ACCEPTED
01-14-00897-cr
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/24/2015 4:40:12 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00897-CR
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT OF TEXASHOUSTON, TEXAS
AT HOUSTON 7/24/2015 4:40:12 PM
CHRISTOPHER A. PRINE
Clerk
ENRIQUE CHAVEZ AGUIRRE § APPELLANT
§
VS. §
§
THE STATE OF TEXAS § APPELLEE
APPEAL FROM CAUSE NO. 0950986
IN THE 178TH DISTRICT COURT
OF HARRIS COUNTY, TEXAS
APPELLANT’S BRIEF
STANLEY G. SCHNEIDER
SCHNEIDER & MCKINNEY, P.C.
Texas Bar No. 17790500
440 Louisiana, Suite 800
Houston, Texas 77002
(713) 951-9994 (Office)
(713) 224-6008 (Fax)
stans3112@aol.com (Email)
ATTORNEY FOR APPELLANT
APPELLANT REQUESTS ORAL ARGUMENT
Identity of Parties and Counsel
The following is a complete list of all parties to the trial court’s judgment, and
the names and addresses of all trial and appellate counsel:
Enrique Chavez Aguirre . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellant
State of Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellee
Mike Monks . . . . . . . . . . . . . . . . . . . . . . . . . Appellant’s Retained Counsel at Trial
4615 Southwest Freeway, Suite 520
Houston, Texas 77027
Patricia Ventura. . . . . . . . . . . . . . . . . . . . . . . Appellant’s Retained Counsel at Trial
4615 Southwest Freeway, Suite 520
Houston, Texas 77027
Charles Brodsky. . . . . . . . . . . . . . . . . . . . . . . . . Assistant District Attorney at Trial
1201 Franklin, Suite 600
Houston, Texas 77002
Erin Epley. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assistant District Attorney at Trial
1201 Franklin, Suite 600
Houston, Texas 77002
Stanley G. Schneider . . . . . . . . . . . . . . . . Appellant’s Retained Counsel on Appeal
440 Louisiana, Suite 800
Houston, Texas 77002
Alan Curry . . . . . . . . . . . . . . . . . . . . . . . . . . Assistant District Attorney on Appeal
1201 Franklin, Suite 600
Houston, Texas 77002
Hon. David L. Mendoza . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial Judge
i
Table of Contents
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
List of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Issue One: The trial court abused its discretion in denying Appellant’s
Motion for New Trial.
Issue Two: Appellant was denied effective assistance of counsel based
on trial counsel’s failure to investigate the law and facts necessary to
present a speedy trial claim based on the delay in his arrest from the time
of the indictment in this cause on June 3, 2003, to his arrest on October
26, 2013.
Hearing on the Motion for New Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Argument and Authorities
in Support of Issues One and Two. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Ineffective Assistance of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Law Pertaining to Speedy Trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. Length of the delay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
B. Reason for the delay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
C. Assertion of the right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
D. Prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
E. Balancing Test. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
F. Sixth Amendment Prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ii
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
iii
List of Authorities
Cases Page
Banks v. State,
819 S.W.2d 676, 682 (Tex. App.– San Antonio 1991, pet. ref’d). . . . . . . . 22
Barker v. Wingo,
407 U.S. 514 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Bosworth v. State,
06-12-00058-CR, 2013 WL 563321
(Tex. App.—Texarkana Feb. 15, 2013, no. pet. h.). . . . . . . . . . . . . . . . . . . 28
Branscum v. State,
750 S.W.2d 892, 895 (Tex. App.—Amarillo 1988, no pet.). . . . . . . . . . . . 31
Brown v. State,
974 S.W.2d 289, 294 (Tex. App. San Antonio 1998, pet. ref’d). . . . . . . . . 46
c.f. United States v. Escamilla,
244 F. Supp. 2d 760, 769 (S.D. Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . 32
Cantu v. State,
253 S.W.3d 273, 281 (Tex. Crim. App. 2008). . . . . . . . . . . . . . . . . . . . . . . 25
Cowart v. Hargett,
16 F.3d 642 (5th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Deluna v. State,
05-10-01339-CR, 2012 WL 3642308
(Tex. App.—Dallas Aug. 27, 2012, pet. ref’d).. . . . . . . . . . . . . . . . 34, 35, 43
Doggett v. United States,
505 U.S. 647, 651-52 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
iv
Dokter v. State,
281 S.W.3d 152, 158 (Tex. App.—Texarkana 2009, no pet.). . . . . . . . . . . 35
Doles v. State,
876 S.W.2d 741, 746 (Tex. App.– Tyler, 1989). . . . . . . . . . . . . . . . . . . . . . 22
Dragoo v. State,
96 S.W.3d 308, 316 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . 26, 28
Ex parte Ewing,
570 S.W.2d 941, 947(Tex. Crim. App. 1978). . . . . . . . . . . . . . . . . . . . . . . 19
Ex parte Kunkle,
852 S.W.2d 499, 505 (Tex. Crim. App.),
cert. denied, Kunkle v. State, 114 S.Ct. 122, 126 L.Ed.2d 87 (1993). . . . . 20
Ex parte Lilly,
656 S.W.2d 490 (Tex. Crim. App. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Ex parte Raborn,
658 S.W.2d 602, 605 (Tex. Crim. App. 1983). . . . . . . . . . . . . . . . . . . . . . . 19
Ex parte Welborn,
785 S.W.2d 391, 396 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . 19, 22-23
Ex parte Ybarra,
629 S.W.2d 943, 949 n.15 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . . . . 22
Gonzales v. State,
PD-0724-12, 2013 WL 765575
(Tex. Crim. App. Feb. 27, 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 37
Goodrum v. Quarterman,
547 F.3d 249, 260 (5th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Greene v. State,
928 S.W.2d at 126. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
v
Guajardo v. State,
999 S.W.2d 566, 570
(Tex. App.—Hous. [14th Dist.] 1999, pet. ref’d). . . . . . . . . . . . . . . . . . . . . 28
Harris v. State,
827 S.W.2d 949, 957 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . . . . . 34
Hodges v. United States,
408 F.2d 543, 551 (8th Cir. 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Jackson v. State,
857 S.W.2d 678, 683 (Tex. App.– Houston [14th Dist.], 1993). . . . . . . . . . 20
Kimmleman v. Morrison,
477 U.S. 365, 380 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Klopfer v. North Carolina,
386 U.S. 213, 223-26 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Kyles v. Whitley,
514 U.S. 419, 430 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Lewis v. Dretke,
355 F.3d 364, 368 (5th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
McMann v. Richardson,
397 U.S. 759 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Moore v. Johnson,
194 F.3d 586, 604 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Orand v. State,
254 S.W.3d 560 (Tex. App.—Fort Worth 2008). . . . . . . . . . . . . . . . . passim
Pete v. State,
501 S.W.2d 683, 687 (Tex. Crim. App. 1973). . . . . . . . . . . . . . . . . . . . . . . 25
vi
Phillips v. State,
650 S.W.2d 396, 399 (Tex. Crim. App. 1983). . . . . . . . . . . . . . . . . . . . 25, 29
Puckett v. State,
279 S.W.3d 434, 437 (Tex. App.—Texarkana 2009, no pet.). . . . . . . . . . . 38
Ramirez v. State,
65 S.W.3d 156, 158 (Tex. App.– Amarillo, 2001). . . . . . . . . . . . . . . . . . . . 45
Rivera v. State,
990 S.W.2d 882, 891 (Tex. App.—Austin 1999, pet. ref’d). . . . . . . . . . . . 35
Rodriguez v. Young,
906 F.2d 1153, 1161 (7th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Sanders v. State,
715 S.W.2d 771, 775 (Tex. App.– Tyler, 1986). . . . . . . . . . . . . . . . . . . . . . 21
Shaw v. State,
117 S.W.3d 883, 890 (Tex. Crim. App. 2003). . . . . . . . . . . . . . . . . . . . . . 26
State v. Flores,
951 S.W.2d 134, 141 (Tex. App.—Corpus Christi 1997, no pet.).. . . . 31, 34
State v. Jones,
168 S.W.3d 339, 345 (Tex. App.—Dallas 2005, pet. ref’d).. . . . . . . . . . . . 28
State v. Manley,
220 S.W.3d 116, 128 (Tex. App.—Waco 2007, no pet.). . . . . . . . . . . . . . . 34
State v. Munoz,
991 S.W.2d 818, 826 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . 38
State v. Perkins,
911 S.W.2d 548, 551 (Tex. App.—Fort Worth 1995, no pet.).. . . . . . . . . . 26
vii
State v. Rangel,
980 S.W.2d 840, 843-45 (Tex. App.—San Antonio 1998, no pet.).. . . . . . 27
State v. Smith,
66 S.W.3d 483, 489-90 (Tex. App.—Tyler 2001, no pet.).. . . . . . . . . . . . . 26
State v. Smith,
06-12-00174-CR, 2013 WL 624126
(Tex. App.—Texarkana Feb. 20, 2013, no. pet. h.). . . . . . . . . . . . . . . . 35, 38
Strickland v. Washington,
466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Strunk v. United States,
412 U.S. 434 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Bergfeld,
280 F.3d 486, 489 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 36
United States v. Cardona,
302 F.3d 494, 498 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-37
United States v. Doggett,
906 F.2d 573, 582 (11th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . passim
United States v. Serna-Villarreal,
352 F.3d 225, 230 (5th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Wells v. State,
319 S.W.3d 82, 88 (Tex. App.—San Antonio 2010, pet. ref’d).. . . . . . . . . 27
Wiggins v. Smith,
123 S.Ct. 2557, 2536-2538 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Williams v. Taylor,
529 U.S. 362, 405 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
viii
Zamorano v. State,
84 S.W.3d 643, 649 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . 25-26, 33, 35
Statutes, Codes and Constitutional Provisions:
U.S. CONST. XI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
U.S. CONST. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ix
To the Honorable Justices of the Court of Appeals:
Now Comes, Enrique Chavez Aguirre, by and through his attorney, Stanley G.
Schneider, and files this appellate brief requesting that this Court reverse the trial
court judgment and remand this cause to the trial court for a new trial and would
show this Court the following:
Statement of the Case
Appellant was indicted on June 25, 2003, and charged with the felony offense
of aggravated sexual assault of a child wherein it was alleged that he did then and
there unlawfully intentionally and knowingly cause the sexual organ of Yesenia
Nunez, a person younger than fourteen years of age and not the spouse of the
Defendant, to contact the mouth of Enrique Chavez Aguirre. CR 7. Appellant was
arrested on or about October 26, 2013, over ten years after he was indicted. CR 8.
The State filed its notice of intent to use extraneous offenses on September 6, 2014.
The Complainant’s medical records were filed on September 8, 2014, which were
accompanied by an unsworn business record affidavit containing records of a
physical examination conducted on May 29, 2003, by Dr. Rebecca Giradet. CR 18-
30. Appellant was found guilty by a jury on October 22, 2014. The trial court
assessed his punishment at 30 years confinement in the Texas Department of Criminal
Justice.
1
Appellant filed a motion for new trial on November 2, 2014, wherein he
alleged that his attorney was ineffective for not presenting character witnesses and
not raising a speedy trial claim. Attached to the motion was an affidavit from Enrique
Aguirre who stated that in November 2012, the Appellant renewed his permanent
residency application with the United States Immigration Service. As part of that
process, Appellant submitted his fingerprints to the United States Immigration
Service and his permanent residency application was granted. Appellant’s
immigration attorney’s file was attached to the motion for new trial which included
copies of Appellant’s permanent residency card that was renewed in December 2012.
The trial court held a hearing incident to the motion for new trial and after hearing
evidence denied the motion for new trial. Notice of appeal was timely given. The
trial court found that Appellant was indigent for appellate purposes and ordered that
he be furnished a free transcript.
2
Issues Presented
Issue One: The trial court abused its discretion in denying
Appellant’s Motion for New Trial.
Issue Two: Appellant was denied effective assistance of counsel
based on trial counsel’s failure to investigate the law and facts
necessary to present a speedy trial claim based on the delay in his
arrest from the time of the indictment in this cause on June 3, 2003,
to his arrest on October 26, 2013.
Statement of Facts
The record reflects that on October 16, 2014, the trial prosecutor filed a Brady
notice that included notice to the Appellant that the complainant and two witnesses
told the prosecutor that there were events from their past involving the allegations
made in 2003 that they did not remember. Specifically the Brady notice includes the
following:
• The State met with Yesenia Nunez on 10/13/14 and during that
meeting the Complainant stated that she does not remember
which adult she told about the abuse first. She does not
remember her ages during the assaults. She does not remember
where the Defendant’s sexual organ was when he sexually
assaulted her anus.
• The State met with Marisa Nunez on 10/13/14 and during the
meeting the Complainant stated that she does not remember the
CAC interview where she said nothing happened.
• The State met with Andres Nunez on 10/13/14 and the Witness
does not remember seeing the Defendant on top of his sisters and
does not remember seeing the Defendant in bed with his sisters.
CR 39.
3
The trial commenced on October 16, 2014. Prior to trial, the State amended the
indictment without objection.
The State’s first witness was Bertha Martin who stated that in 2003 she worked
at Mata Intermediate in the Alief Independent School District teaching the fifth and
sixth grade. She stated that in 2003 Yeseia Nunez was one of her students. One
morning, Yesenia came into the class room and broke down crying and told the
witness that her stepfather was sexually abusing her. The State illicited the details
of the complainant’s initial outcry. She states that her stepfather is sexually abusing
her. 3 R.R. 38 Yesenia was 11 or 12 years old at the time of the outcry.
Sharon Kinnard was the State’s second witness. Ms. Kinnard was a counselor
at Mata Intermediate School. The State presented Ms. Kinnard as a second outcry
witness. Ms. Martin brought Yesenia Nunez to her office. Ms. Nunez was crying.
3 RR 59. Without objection, Ms. Nunez told the witness that her stepfather was
touching her in a way that he should not have. 3 R.R. 64 Ms. Kinnard then reported
Ms. Nunez’s statement to CPS. 3RR 65
Tammy Hetmaniak, a forensic interviwer employed by the Children’s
Assessment Center was the third witness. Ms. Hetmaniak described the purpose and
procedure used at the Children’s Assessment Center when there is a report of child
abuse. Ms. Hetmaniak interviewed Yesenia Nunez on two different occasions. The
4
witness stated that she had conducted over 6000 interviews of children involving
some sort of abuse. 3 RR 88. The first interview of Yesenia was conducted on May
28, 2003. The State offered a picture of Yesenia and the witness as they appeared
during the forensic interview.
Over objection, the State was allowed to present evidence of both of Yesenia’s
forensic interviews. The first interview was on May 18, 2003. Yesenia told her that
her stepfather was fondling her on her privates. 3 RR 116. She told the witness that
he was touching her front private parts and her back private parts. 3 RR 117.
Yesenia identified her vagina as her front part and her butt as her back part. Yesenia
stated that the abuse started when she was 9 or 10 years old. Yesenia indicated that
her stepfather was touching her over her clothing. 3 RR 118.
The second interview occurred on May 28, 2003. Between the two interviews,
Yesenia underwent a medical examination. Over objection, Yesenia discloses
penetration to front genital area and her back genital area and oral sex by the
defendant to her. 3 RR 122. Yesenia stated that her stepfather peed on her. 3 RR
125. During both interviews, Yesenia was emotional and appears to be embarrassed.
On cross examination, the witness stated that she had no independent
recollection of her interview of Yesenia but relied on her review of the videos to
refresh her memory.
5
Deputy Edwin Chapuseaux, a Harris County Sheriff Deputy was forwarded a
report involving a child Yesenia Nunez to investigate on May 13, 2003. He contacted
Yesenia at the Children’s Assessment Center. The Deputy interviewed the teacher
at school and the school counselor. He wrote an offense report. After observing
Yesenia’s forensic interview and conducting interviews from the school employees,
the deputy identified appellant as a suspect. The witness stated that the offenses
occurred at 13327 Bassford Drive Houston, Texas 77083 in Harris County, Texas.
The witness attempted to interview the Appellant.
The witness stated that after the outcry, Yesenia and her siblings went to live
with her aunt and uncle. He did not know their relation to Appellant or if they
influenced her statements. 3 RR 158.
The complainant’s brother Andres Nunez, Junior testified. He identified his
mother as Maria Socorro Albarrow. In 2003, his mother had a relationship with
Appellant. 3 RR 172. Appellant was living at his house. The house had two
bedrooms. Five people lived in the house. Andres slept in a bed with his two sisters.
The witness described times that Appellant would go into his bedrooom with Yesenia
and shut the door. He would force Andres to stay in another room. 3 RR 195.
When he was 9, CPS took him away from his mother and sent him to live with
his aunt and uncle. He never lived with mother again.
6
On cross examination, Andres stated that Enrique Jr. Appellant’s said visited
them and went to Hicks Elementary School with him. Enrique Jr. slept on the couch
in the living room.
Deputy Chapuseaux was recalled by the Defense. The witness stated that his
prior testimony was based on his refreshing his memory from the report rather than
based on his independent recollection. His report did not document who was living
with Appellant and the complainant at the time of the incident. 4 RR 7. At some
point during the original investigation, the witness contacted Hicks Elementary
School regarding the Appellant’s son Enrique Aguirre Jr. 4 RR 8. The witness
believed that Enrique Aquirre Jr. lived with Appellant at the time of the offense. The
complainant’s Aunt called the police. At one point Enrique Jr. was found at the
elementary school. At some point, Enrique Jr. was taken out of the school and
disappeared.
Yolanda Alpough, an employee of the Department of Family and Protective
Services concerning her investigation of the allegations of Yesenia Nunez. The
witness refresh her memory of her investigation by reviewing her report that was in
possession of the prosecutor and the tape of the forensic interview. 4 RR 19.
Without objection, Ms.Alpough repeated the allegations made by Yesenia to her. 4
RR 21. After she repeated the story, Yesenia was transported to the Children’s
7
Assessment Center because she said that she had been sexually abused and an
investigation had to be conducted. The witness stated that she interviewed Yesenia
mother who did not believe the allegations. Ms. Alpough stated that Appellant’s son
was living with the family at the time of the allegations. 4 RR 32. Ms. Alpough
stated that Yesenia told her that Appellant tried to have sexual assault with her.
Yesenia never told Ms. Alpough that Appellant engaged in oral sex on her. 4 RR 39.
Dr. Rebecca Girardet, a medical doctor and an associate professor in the
department of pediatrics testified concerning her examination of Yesenia on May 29,
2003. A copy of the medical records were introduced into evidence. Yesenia
indicated that Appellant engaged in vaginal sex and anal sex. There is no indication
of oral sex. 4 RR 53. The complainant stated that Appellant did not ejaculate. The
physical examination of Yesenia looked normal with no injuries or scarring. There
was nothing in the examination that indicated that Yesenia had been sexually
assaulted. The doctor explained that often injuries are not visible because children
do not know how to describe what actually happened or describe actual penetration.
An intact hymen does not mean that a sexual assault did not occur. Dr. Girardet
concluded that her physical examination neither proved or disprove sexual abuse. 4
RR 62.
Yesenia Nunez testified to describe the basis of the allegations against
8
Appellant. She did not remember when he moved in with her family. Yesenia stated
that she lived her mother, sister brother and Appellant. His son Enrique would
sometime stay with them. She remembered telling Ms. Martin that her mother’s
boyfriend was touching her. Ms. Martin took her to the counselor’s office and told
her story. Yesenia stated that she was reluctant to tell her story because she was
scared. A CPS worker came to the school and she then went to the Children’s
Assessment Center.
Yesenia stated that one night after she showered, Appellant came into her room
while she was in bed. Appellant got into bed with her. Appellant not wearing a shirt
and he was in his underwear. Yesenia stated that Appellant went under the sheets and
he started touching her legs and her thighs with his hands. 4 RR 106-108. Appellant
either moved her shorts or removed them and began to touch her private parts. He
then spread her legs apart and placed his face on her vagina and placed his tongue on
her vagina. 4 RR 110-111. Appellant would not say anything nor did he ejaculate.
Yesenia stated that the abuse was ongoing and that he would continuously touch her.
The abuse would occur with her mother brother and sister in the house.
Yesenia stated that she never told her mother what was happening and at the
time of the trial, they did not communicate. After she told the teacher at school, she
never went home again. 4 RR 120.
9
Yesenia stated that at the time of the alleged incident five people lived in a
small house. At times there were six people staying at the house. Her mother did not
work. Appellant supported her family. Yesenia was comfortable living with her aunt.
Yesenia did not tell Ms. Martin about the oral sex. On cross-examination, Yesenia
recounted the oral sex experience with Appellant.
Hearing on Motion for New Trial
On January 2, 2014, a hearing was held incident to Appellant’s motion for new
trial. Appellant was not present. The Court took judicial notice of its file and all of
its contents. The only witness called by Appellant was his trial attorney Mike Monks.
The record reflects that the charges were filed in this cause on July 24, 2003.
The return on the indictment was filed on October 20, 2013.
Mr. Monks stated that the indictment indicated that it was received in the
Clerk’s office on July 26, 2003. Mr. Monks stated that the indictment was returned
after being served on October 26, 2013. Mr. Monks stated that his file contained no
notes or investigation of the law incident to Appellant’s constitutional right to a
speedy trial. When Mr. Monks first met Appellant he did not inquire about his
immigration status. 7 RR 12-13. Mr. Monks stated that the Appellant’s immigration
status was not relevant to the defense of the allegations. 7 RR 13. Appellant told him
that he was living in Mexico and his son was living in McAllen.
10
Mr. Monks reviewed Defense Exhibit Number 1 which contained a Notice of
Action an I-797 which appears to be from the Department of Homeland Security
dated December 3, 2012. The document reflects Appellant had to appear in Las
Vegas on December 28, 2012, concerning his application for renewal of permanent
residency status. The letter reflects that he is to be fingerprinted at the meeting. The
fact that Appellant was in contact with Homeland Security. And, at the time of his
arrest, Appellant had a permanent residence card. Mr. Monks stated that in order to
become a permanent resident, one must have their fingerprints submitted for review.
The documents in Defense Exhibit Number 1 indicates that Appellant was to appear
in Las Vegas to pick up his new permanent residence card which was in his
possession at the time of his arrest. 7 RR 21.
Mr. Monks believed that if there was a warrant for his arrest, he would not have
been issued a permanent residence card.
There are no written notes indicating where Appellant was living. 7 RR 25.
Mr. Monks file contains no information of Appellant’s prior residence or his contacts
with the United States. There were no notes contained in Mr. Monks file that
indicates that he ever interviewed Appellant’s son. 7 RR 27. Mr. Monks did not ask
questions of Appellant’s son concerning the type of father Appellant was because he
was afraid that it might open the door to evidence that Appellant fled the country.
11
Mr. Monks did not conduct any investigation concerning Appellant entering the
United States or living in the United States. And, there was no investigation in the
law contained in his file. 7 RR 31. Mr. Monks admitted that he conducted no
research pertaining to Appellant’s Sixth Amendment right to a speedy trial. 7 RR 33.
Appellant told Mr. Monks that he left Harris County based on the advice of
counsel. Mr. Monks did not investigate the basis fo that advice. Mr. Monks did not
investigate Appellant’s contact with his family in the United States. 7 RR 36-37. Mr.
Monks entire file was introduced into evidence. Mr. Monks admitted that he did not
investigate the law and facts incident to Appellant’s Sixth Amendment Right to a
Speedy Trial. 7 RR 43. Mr. Monks did not read any law incident the Sixth
Amendment right to a speedy trial. Mr. Monks did not read the Supreme Court’s
decision in Doggett v. United States. He did not read O’Brien v. United States.
Defense Exhibit Number 1 indicates that Appellant resided in Henderson, Nevada.
The trial court entered the following findings of fact at the conclusion of
Appellant’s hearing on Motion for New Trial:
THE COURT: Back on the record. The record will further reflect that
based on credible testimony of the Defendant’s trial attorney, Michael
Monks, and having presided over the trial of the Defendant the court
makes the following findings:
1. That the Defendant was charged on July 24, 2003, with the
offense of aggravated sexual assault of a child alleged to have been
12
committed on or about May 23rd, 2003. Complainant was a
Y-N-omitting her name, a child under 14 years of age.
2. The complaint was filed in the case as a non-arrest, to be arrested
case, on June 5, 2003, and a warrant was issued for the Defendant’s
arrest on June 6, 2003. The case was indicted on July 25th, 2003, and I
guess a warrant was issued -- a capias issued July 26th, 2003, the day
after the indictment. It was issued to the Harris County Sheriff’s Office
and executed October 26th, 2013, by the Harris County Sheriff’s Office
by placing the Defendant in custody. The record is devoid of how the
Defendant was arrested, where he was arrested on the open warrant or
if he was arrested or turned himself in or arrested by some authority
somewhere else.
3. After several settings the case was set for jury trial along with a
Motion to Adjudicate Guilt hearing and a companion case, probation
case pending in court, possession of a controlled substance case.
4. On a plea of not guilty at the trial setting the jury found the
Defendant guilty and after a punishment hearing the court assessed
punishment at 30 years confinement in the Texas Department of
Criminal Justice Institutional Division.
5. The jury heard the case-in-chief as well as some character
evidence put on by Defense.
6. Character evidence and factual evidence in the form of the
Defendant’s son, Enrique Aguirre El Cantel, and the Defendant’s
brother, Jaime Chavez Aguirre, I believe. But then in the trial before the
court Jaime was named Jaime Aguirre Chavez as opposed to the name
of Jaime Chavez Aguirre.
7. The State presented punishment evidence in the form of the
complainant’s sister and her initials will be MN to avoid giving her
name on the record to the indictment, what’s in the record. At the time
of the alleged offense she was approximately a little bit over 14 years of
age. The State offers punishment evidence as to extraneous offenses
13
allegedly committed by the Defendant.
8. Based upon the court’s recollection of the evidence adduced at
both phases of the Defendant’s trial and the Motion for New Trial
hearing the court finds that based upon the credible testimony of
attorney Michael Monks, attorney Monks’ decision to not raise the
speedy trial issue pretrial or during trial was based upon reasonable trial
strategy.
9. Attorney Monks’ trial performance in using the strategy to not
litigate the speedy trial issue, pretrial and for that matter during the trial,
was not deficient performance inasmuch as the key factor in the four
part Barker analysis prejudice set out -- Barker analysis for prejudice set
out in the Barker versus Wingo case cited by Defense counsel. The
reason for the delay namely -- strike that. Barker versus Wingo, namely.
The reason for the delay relative to the issue of presumptive prejudice
due to the delay from the time of the indictment to the time of the
Defendant’s arrest was due based upon Mr. Monks’ credible testimony
that the Defendant left the jurisdiction to avoid arrest and prosecution
for the offenses contained in the indictment in Cause Number 0873112
-- strike that -- 0950986, and for the pending case in Cause Number
0873112, possession of a controlled substance, probation violation case
that was then pending.
10. The court finds that from the record in the trial of the cause, the
evidence deduced at the Motion for New Trial as to the other two Barker
factors, the Defendant did assert his right to a speedy trial after his arrest
and the Defendant was tried on the merits and has not shown that the
delay in going to trial in this case prejudiced the Defendant; although,
a delay of 10 years is presumptively and was presumptively prejudicial.
11. During the trial Attorney Monks called the Defendant’s son,
Enrique Aguirre El Cantel, to testify as to the character of the Defendant
as well as some details as to the timeframe when this witness lived with
the Defendant -- with the complainant and complainant’s family
members. The court finds that attorney Monks’ strategy of not
developing further this line of inquiry was a strategic decision not to
14
delve further into the living arrangements or other details as to why --
as to why the witness and the Defendant left shortly after -- well, left
when they left. This decision was made so as not to open the door to
further cross-examine by the State as to when the Defendant moved out
of the house and why he went to abscond.
12. Based on the credible testimony of attorney Monks, and the
court’s recollection of the trial the court finds that the evidence adduced
at the Motion for New Trial hearing does not establish that had attorney
Monks litigated the speedy trial issues that the Defendant would prevail
on its appeal of the court’s ruling as to any denial of the Motion to
Dismiss the indictment for lack of a speedy trial and as such a violation
of the Texas and U. S. Constitutional Provisions for speedy trial under
the 14th Amendment to the U.S. Constitution and the applicable Texas
Constitutional Provisions.
13. The court finds that once arrested the Defendant exercised his
right to a speedy trial and any delay between the indictment and his
ultimate arrest was due largely to the Defendant’s absenting himself
from the country.
14. Based on the credible testimony of attorney Monks, the court
finds that attorney Monks had no knowledge or information from the
Defendant or his family that the Defendant was living in the U. S. at any
time from the date of the indictment to the time of a rest.
15. Based upon the credible testimony of attorney Monks, the court
finds that attorney Monks was not made aware that the Defendant had
set out the city of Henderson, Nevada, as his place of residence when he
used a Form I-90 and applied for a replacement of an alien registration
card on 11-26-2012, using the name Eugene -- no, Enrique Aguirre
Chavez, as set out in Defendant’s Exhibit Number 1 adduced at the
Motion for New Trial hearing.
16. Based upon the credible testimony of attorney Monks, the court
finds that Defendant, while aware of the pretrial, that the Defendant’s
son who lived in McAllen, Texas, was unaware as to whether the
15
Defendant lived in Texas, in Nevada or in Mexico; nor was he aware
that the Defendant reentered the country a number of times over the
period -- 10 year period from 2003 to 2013 to visit his son in McAllen,
Texas, if he did.
17. The court, based upon the court’s recollection of the trial and
attorney Monks’ credible testimony, Monks’ failure to call additional
character witnesses at the guilt or innocence stage was a reasonable
strategic decision so as to not to run the risk of opening the door to more
extraneous offenses that the State had noticed to Defense counsel by
means of pretrial motions filed by the State.
18. The court finds that the facts in Doggett versus United States cited
by Defense counsel, the court finds that those facts are distinguishable
from the facts in this case in that the delay in arresting the Defendant in
this case was not due to negligence on the part of the State. The only
evidence of any potential negligence was the Defendant receiving a
copy of his alien registration card, which he applied for and apparently
received or, at least, he was given notice that it was going to be in the
mail, which involved one visit to the Homeland Security office in Las
Vegas, I believe, and the taking -- and probable taking of fingerprints at
that time. State’s Exhibit Number 1 reflects the name of the applicant as
Enrique Aguirre Chavez, which is different from any order of names
from the name in the indictment of Enrique Chavez Aguirre. That is the
single bit of evidence in front of the court concerning any possible
negligence by the State. Given the fact that attorney Monks had in his
possession information that the Defendant voluntarily absented himself,
attorney Monks’ decision not to pursue a speedy trial dismissal action
was one based on trial strategy.
19. The record before the court is devoid of any facts that demonstrate
by a preponderance of the evidence that attorney Monks’ representation
fell below an objective standard of reasonableness. And that but for
attorney Monks’ unprofessional errors as to investigating the case,
researching the law, the outcome of the jury trial would have been
different or the outcome of the attempted or actual filing of the Motion
to Dismiss for Want of Speedy Trial would have been different.
16
20. Based upon the trial court’s recollection of the trial of the cause
and having reviewed Defendant’s Exhibits 1, 2 and 2-A admitted at the
Motion for New Trial hearing, considering Defendant's memorandum of
law filed, the Motion for New Trial on its face, arguments of counsel,
the court finds that attorney Monks did conduct investigation of the facts
and while not researching the case law, specifically, relative to speedy
trial issues he did recognize the key Barker factor as to the reason for the
delay such that he did render effective assistance of counsel.
21. Accordingly, based on the totality and the representation by Mr.
Monks and the particular circumstances in the trial of this case the court
finds that attorney Michael Monks rendered reasonably effective
assistance of counsel and accordingly the Motion for New Trial is
denied. That concludes this hearing. 7 RR 6-13
Appellant objected to the findings entered by the Court. 7 RR 13.
Argument and Authorities
in Support of Issues One and Two
The trial court abused its discretion in denying Appellant’s motion for new
trial. The Court found that the trial counsel failed to research the case law relative to
Appellant’s constitutional right to a speedy trial. The trial court also found that trial
counsel was not aware of the facts that Appellant resided in Henderson, Nevada and
had applied for and renew his permanent residence with the Department of Homeland
Security. Thus, trial counsel failed to investigate the law necessary to present a claim
that Appellant’s right to a speedy trial was abrogated. The essence of a sixth
amendment right to effective assistance of counsel is based on trial counsel’s
investigation of the law and facts necessary to present a defense. In addition to the
17
factual allegations presented, trial counsel was retained in 2013 upon Appellant’s
arrest to defend an allegation of aggravated sexual assault of a child.
Ineffective Assistance of Counsel
The United States and Texas Constitutions guarantee all persons the right to
counsel during any criminal proceeding. The right to counsel is the right to the effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441,
1449 n.14, 25 L.Ed.2d 763 (1970). Claims of ineffective assistance of counsel are
evaluated under the test promulgated in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed 2d 674 (1984), which held that effectiveness of counsel’s assistance
is to be evaluated against the backdrop of the rationale behind the Sixth Amendment’s
purpose in mandating effective counsel, which is to ensure a fair trial. Strickland, 466
U.S. at 687, 104 S.Ct. at 2064. First, an accused must prove that counsel’s performance
was deficient, which requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the
accused must show that counsel’s deficiency prejudiced the defense, which requires
showing that counsel’s errors deprived the defendant of a fair trial: that is, a trial whose
result is reliable. Id. In reviewing a claim of ineffective assistance, the court must make
every effort to avoid hindsight and evaluate the attorney’s conduct from counsel’s
perspective at the time of his representation. Strickland, 466 U.S. at 690, 104 S.Ct. at
18
2066. Thus, to prevail on a claim of ineffective assistance of counsel, the defendant must
overcome the strong presumption that, under the circumstances, the attorney’s conduct
might be considered sound trial strategy. Id. To overcome this presumption, a convicted
defendant must identify the particular acts or omissions that he alleges are not the result
of reasonable professional judgment. Id. The court must then determine whether the
identified acts or omissions fell outside the wide range of professionally competent
assistance. Id.
Whether a defendant’s counsel was effective “must be determined upon the
particular circumstances of each individual case.” Ex parte Raborn, 658 S.W.2d 602,
605 (Tex. Crim. App. 1983). Generally, the court must view trial counsel’s performance
as a whole. Thus, even though no single instance or error may be sufficient standing
alone to constitute ineffective assistance of counsel, several or multiple errors may
“compel such a holding.” Ex parte Welborn, 785 S.W.2d 391, 396 (Tex. Crim. App.
1990).
Among counsel’s duties is that of making an independent investigation of the
facts of his client’s case. Ex parte Ewing, 570 S.W.2d 941, 947(Tex. Crim. App.
1978). The Court of Criminal Appeals has stated:
It is fundamental that an attorney must have a firm command of the facts
of the case as well as the law before he can render reasonably effective
assistance of counsel. [citations omitted] A natural consequence of this
19
notion is that counsel also has a responsibility to seek out and interview
potential witnesses and failure to do so is to be ineffective, if not
incompetent, where the result is that any viable defense available to the
accused is not advanced.
Ex parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983).
In addition to his duty to engage in a reasonable investigation of the law and
the facts impacting his client’s case, trial counsel has a duty to “present all available
evidence and arguments to support the defense of his client.” Jackson v. State, 857
S.W.2d 678, 683 (Tex.App.– Houston [14th Dist.], 1993). Trial counsel also has a
duty to subject the State’s case to the crucible of adversarial testing and may not take
it upon himself to play the trial judge’s role by assuming that evidence that is clearly
prejudicial and yet subject to exclusion is admissible. See Rodriguez v. Young, 906
F.2d 1153, 1161 (7th Cir. 1990) (“Criminal defense lawyers should not preempt judges
by making their own negative rulings on close motions concerning crucial
testimony.”).
Strategic choices made after a thorough investigation of the law and facts
relevant to plausible options are virtually unchallengeable under ineffective
assistance of counsel claims. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim.
App.), cert. denied, Kunkle v. State, 114 S.Ct. 122, 126 L.Ed.2d 87 (1993). However,
strategic choices made after a less than complete investigation are reasonable only to
20
the extent that “reasonable professional judgments support the limitations on
investigation. Id. at 505.
The Supreme Court has made clear that a reviewing court’s “principal
concern” is not whether counsel’s conduct was strategic, “but rather whether the
investigation supporting counsel’s decision ... was itself reasonable [because]
Strickland does not establish that a cursory investigation automatically justifies a
tactical decision...” Wiggins v. Smith, 123 S.Ct. 2557, 2536-2538 (2003) (emphasis
in original). See also Lewis v. Dretke, 355 F.3d 364, 368 (5th Cir. 2003)(emphasis
added) (“It is axiomatic -- particularly since Wiggins – that such a decision cannot
be credited as calculated tactics or strategy unless it grounded in sufficient facts,
resulting in turn from an investigation that is at least adequate for that purpose.”);
Moore v. Johnson, 194 F.3d 586, 604 (5thCir. 1999) (“The Court is ... not required to
condone unreasonable decisions parading under the umbrella of strategy, or to
fabricate tactical decisions on behalf of counsel when it appears on the face of the
record that counsel made no strategic decision at all.”).
Trial counsel’s failure to engage in the full pretrial legal and factual
investigation that would have resulted in the exclusion of critical evidence was
objectively deficient. See Sanders v. State, 715 S.W.2d 771, 775 (Tex. App.– Tyler,
1986) (failure to investigate facts and circumstances of confession and to suppress
21
confession was deficient conduct); Doles v. State, 876 S.W.2d 741, 746 (Tex. App.–
Tyler, 1989) (failure to object to extraneous offenses was objectively deficient
conduct).
In Banks v. State, 819 S.W.2d 676, 682 (Tex. App.– San Antonio 1991, pet.
ref'd), the Court found ineffective assistance of counsel because of trial counsel’s
failure to be familiar with the law applicable to the case. The Court aptly noted that
“[c]ounsel has a duty to bring to bear such skill and knowledge as will render the trial
a ‘reliable adversarial testing process.’” Id. (quoting Strickland v. Washington, 466
U.S.at 688.
In Ex parte Ybarra, 629 S.W.2d 943, 949 n.15 (Tex. Crim. App. 1982), a
general failure to object contributed to the Court’s finding of ineffective assistance
of counsel. Additionally, the lodging of the wrong objection on other occasions
contributed to the finding. Id. at 951 n.25. In Ex parte Welborn, 785 S.W.2d 391,
392 (Tex. Crim. App. 1990), a failure to object to two instances of hearsay and a
failure to object to an extraneous offense constituted three of six reasons that the
Court found constituted ineffective assistance of counsel. In response to the claim
that there was no objection because the extraneous offense might have been
admissible as res gestae, the Court firmly noted:
The possibility that the statement was admissible under some theory of
22
law should not alleviate counsel’s burden to put the State’s case to that
“adversarial testing process” contemplated by the Strickland standard.
By failing to object, counsel insured that no such testing process took
place.
Welborn,785 S.W.2d at 395.
Additionally, the Court in Welborn noted that some cross-examination
evidenced “that counsel was confused as to the applicable law.” Id. at 394. Here, as
in Welborn, the record would plainly indicate that Defendant’s counsel was
unfamiliar with basic rules of evidence and the rules regarding how to preserve error.
The record further reflect that counsel was woefully unprepared to deal competently
with the facts of the case, both because of insufficient pretrial investigation and
because of his failure to sufficiently prepare to deal with the facts that he did know.
The trial court found that trial counsel failed to familiarize himself with the law
necessary to present a speedy trial claim which prejudice Appellant. Appellant
asserts that based on the evidence presented, no trial should ever have been held and
the charges against him should have been dismissed.
Law Pertaining to Speedy Trial
The right to a speedy trial is guaranteed by the Sixth Amendment and applies
to state criminal proceedings through the Fourteenth Amendment. U.S. Const. amend.
VI; Klopfer v. North Carolina, 386 U.S. 213, 223-26 (1967). A violation of the
23
speedy trial right, if found, requires dismissal of the indictment. See Strunk v. United
States, 412 U.S. 434, 439-40 (1973). In Barker v. Wingo, 407 U.S. 514 (1972), the
Supreme Court prescribed several factors to be considered when evaluating a speedy
trial claim:
(1) the length of the delay,
(2) the reason for the delay,
(3) the defendant's assertion of his right to speedy trial, and
(4) prejudice to the defendant.
Barker, 407 U.S. at 530.
A. Length of the delay
The first Barker factor, the length of the delay, consists of a two-part inquiry.
First, the delay must be extensive enough to give rise to a presumption of prejudice
that triggers examination of the remaining Barker factors. See Doggett v. United
States, 505 U.S. 647, 651-52 (1992); see also Barker, 407 U.S. at 530-31. As the
Supreme Court has observed, courts generally view a delay of approximately one year
as sufficient to require a full Barker analysis. Doggett, 505 U.S. at 652. This is the
rule in the Fifth Circuit. United States v. Serna-Villarreal, 352 F.3d 225, 230 (5th Cir.
2003) (citing United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir. 2002).
24
Under Texas law, there is no precise time period that triggers the Barker
analysis. However, the Court of Criminal Appeals has held that while a delay of four
months is not sufficient, a seventeen-month delay is. Cantu v. State, 253 S.W.3d 273,
281 (Tex. Crim. App. 2008) (citing Pete v. State, 501 S.W.2d 683, 687 (Tex. Crim.
App. 1973) (“Appellant herein was tried [for rape] approximately four months after
he was bench warranted from the Texas Department of Corrections. It is our opinion
that this short period of time could in no way be construed as ‘presumptively
prejudicial.’”); Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim. App. 1983)
(“Although there is no precise length of delay which irrefutably constitutes a violation
of the right to a speedy trial in all cases, . . . a seventeen month delay is sufficient to
raise the issue.”). Texas courts generally hold that depending on the nature of the
charges, a post-accusation delay of about one year is “presumptively prejudicial.” See
Orand v. State, 254 S.W.3d 560, 566 (Tex. App.—Fort Worth 2008) (quoting
Doggett, 505 U.S. at 652).
Once the accused shows that the interval between the accusation and trial has
crossed the threshold dividing “ordinary” from “presumptively prejudicial” delay,
under the length-of-delay factor, the court must then consider the extent to which that
delay stretches beyond the bare minimum needed to trigger judicial examination of
the claim. Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002) (quoting
25
Doggett, 505 U.S. at 652, 112 S. Ct. at 2690-91). This second inquiry is significant
to the speedy trial analysis because the “presumption that pretrial delay has
prejudiced the accused intensifies over time.” Id.; Orand, 254 S.W.3d at 566.
In the present case, the more than ten year delay between Defendant’s
indictment and his arrest is amply sufficient to trigger a speedy trial analysis under
inquiry. See, e.g., Doggett, 505 U.S. at 657-58, 112 S. Ct. at 2693-94 (granting relief
based on an eight-and-a-half-year delay between Doggett’s indictment and arrest);
Zamorano, 84 S.W.3d at 649 (reversing trial and appellate courts’ failure to grant
relief based on a two-year, ten-month delay between appellant’s arrest and the hearing
on his speedy trial motion); State v. Perkins, 911 S.W.2d 548, 551 (Tex. App.—Fort
Worth 1995, no pet.) (affirming relief granted based on two-year, nine-month delay
between indictment and the speedy trial hearing); see also Shaw v. State 117 S.W.3d
883, 890 (Tex. Crim. App. 2003) (a delay of 38 months between indictment and trial
requires a presumption of prejudice); Dragoo v. State, 96 S.W.3d 308, 316 (Tex.
Crim. App. 2003) (“The court of appeals also held that the 3½ year delay between
appellant's arrest and trial was ‘patently excessive’ and, in itself, ‘presumptively
prejudicial’ to appellant's defense. In accordance with precedent, we must agree with
that assessment.”); Gonzales v. State, PD-0724-12, 2013 WL 765575 (Tex. Crim.
App. Feb. 27, 2013); State v. Smith, 66 S.W.3d 483, 489-90 (Tex. App.—Tyler 2001,
26
no pet.) (affirming relief granted based on five-year delay between date of charging
instrument and resolution of the case); State v. Rangel, 980 S.W.2d 840, 843-45 (Tex.
App.—San Antonio 1998, no pet.) (affirming relief granted based on twenty-month
delay between defendant’s arrest and the speedy trial hearing).
In this case, since the delay stretches far beyond the minimum needed to trigger
the inquiry, this factor should weigh very heavily in favor of the Defendant. The over
ten year delay in this case is not only presumptively prejudicial, it stretches far, far
beyond the approximately twelve-month minimum delay necessary to trigger judicial
examination of a speedy trial claim. Thus, the length of the delay here should weigh
extremely heavily against the State and in favor of the Defendant.
B. Reason for the delay
Once it has been determined that a presumptively prejudicial delay has
occurred, the State bears the initial burden of providing a justification for the delay.
Wells v. State, 319 S.W.3d 82, 88 (Tex. App.—San Antonio 2010, pet. ref’d). The
weight assigned to a state’s reasons for post-accusation delay depends on the reasons
proffered. Barker, 407 U.S. at 531. At one extreme, a deliberate delay to disadvantage
the defense is weighted heavily against the state. Id. At the other end of the spectrum,
delays explained by valid reasons, such as a missing witness, weigh in favor of the
state. See Cowart v. Hargett, 16 F.3d 642 (5th Cir. 1994) (discussing Barker).
27
Between these extremes, a more neutral reason, such as negligence or overcrowded
courts, should be weighted less heavily, but nevertheless should be considered
because the ultimate responsibility for such circumstances must rest with the
government rather than with the defendant.” Barker, 407 U.S. at 531 (viewing
negligence as a “more neutral reason…[that] should be weighted less heavily” than
an intentional delay). Finally, when no valid reason is offered, the court may presume
that the reason lies somewhere between a deliberate delay and a valid reason that
would justify the delay. See Bosworth v. State, 06-12-00058-CR, 2013 WL 563321
(Tex. App.—Texarkana Feb. 15, 2013, no. pet. h.) (citing Dragoo, 96 S.W.3d at 314).
Under Texas law, when a defendant’s location is known, or could have easily
been discovered, the State is required to exert due diligence in obtaining their
presence for trial. State v. Jones, 168 S.W.3d 339, 345 (Tex. App.—Dallas 2005, pet.
ref’d); Guajardo v. State, 999 S.W.2d 566, 570 (Tex. App.—Hous. [14th Dist.] 1999,
pet. ref’d). In Guajardo, the court found this factor to weigh very heavily against the
State, verging on a deliberate hampering of the defense, where the sheriff’s
department used an incorrect address to try to locate the defendant. The court
observed:
At best, the TDHS and the Sheriff’s Department were grossly negligent
in their efforts to locate the appellant. While we do not believe that their
actions were done as a deliberate attempt to hamper the appellant’s
28
defense, their actions do not fall very far below this level, and they are
certainly more than mere negligence.
Id. Similarly, in Phillips, the court found the state responsible for the delay and
weighed this factor heavily against the State when it appeared that the State’s own
files contained the information necessary to locate the defendant. 650 S.W.2d 396,
400 (Tex. Crim. App. 1983). The court noted, “[t]he speedy trial right is too
important to sanction neglect, even if nonwilful.” Id.
In Doggett, the Court found that the government was negligent in failing to
locate, track down, and apprehend the defendant. In Doggett, government agents
learned that the defendant had left for Colombia a few days before police officers
attempted to arrest him at his parents’ house in North Carolina in 1980. Doggett, 505
U.S. at 648-49. A DEA agent placed the defendant’s name in the TECS database to
catch him upon his return, but the entry lapsed in less than a year. Id. at 649. The
same agent later learned that the defendant was arrested in Panama in 1981, but rather
than initiate extradition proceedings he simply asked Panama to expel the defendant
to the United States. Id. The State Department learned that the defendant left
Panama for Colombia in 1982, but did not communicate this information to the DEA.
Id. The original DEA agent on the case later fortuitously learned of the defendant’s
move in 1985 but made no effort to confirm this information or track down the
29
defendant either abroad or in the United States. Id. at 649-50. In fact, the defendant
had returned to the United States in 1982. Id. at 649. He settled in Virginia, married,
earned a college degree, and found a steady job, all under his own name. Id. In 1988,
the Marshal’s Service ran a credit check on several thousand people subject to
outstanding arrest warrants and located the defendant within minutes. Id. at 650. The
Court held that the government’s lethargic efforts to apprehend Doggett constituted
“findable negligence.” Id. at 652-53.
In Orand v. State, 254 S.W.3d 560, 563 (Tex. App.—Fort Worth 2008, pet.
ref’d), the State provided no explanation for its failure to make even a single effort
to apprehend the defendant. The court held that in the absence of any explanation,
the delay weighed heavily against the State. The record in Orand revealed that the
grand jury returned an indictment on June 9, 1994, charging the defendant with
indecency with a child. The incident had occurred in June 1992 in the City of Lake
Dallas in Denton County. The defendant was eighteen or nineteen years old at the
time of the offense and was the uncle of the victim. Although a warrant issued in
1994 for the defendant’s arrest, he did not learn of the indictment or warrant for
almost twelve years. The defendant was living with his mother, the grandmother of
the victim, for the entire twelve-year period. In February 2006, the defendant finally
learned of the warrant and immediately turned himself in to authorities. The court
30
found that because the defendant could easily have been located, the state was
negligent in failing to apprehend him and bring him to trial. Id.
Likewise, in the present case, this factor should weigh heavily against the state
because the government’s negligence is responsible for the lengthy delay between
Defendant’s indictment and arrest. The record reflects that he applied for a renewal
of his permanent residency status with the United States Government. The record
reflects that he was living in Henderson, Nevada. The record reflects that he retained
an attorney in McAllen Texas and that he was traveling back and forth from Mexico
to the United States. The record reflects that Appellant was fingerprinted as part of
the renewal of his permanent residency status. At no time was he arrested on any
outstanding warrants. Clearly, the State was negligent in issuing any warrant
associated with these charges.
The State’s negligence, however innocent, militates against the State.
Branscum v. State, 750 S.W.2d 892, 895 (Tex. App.—Amarillo 1988, no pet.); State
v. Flores, 951 S.W.2d 134, 141 (Tex. App.—Corpus Christi 1997) (delay caused by
negligent administrative errors in district attorney’s office militates against the State
in Sixth Amendment analysis); Orand v. State, 254 S.W.3d 560 (Tex. App.—Fort
Worth 2008) (“In the absence of any explanation, the delay weighs against the
State.”). When the government's negligence causes delay and when presumed
31
prejudice is uncontroverted, the defendant should be afforded relief on speedy trial
grounds. Empak at 624; Doggett, 112 S.Ct. at 2693. This factor weighs heavily
against the State.
The fact that the Defendant left the country is of no material significance to this
factor. He then returned to the United States. He lived openly in Henderson Nevada
and in McAllen Texas with his son. His brothers lived in Houston. He was readily
accessible to be formally charged, arrested and brought to trial. More importantly,
he left the country before he was indicted or knew of any actual charges were filed
against him. When he returned the United States, he had no reason to know that he
should assert his rights to a speedy trial and could not have possibly acquiesced in the
lengthy delay. See Doggett, 505 U.S. at 652; c.f. United States v. Escamilla, 244 F.
Supp. 2d 760, 769 (S.D. Tex. 2003) (distinguishing from the facts of Doggett and
finding the defendant’s conduct of fleeing from authorities post indictment was the
primary reason for the delay).
C. Assertion of the right
The nature of the speedy trial right makes it impossible to pinpoint a precise
time in the process when the right must be asserted or waived, but that fact does not
argue for placing the burden of protecting the right solely on defendants. Barker, 407
U.S. at 527, 92 S. Ct. at 2190. The right to a speedy trial is constitutionally
32
guaranteed and, as such, is not to be honored only for the vigilant and the
knowledgeable. Id. at n. 527, 92 S. Ct. at 2190 (quoting Hodges v. United States, 408
F.2d 543, 551 (8th Cir. 1969)). Consequently, the United States Supreme Court has
expressly rejected the proposition that a defendant who fails to demand a speedy trial
has forever waived his right. Id. at 528, 92 S. Ct. at 2191 (stating “[w]e reject,
therefore, the rule that a defendant who fails to demand a speedy trial forever waives
his right.”). This does not mean, however, that a defendant has no responsibility to
assert his right. Id., 92 S. Ct. at 2191. The better rule is that the defendant’s assertion
of or failure to assert his right to a speedy trial is one of the factors to be considered
in an inquiry into the deprivation of the right. Id.; Orand v. State, 254 S.W.3d 560,
568 (Tex. App.—Fort Worth 2008).
In Doggett, the Court further explained that when a defendant does not know
of the indictment or warrant he cannot be “taxed” for invoking his speedy trial rights
only after his arrest. Doggett, 505 U.S. at 653-54. Moreover, as the Court in Doggett
asserted, a defendant’s failure to assert his speedy trial rights at the earliest possible
opportunity does not trigger a waiver of the right in absence of evidence that a waiver
was intended. Doggett, 505 U.S. at 654. Indeed, it is the duty of state, not the
defendant, to bring the defendant to trial. Zamorano, 84 S.W.3d at 651 (citing Barker,
407 U.S. at 534-36).
33
Embracing the holding of the Doggett Court, in Deluna, the court held that
because the defendant did not know there was an indictment against him, was not
represented by counsel, and had not been notified of his right to a speedy trial, this
factor would weigh against him only slightly. Deluna v. State, 2012 Tex. App.
LEXIS 7209, 14-15 (Tex. App.—Dallas Aug. 27, 2012). Similarly, in Flores, the
court declared that “a criminal defendant cannot be expected to demand a trial before
he is charged.” State v. Flores, 951 S.W.2d 134, 141 (Tex. App.—Corpus Christi
1997, no pet.)
Moreover, it seems that the issue of whether the defendant’s speedy trial right
was timely asserted should be treated differently by the trial court on a motion to
dismiss then on appeal. This is not expressly stated anywhere in the case law.
However, several appellate decisions contend that a defendant should not be able to
use a speedy trial claim to try to get out of actually having to go trial. For example,
in State v. Manley, the court averred that a defendant's lack of a timely demand for
a speedy trial “indicates strongly” that he or she did not really want a speedy trial;
thus, inaction weighs more heavily against a violation the longer the delay becomes.
State v. Manley, 220 S.W.3d 116, 128 (Tex. App.—Waco 2007, no pet.) (citing
Harris v. State, 827 S.W.2d 949, 957 (Tex. Crim. App. 1992) (finding that the
defendant failed to timely assert his speedy trial rights, but also upholding the trial
34
court’s conclusion that the defendant’s speedy trial rights were violated). Similarly,
in Rivera v. State, the court held that a defendant’s motion to dismiss for lack of a
speedy trial did not amount to a request for speedy trial and thus, the defendant’s lack
of demand for a speedy trial weighed heavily against the defendant where the
motion’s primary objective was not to gain a speedy trial but was instead, an attempt
to have the charge against the defendant dismissed. Rivera v. State, 990 S.W.2d 882,
891 (Tex. App.—Austin 1999, pet. ref’d); see also Dokter v. State, 281 S.W.3d 152,
158 (Tex. App.—Texarkana 2009, no pet.) (holding that nearly five year delay
between the defendant’s arrest and trial did not violate his speedy trial right).
Unlike these situations, the delay at issue in this case is between the date of the
indictment and the subsequent arrest as opposed to the time period between the date
of arrest and subsequent trial. The Defendant has demonstrated “no affirmative desire
for delay.” See Zamorano, 84 S.W.3d at 652. He did not file any time consuming
pretrial motions, or ask the court for continuances on these charges, or delay the
proceedings through his own actions. Compare State v. Smith, 06-12-00174-CR,
2013 WL 624126 (Tex. App.—Texarkana Feb. 20, 2013, no. pet. h.) (finding that the
defendant exhibited a desire for the delay between his arrest and trial by filing for
continuances and then remaining inactive for six years, but nevertheless concluding
that the defendant’s speedy trial rights were violated). See Deluna v. State, 05-10-
35
01339-CR, 2012 WL 3642308 (Tex. App.—Dallas Aug. 27, 2012, pet. ref’d) (“By the
time appellant was finally arrested and notified of the indictment and the specific
charges against him, eight years had already passed from the time of the offense. At
that time, it was too late for appellant to obtain a ‘speedy trial.’”). Accordingly, this
factor should weigh in the Defendant’s favor, or at the very least, carry neutral
weight. United States v. Cardona, 302 F.3d 494, 498 (5th Cir. 2002) (finding the
third factor to weigh heavily in the defendant’s favor where there was no evidence
that he knew of the charges against him until his arrest); United States v. Bergfeld,
280 F.3d 486, 489 (5th Cir. 2002) (concluding that the defendant’s lack of knowledge
of the indictment until after it was unsealed meant this factor weighed exclusively in
defendant’s favor).
D. Prejudice
The final prong of the Barker test requires an assessment of prejudice “in the
light of the interests of defendants which the speedy trial right was designed to
protect.” Barker, 407 U.S. at 532. These interests include: (1) prevention of
oppressive pretrial incarceration; (2) minimizing the anxiety and concern of the
accused; and (3) limiting the possibility of impairment to the defense. Id.; Goodrum
v. Quarterman, 547 F.3d 249, 260 (5th Cir. 2008). Stated differently, “unreasonable
36
delay between formal accusation and trial threatens to produce” these recognized
categories of harm. Doggett, 505 U.S. at 654.
Under Texas law, when the delay between indictment and arrest is found to be
presumptively prejudicial, the burden is on the state to rebut or extenuate the
presumption of prejudice. Gonzales v. State, PD-0724-12, 2013 WL 765575 (Tex.
Crim. App. Feb. 27, 2013). In Gonzales, a recent unpublished opinion issued by the
Court of Criminal Appeals, the Court clarified this point, explaining that where the
delay is presumptively prejudicial, Doggett absolves the accused from the
requirement of demonstrating prejudice. Id. In Gonzales, the Court held that the court
of appeals had incorrectly placed the burden on the defendant to demonstrate
prejudice. The Court found that “the six-year delay between the appellant’s
indictment and his arrest ‘presumptively compromise[d] the reliability of a trial in
ways that neither party can prove or, for that matter, identify.’” Id. Therefore, under
Doggett, the court of appeals should have reviewed the record not for proof of
prejudice but rather for evidence of the rebuttal or extenuation of prejudice. Id.
In other words, under Doggett, if “‘the presumption of prejudice, albeit
unspecified, is neither extenuated, as by the defendant's acquiescence, nor
persuasively rebutted,’ then the defendant is entitled to relief.” United States v.
Cardona, 302 F.3d 494, 499 (5th Cir. 2002) (quoting Doggett, 505 U.S. at 658); see
37
State v. Smith, 06-12-00174-CR, 2013 WL 624126 (Tex. App.—Texarkana Feb. 20,
2013, no. pet. h.) (concluding that the trial court’s finding that the Defendant made
a prima facie showing of prejudice shifted the burden to the State to show that the
defendant suffered “no serious prejudice beyond that which ensued from the ordinary
and inevitable delay) (citing State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App.
1999); Puckett v. State, 279 S.W.3d 434, 437 (Tex. App.—Texarkana 2009, no pet.)).
In Smith, the court found the prejudice factor to weigh in the defendant’s favor where
there was a prima facie finding of prejudice under the first Barker factor and the state
failed to present evidence to rebut the presumption of prejudice, even though the
defendant did not present any testimony or evidence to show prejudice. State v.
Smith, 06-12-00174-CR, 2013 WL 624126 (Tex. App.—Texarkana Feb. 20, 2013, no.
pet. h.).
In the present case, the over ten year delay creates a prima facie showing of
prejudice suffered by the Defendant. Therefore he should be entitled to relief because
the state cannot show that the Defendant has not suffered prejudice by this lengthy
delay. Furthermore, even if the state presents some evidence to extenuate the
presumption of prejudice triggered by the lengthy delay in this case, he is
nevertheless entitled to relief. The lengthy delay between the indictment and arrest
38
of the Defendant in this case severely impairs his ability to present a defense and
therefore he has suffered prejudice.1
Impairment of one’s defense is the most difficult form of speedy trial prejudice
to prove because time’s erosion of exculpatory evidence and testimony can rarely be
shown. Barker, 407 U.S. at 532, 92 S. Ct. at 2193. Nevertheless, the possibility that
dimming memories and loss of exculpatory evidence will diminish the accused’s
defense is the most serious interest that the right to speedy trial protects because the
inability of a defendant to adequately prepare his case skews the fairness of the entire
system. Doggett, 505 U.S. at 654, 112 S. Ct at 2692. Affirmative evidence of
particularized prejudice is not essential to every speedy trial claim because excessive
delay presumptively compromises the reliability of a trial in ways that neither party
can prove or even identify. Id. at 655, 112 S. Ct. at 2693. And the presumption of
prejudice grows and intensifies over time. Id. at 656, 112 S. Ct. at 2693. However,
the presumption of prejudice to a defendant’s ability to defend himself can be
“extenuated ... by the defendant’s acquiescence” in the delay. Id. at 658, 112 S. Ct.
2694.
Doggett is likely controlling on this issue here. In Doggett, eight-and-a-half
years elapsed between the defendant’s indictment and his arrest. Id. at 648, 112 S.
1
Because Defendant was not confined and was unaware of the charges against him or of the warrant
that had issued for his arrest, the first two interests are not at issue here.
39
Ct. at 2689. The defendant did not know of the charges against him, left the country
for two years, then returned to the United States and passed unhindered through
customs, settled in Virginia, married, earned a college degree, found a steady job,
lived openly under his name, and stayed within the law. Id. at 649, 112 S. Ct. at
2689. Six years after the defendant returned to the United States, he was arrested.
Id. at 650, 112 S. Ct. at 2690. After his arrest, the defendant raised a speedy trial
claim. Id., 112 S. Ct. at 2690. The trial court found that the government was negligent
in its efforts to apprehend the defendant during the six years after he returned to the
United States, but denied his speedy trial claim because it found that the defendant
had not been prejudiced. Id. at 650, 112 S. Ct. at 2690. A split panel of the court of
appeals affirmed. See United States v. Doggett, 906 F.2d 573, 582 (11th Cir. 1990).
The United States Supreme Court reversed the judgment of the trial court and
of the Court of Appeals and found that the defendant’s speedy trial rights had been
violated by the six-year delay in his arrest after he returned to the United States.
Doggett, 505 U.S. at 658, 112 S. Ct. at 2694. Concerning the prejudice prong of the
Barker analysis, the Doggett Court explained that the defendant was not required to
show prejudice:
When the government’s negligence thus causes delay six times as
long as that generally sufficient to trigger judicial review,... and when
the presumption of prejudice, albeit unspecified, is neither extenuated,
40
as by the defendant’s acquiescence, nor persuasively rebutted, the
defendant is entitled to relief.
Id.
Texas courts have likewise found prejudice where the length of the delay and
the nature of the charge and evidence in the case presented a strong probability that
the defendant’s ability to present a defense was impaired. For example, in Orand, the
Fort Worth Court of Appeals reversed the decision of the trial court and rendered a
judgment of acquittal for the defendant, holding that the twelve-year delay between
the indictment and arrest on a charge of indecency with a child impaired the
defendant’s ability to present a defense. Orand v. State, 254 S.W.3d 560, 570 (Tex.
App.—Fort Worth 2008). In Orand, the defendant was indicted in June of 1994 on
a charge of indecency with a child. Id. at 563. The defendant was 18 years old in
1992 at the time of the offense and was the uncle of the alleged victim. Id. Although
a warrant was issued in 1994 for the defendant’s arrest, he did not learn of the
indictment or warrant for almost twelve years. Id. In February 2006, the defendant
eventually learned of the warrant and immediately turned himself in to authorities.
Id. In August 2006, over fourteen years after the date of the offense, the
defendant—who was by this time thirty-two years old—was tried and convicted of
the charged offense. Id. After his trial, the defendant obtained appellate counsel who
41
timely filed a motion in arrest of judgment and motion to dismiss the indictment,
raising a violation of the defendant’s federal constitutional speedy trial rights. Id.
In concluding that the defendant’s ability to present a defense was impaired,
the court first noted that such a time lapse made it difficult for the defendant to
remember key facts about the day of the incident or identify potential witnesses that
could exonerate him from the charges. Id. at 570. The court explained that the time
lapse in the case deprived the defendant of the ability to effectively cross-examine the
State’s witnesses because “any word uttered or any fact or detail provided by the
State’s witness was simply unimpeachable.” Id. According to the court, “the passage
of time rendered the credibility of the State’s witnesses concrete, exempt from the
testing fire of a cross-examination planned after detailed witness interviews and
extensive defense investigation.” Id. And although the defendant could not point to
any specific affirmative evidence of particularized prejudice, the court concluded that
the extreme and excessive length of the delay in the case presumptively compromised
the reliability of the defendant’s trial in ways that neither party could prove or even
identify, and furthermore, that this presumption of prejudice intensified and grew with
each passing year of delay. Orand, 254 S.W.3d at 570 (citing Doggett, 505 U.S. at
655).
42
Similarly, in Deluna, the Dallas Court of Appeals held in an unpublished
opinion that the eight-year delay between the defendant’s indictment and arrest on a
charge of indecency with a child significantly impaired his ability to present a
defense. Deluna v. State, 05-10-01339-CR, 2012 WL 3642308 (Tex. App.—Dallas
Aug. 27, 2012, pet. ref’d). In Deluna, the State relied entirely on the testimony of the
child and her mother to prove its allegations. Id. The court stated the eight-year time
gap between the defendant’s indictment and arrest undermined the defendant’s ability
to present a defense because he was unable to effectively cross-examine eight-year
old memories and eight-year old details. Id. The court concluded that the “he said,
she said” nature of the evidence rendered cross-examination of the witnesses essential
to the defendant’s defense, and that therefore the extreme delay caused the defendant
to suffer prejudice. Id.
Like in both Deluna and Orand, the Defendant’s case presents a he-said, she-
said situation; whereas, the State’s evidence consists entirely of the testimony of the
complainant and his mother to prove the allegations in the indictment. The Defendant
recognizes that this evidence is generally sufficient to support a conviction for the
alleged crime. Nevertheless, such testimony is entirely dependent on the memories
of the witnesses. The Defendant’s defense is likewise dependent on his being able
to effectively cross-examine the witnesses with respect to their memories and details
43
from over ten years ago. As Texas courts have recognized, the significant delay of
over 120 months between Defendant’s indictment and arrest in this case (more than
6 times the threshold to trigger a Barker analysis) will make it virtually impossible
for the Defendant to conduct effective cross-examination and present a competent,
reliable, and fair defense on his own behalf.
E. Balancing Test
Weighing all the Barker factors together, the court must dismiss the charges
against the Defendant. The over ten year delay between indictment and arrest is over
six times beyond the threshold of a presumptively prejudicial delay and therefore
should be weighted heavily against the State. The State’s negligence in arresting the
Defendant and bringing him to trial, while not a deliberate delay meant to prejudice
the defendant, should also be weighted against the State. The Defendant should not
be taxed for not asserting his speedy trial rights prior to this motion because he did
not know of his arrest until now. In fact, this factor should also be weighted in his
favor, or at least weighted evenly, because the Defendant is now timely asserting his
speedy trial rights, immediately upon learning of the charges against him. Finally, the
state cannot present sufficient evidence to rebut the presumption of prejudice caused
by the delay in this case. Moreover, even if the state does present some evidence to
rebut the presumption of prejudice, the nature of the charges, the state’s testimonial
44
evidence, and the significant length of the delay amount to prejudice the Defendant
by impairing his ability to present a defense to the charges. Therefore this Court must
dismiss the charges against the Defendant with prejudice.
F. Sixth Amendment Prejudice
The “prejudice” prong of Strickland requires this Court to determine whether
trial counsel’s deficient conduct was sufficient to undermine its confidence in the
verdict, that is, whether there is a reasonable probability that, but for the objectively
deficient conduct, the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. at 694; Kyles v. Whitley, 514 U.S. 419, 430 (1995).
Appellant need not show that he would have been acquitted but for these errors and
the prejudice a defendant must show is by less than a preponderance of the evidence:
“a defendant need not show that counsel’s deficient conduct more likely than not
altered the outcome of the trial.” Strickland v. Washington, 466 U.S. at 693. See also
Williams v. Taylor, 529 U.S. 362, 405 (2000)(O’Connor, J., concurring). This
Court’s focus is on the fairness of the trial. Kimmleman v. Morrison, 477 U.S. 365,
380 (1986)(“We have never intimated that the right to counsel is conditioned upon
actual innocence.”).
While the prejudice prong of Strickland can be satisfied on the basis of a single
error, see Ramirez v. State, 65 S.W.3d 156, 158 (Tex. App.– Amarillo, 2001) (failure
45
to object to State’s reference to accused as “drunk Mexican”); Green v. State, 899
S.W.2d 245, 248 (Tex. App.--San Antonio, 1995) (failure to request jury charge on
defensive theory of mistake of fact), a multiplicity of errors on trial counsel’s part is
much more likely to undermine this Court’s confidence in the outcome of this
proceeding. See Greene v. State, 928 S.W.2d at 126 (“[A]lthough each mistake
standing alone is not ineffective assistance of counsel, when all of the mistakes are
taken together this court’s confidence in the result is undermined.”); Brown v. State,
974 S.W.2d 289, 294 (Tex. App. San Antonio 1998, pet. ref’d) (multiplicity of
counsel’s deficient conduct “undermines this court’s confidence in the conviction”).
This case presents in compelling terms “a breakdown in the adversarial process
that our system counts on to produce just results.” Strickland v. Washington, 466
U.S. at 696.
The trial court found that the Supreme Court’s decision in Doggett was as a
matter of law distinguishable from Appellant’s case. And, more importantly, that trial
counsel provided effective assistance even though he did not investigate the law
necessary to present a speedy trial claim nor did he have a single note in his file
pertaining to any investigation of any facts necessary to present a speedy trial claim.
In fact, the trial court found that trial counsel was unaware of any fact to support to
the speedy trial claim as presented at the motion for new trial hearing. Trial counsel
46
did not investigate the factual basis for the claim because he did not know or
understand the significance of the facts necessary to present the legal claim. A
lawyer’s knowledge of the law is necessary to understand what facts are needed to be
discovered to support the claim. The record in this case supports Appellant’s claim
of ineffective assistance of counsel and requires this Court to grant Appellant a new
trial.
Wherefore premises considered, Appellant prays that this Court reversed the
trial court and grant Appellant a new trial.
Prayer
WHEREFORE PREMISES CONSIDERED, Appellant prays that this Court
reverse his conviction and remand the cause to the trial court for a new trial.
Respectfully Submitted,
SCHNEIDER & McKINNEY, P.C.
/s/ Stanley G. Schneider
Stanley G. Schneider
T.B.C. No. 17790500
440 Louisiana St.
Suite 800
Houston, Texas 77002
Tel: (713) 951-9994
Fax: (713) 224-6008
Email: stans3112@aol.com
ATTORNEY FOR APPELLANT
47
Certificate of Service
This is to certify that a true and correct copy of the attached and foregoing
document has been served on the Harris County District Attorney’s Office by
emailing, mailing and/or hand delivering a copy to the District Attorney’s office at
1201 Franklin, Suite 600; Houston, Texas 77002, on this 24th day of July, 2015.
/s/ Stanley G. Schneider
Stanley G. Schneider
Certificate of Compliance
I certify that this document was prepared with Word Perfect X3, and that,
according to that program’s word-count function, the sections covered by TEX. R.
APP. P. 9.4(i)(1) contain 11,676 words.
/s/ Stanley G. Schneider
Stanley G. Schneider
48