crim. App. 2017). A more neutral reason, such as negligence, will weigh less heavily against the State, but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the State rather than the defendant. Barker, 407 U.S. at 531.

         The trial court's complete findings are set forth in Appendix A to this opinion. We take particular note of the following findings relative to appellant's departure from the State of Texas:

• After the complainant reported the offense to police, her grandfather confronted appellant;
• Appellant was aware of the charges against him;
• After charges were filed, appellant obtained an attorney; and
• During that time, appellant's attorney contacted the warrants division and stated he would attempt to contact appellant and post bond.

         As regards the State's negligence in failing to find appellant, the following findings are of particular import:

• The original warrant for appellant's arrest incorrectly stated his year of birth as 19**;[2]
• The family of Appellant provided the investigator with Appellant's year of birth as 19**;
• There was no FBI number, juvenile number, spin number, or social security numbers for a person named Jesus Gabriel Zamarripa born in 19**;
• The name on the alien registration card was Jesus Gabriel Zamarripa Olivo, but in the Harris County database appellant was Jesus Gabriela Zamarripa;
• Appellant went to Mexico and later returned to the United States, and lived in Chicago;
• The State attempted to serve a warrant on Appellant at least seven times in the next several months;
• Following the service attempt in December 1987, appellant contacted DPS trooper Quinwin by telephone in reference to the case;
• Seven more service attempts were made from March 1998 to January 2001;
• The warrant was then placed in an inactive file pending additional or new leads;
• From April 2001 to April 2015, at least eighteen more attempts at service were made;
• At that time, an investigator added an alias date of birth of 19**;
• The next day, a service attempt resulted in a hold from Harris County being placed on appellant;
• Appellant signed a waiver of extradition and returned to Harris County shortly thereafter;
• Harris County was unaware of appellant's correct birthdate until 2015; and
• There were no records of appellant's move from Houston, either to Mexico or Chicago.

         Our review of the record reflects there is evidence to support the trial court's findings, and the contrary is not established as a matter of law. From its' findings, the trial court concluded:

• Appellant left the jurisdiction of the State for twenty-eight years to avoid prosecution after having notice of the charges against him;
• The State exercised due diligence as shown by the more than thirty attempts to locate appellant and execute the warrant;
• The State was not negligent because of the variance in appellant's name and date of birth given to investigators as compared to the name and date of birth on his permanent resident card; and
• The incorrect information was "apparently given by [appellant's] family members."

         Appellant challenges the trial court's conclusions. Appellant argues the second Barker factor weighs strongly in favor of determining his speedy-trial right was violated, because the delay "was predominantly attributable to the State's negligence," rather than his departure from Texas.

         Appellant first contends the trial court "had no credible evidence he left Texas to avoid prosecution." Appellant relies upon the fact the complainant's mother testified he called and asked complainant's mother to drop the charges before he was indicted. The trial court expressly found this testimony was credible. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002) (stating an appellate court should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility of witness testimony). Appellant became "an accused," and his right to a speedy trial attached, when the complaint charging him with the offense was filed in August 1987. See Henson, 407 S.W.3d at 767. Accordingly, the trial court's conclusion that appellant fled to Mexico and then went to Chicago to avoid prosecution is supported by the evidence.

         Appellant also argues the trial court erroneously concluded the State acted with due diligence and was not negligent for failing to locate him sooner. Appellant faults the State for having incorrect identifying information.

         The trial court concluded, and appellant does not contest, that the incorrect information was supplied by his family. Appellant claims the State made no attempt to locate him for "several periods of years." Appellant refers this court, without explanation or argument, to State's Exhibit 2, the warrant service attempts. Appellant does not identify when these periods occurred and cites no authority that these "gaps" in attempted service render the State's actions negligent. Nevertheless, the evidence shows, and the trial court's findings reflect, there is a gap from December 1987, when appellant contacted Trooper Quinwin by phone, until January 1994. Then, there is another gap until 1997. Thereafter, service was routinely attempted almost every year until appellant was located in Chicago. The record reflects the State attempted to execute the arrest warrant more than thirty times.

         There is no evidence suggesting that the State's failure to locate appellant was deliberate or intentional. At most, the State's actions were negligent. On the other hand, the record supports a finding that appellant's actions constituted a deliberate and intentional attempt to avoid prosecution. Accordingly, we conclude the second Barker factor weighs against finding appellant's right to a speedy trial was violated.

         C. Assertion of the right

         "The defendant has no duty to bring himself to trial; that is the State's duty." Cantu, 253 S.W.3d at 282. However, a defendant does have the responsibility to assert his right to a speedy trial. Id. The lack of a timely assertion of the right indicates strongly that the defendant did not really want a speedy trial and was not prejudiced by not having one. Dragoo, 96 S.W.3d at 314. The longer the delay, the more likely that a defendant who really wanted a speedy trial would take some action to obtain one. Id. Thus, the longer the delay, the more heavily the continued inaction on the defendant's part weighs against a finding that the right was violated. Id.

         Appellant contends he timely asserted his right to a speedy trial. His contention is premised upon the presumption that he had no responsibility to assert that right before the State located him in Chicago. However, the evidence in the record before us supports the conclusion that appellant was aware charges had been filed before he left Texas. Accordingly, appellant was on notice to assert his right to speedy trial. See Doggett, 505 U.S. at 653; cf. Guajardo v. State, 999 S.W.2d 566, 570 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) (noting defendant's first opportunity to assert her right to a speedy trial was immediately following her arrest because prior to that time appellant had no notice that she had been indicted). Here, appellant failed to assert his speedy-trial right for twenty-eight years, although he had obtained counsel before leaving Texas. 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 v. State, 951 S.W.2d 489, 495 (Tex. App.-El Paso 1997, pet. ref'd) (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.").

         Moreover, appellant did not file his motion to quash for four months after his extradition to Harris County but instead signed several case resets. Counsel for appellant was appointed on May 4, 2015. At that time, the case was reset until June 2015. The case was reset three more times before appellant filed a "Memorandum Supporting Jesus Zamarripa's Motion to Quash Indictment For Lack of Speedy Trial" in September 2015. The case was reset three more times. In June 2016, a hearing was held on the motion to quash. We exclude this time from the speedy-trial calculation because agreed resets are inconsistent with the assertion of the right to a speedy trial. Smith v. State, 436 ...

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