Appeal from the 178th District Court Harris County, Texas
Trial Court Cause No. 0483100
consists of Justices Wise, Jewell, and Poissant.
MARGARET "MEG" POISSANT, JUSTICE
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.
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.).
of Review and Applicable Law
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
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."
trial court made findings of fact and conclusions of law on
the record August 15, 2016, when it denied the motion to
quash. 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.
Length of the delay
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).
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.
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.").
Reason for the delay
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
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
• 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
• During that time, appellant's attorney contacted
the warrants division and stated he would attempt to contact
appellant and post bond.
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**;
• 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.
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
• 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."
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
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.
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.
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.
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.
Assertion of the right
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.
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
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 ...