ACCEPTED
01-15-00367-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/7/2015 7:22:07 PM
CHRISTOPHER PRINE
No. 01 - 15 - 00367- CR CLERK
IN THE FIRST DISTRICT COURT OF APPEALS FILED IN
AT HOUSTON, TEXAS 1st COURT OF APPEALS
HOUSTON, TEXAS
12/7/2015 7:22:07 PM
=============================================
CHRISTOPHER A. PRINE
Clerk
REYNALDO ZAMORA
Appellant
v.
THE STATE OF TEXAS,
Appellee
=============================================
Appeal from Convictions in Cause Numbers CR 87-0140,
in the 22nd District Court of Hays County, Texas,
Hon. Bruce Boyer, Judge Presiding
=============================================
BRIEF FOR APPELLANT
=============================================
Respectfully submitted,
Law Office of Alexander L. Calhoun
State Bar No.: 00787187
4301 W. William Cannon Dr., Ste. B-150, # 260
Austin, TX 78749
Tele: 512/ 420 - 8850
Fax: 512/ 233- 5946
Cell: 512/731-3159
Email: alcalhoun@earthlink.net
Oral Argument is Not Requested
STATEMENT CONCERNING ORAL ARGUMENT
Counsel believes the present case can be decided upon the briefs and that
oral argument will not significantly assist the Court in its review of the case.
TABLE OF CONTENTS
STATEMENT CONCERNING ORAL ARGUMENT ............................................ I
TABLE OF CONTENTS .......................................................................................... ii
CERTIFICATE OF PARTIES ................................................................................. iii
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT OF THE CASE .................................................................................. 1
ISSUE PRESENTED ................................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF THE ARGUMENT ...................................................................... 12
POINT OF ERROR NUMBER ONE ...................................................................... 13
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
SPEEDY TRIAL IN LIGHT OF THE EXTRAORDINARY PASSAGE OF TIME
AND STATE’S LACK OF DILIGENCE IN LOCATING APPELLANT
DESPITE HIS FREQUENT INCARCERATION.
CONCLUSION AND PRAYER ............................................................................. 23
CERTIFICATE OF SERVICE ................................................................................ 24
CERTIFICATE OF COMPLIANCE ....................................................................... 25
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
ii
CERTIFICATE OF PARTIES
Pursuant to Rule 38.1(a), Tex.R.App. Pro., Appellant presents the following
persons who are parties to, or have an interest in the final judgment in this cause,
so that the Court may determine whether its members are disqualified or should
recuse themselves:
Mr. Reynaldo Zamora, Texas Department of Criminal Justice
TDCJ # 01989227 TDCJ Ellis Unit
Mr. Alexander L. Calhoun, App. Atty 4301 W. William Cannon Dr.,
Ste. B-150, # 260, Austin, TX 78749
Ms. Will Holgate, Trial Atty 5837 B Hiline Road, Austin,
Texas 78734
Mr. Wes Mau, Dist. Atty Hays County Government Center,
712 South Stagecoach Trail,
Ste.2507, San Marcos, TX 78666
Mr. Brian Erskine, & Hays County Government
Raphael Guerrero, Asst. Dist. Attys 712 South Stagecoach Trail, Ste.
2507, San Marcos, TX 78666
Hon. Bruce Boyer Trial Judge Hays County Government Center,
712 South Stagecoach Trail,
San Marcos, TX 78666
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
iii
INDEX OF AUTHORITIES
Constitutions:
Texas Const., Article I, § 10 .................................................................................... 13
U.S. Const., Amend. VI ........................................................................................... 13
U.S. Const., Amend. XIV ........................................................................................ 13
Cases:
Barker v. Wingo, 407 U.S. 514 (1972) ..................................... 12, 13, 16, 18, 19, 20
Cantu v. State, 253 S.W.3d 273 (Tex. Cr. App. 2008) ............................................ 13
Deluna v. State, 05-10-01339-CR (Tex.App. - Dallas 2012) (unpublished) .......... 17
Doggett v. United States, 505 U.S. 647(1992).............................................14, 19, 20
Ervin v. State, 125 S.W.3d 542 (Tex.App. - Hous. [1st Dist.] 2002) , 15, 16
Gonzales v. State, 435 S.W.3d 801 (Tex.Cr.App. 2014) ............................18, 19, 20
Harris v. State, 827 S.W.2d 949, 956 (Tex.Cr.App. 1992) ..................................... 14
Harris v. State, 986 S.W.2d 619 (Tex.App. - Tyler 1997) ...................................... 20
Klopfer v. North Carolina, 386 U.S. 213 (1967) ..................................................... 13
Maddux v. State, 825 S.W.2d 511 (Tex.App.-Hous. [1st Dist.] 1992) ................... 20
Moore v. Arizona, 414 U.S. 25 (1973) .................................................................. 19
McGregor v. State, 394 S.W.3d 90 (Tex.App. - Hous. [1st Dist.] 2012) .........13, 14
Phillips v. State, 650 S.W.2d 396 (Tex.Cr.App. 1983) ...............................15, 20, 21
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
iv
Puckett v. State, 279 S.W.3d 434 (Tex.App. - Texarkana 2009)............................. 20
Rivera v. State, 990 S.W.2d 882 (Tex.App. - Austin 1999) .................................... 14
State v. Kuri, 846 S.W.2d 459 (Tex.App. - Hous. [14th Dist.] 1993) .................... 20
State v. Owens, 778 S.W.2d 135 (Tex.App. — Hous. [1st Dist.] 1989) ............... 21
State v. Smith, 76 S.W.3d 541 (Tex.App.- Hous. [14th Dist.] 2002) ..................... 18
Zamorano v. State, 84 S.W.3d 643 (Tex.Cr.App. 2002) ........................................ 14
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
v
TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:
COMES NOW, before the Court, Appellant, by and through his attorney of
record, and pursuant to Rule 38.1, Tex.R.App.Pro., files this brief on appeal, and
would show the Court as follows:
STATEMENT OF THE CASE
Appellant was charged with the felony offense of Aggravated Kidnaping.
[Clerk’s Record (“C.R.”): 6]. The jury convicted him of the charged offense.
[C.R.: 138 - 140]. Sentencing was held to the trial court, which assessed a
punishment at 60 years confinement in the Texas Department of Criminal Justice
(TDCJ). [C.R.:139].
Pursuant to a motion for extension due to an incomplete record, this brief
will be timely if filed by December 7, 2015.
ISSUE PRESENTED
Point of Error Number One
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
SPEEDY TRIAL IN LIGHT OF THE EXTRAORDINARY PASSAGE OF
TIME AND STATE’S LACK OF DILIGENCE IN LOCATING APPELLANT
DESPITE HIS FREQUENT INCARCERATION.
STATEMENT OF FACTS
The present case arises from the denial of Appellant’s motion for Speedy
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
1
Trial due to the delay in prosecution of his 1987 charge for Aggravated
Kidnaping in Hays County, Texas. Appellant did not appear for trial in August
1987 after which the case lay dormant until 2013 when Appellant was finally
arrested on a warrant issued on the case by Hays County.
A. The Speedy Trial Hearing
Following his apprehension in 2013, Appellant filed a Motion to Dismiss
for Lack of a Speedy Trial. [C.R.: 19 - 25]. Appellant testified as the sole
witness at the hearing on his motion. Appellant’s date of birth was March 28,
1954. [2 R.R.: 8]. In 1987, after the charges arose, he had been in a car accident
resulting in a 52-day coma. [2 R.R.: 9 - 10; 3 R.R.: 37]. The resulting brain
injuries from the coma affected his memory of events. [2 R.R.: 9 - 10; 3 R.R.:
38]. He had not shown up for trial in August 1987 because he had now known
about the trial setting, a residual effect of his injuries. [2 R.R.: 10].
Appellant was subsequently arrested in Maverick County in 1992 for
Conspiracy to Possess Marijuana. [2 R.R.: 11, 12, 30 - 31; 3 R.R.: 18 - 19]. He
was identified in the booking records under both his brother’s name, “Enrique
Jimenez Mata,” a Mexican national, as well as his own name “Reynaldo Ybarra
Zamora.” [3 R.R.: 47; SX: 13]. When Appellant was arrested, the authorities
found in the car, 3 false identification documents which belonged to his brother.
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
2
[2 R.R.: 31; 3 R.R.: 24; 3 R.R.: 20, 44 - 45]. He was released from jail because
the authorities suspected him of being his brother, who was an illegal alien. [2
R.R.: 11, 12, 30 - 31; 3 R.R.: 46]. The sheriff’s department released him to the
border patrol, which drove him to the international bridge and instructed him to
return to Mexico. [2 R.R.: 11; 3 R.R.: 45].
Appellant was again arrested by the Austin Police Department for Indecent
Exposure in 2001. [3 R.R.: 33, 51]. Documents submitted by the State, a
police department “Press Release” of the arrest, State’s Exhibit 15, and an APD
offense report, State’s Exhibit 31 - Exhibit F, reflect Appellant was arrested under
the name of “Reynaldo Zamora” with a date of birth of “3/28/1958.” [3 R.R.: SX
15, 31 (Attachment F)]. He was convicted and placed on probation. [8 R.R.: SX
31 (Attachment G)]. This probation was eventually revoked in October 2005
and he was sentenced to 30 days in the county jail. [8 R.R.: SX 31 (Attachment
K)].
Also in 2001, Appellant was arrested and incarcerated in Franklin County,
Kentucky. [2 R.R.: 13 - 14, 22]. The booking sheet listed among his charges a
fugitive warrant. [2 R.R.: 14; SX 14]. He plead guilty to the local offense served
a 5 ½ month sentence. [2 R.R.: 15]. Despite the out-of-state detainer, the local
authorities released him from custody after Hays County did not seek extradition.
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
3
[2 R.R.: 15; 3 R.R.: 29 - 30, 47 - 48].
Appellant then returned to Texas from Kentucky. [3 R.R.: 49]. While
living in Austin, Texas, he checked with the Travis County Sheriff’s Office for
outstanding warrants and learned that there were no warrants from Hays County.
[2 R.R.: 16 - 17; 3 R.R.: 50 - 51].
In 2002, Appellant was again arrested in Maverick County for the 1992
charge. [2 R.R.: 17 - 18]. He was found guilty after a trial and sentenced to 12
years imprisonment. [2 R.R.: 18 - 19; DX 1 & 2]. He was paroled from prison
in 2005. Prior to his release, the Board of Pardons and Paroles checked for
outstanding detainers and he “came up clean.” [2 R.R.: 20].
After being released from prison, Appellant renewed his driver’s licence
without incident. He was aware that the Department of Public Safety routinely
ran warrant checks when renewing driver’s licences. [2 R.R.: 20 - 21; 3 R.R.:
50].
Appellant was again arrested in Austin in 2007. [3 R.R.: 34]. State’s
Exhibit 28, an Austin Police Department Press Release reflects he was arrested
under the name “Reynaldo Zamora” with a date of birth of “3/28/1954.” [3 R.R.:
32; 8 R.R.: SX 28]. An offense report from the Texas Attorney General’s
Fugitive Apprehension Unit noted the existence of a 1986 Hays County
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
4
Aggravated Kidnaping case, but misstated that it resulted in a conviction and
sentence. [8 R.R.: 31 (Attachment I)].
Appellant’s parole on the Maverick County conviction was revoked in 2008
and he was again incarcerated in the state prison system. [3 R.R.: 33]. He was
paroled again in 2010. The Board of Pardons and Paroles again reviewed him for
detainers, found none, and released him. [2 R.R.: 20].
On September 7, 2013 Appellant was finally arrested by Hays County for
the 1987 charges. He was appointed an attorney on October 23 and the two met in
jail a week later, on October 30, 2013. He was subsequently returned to TDCJ
for four months, after which he was again returned to Hays County to face
charges. [2 R.R.: 27].
The State submitted several documents in order to demonstrate that
Appellant has utilized several aliases and dates of birth over the years. State’s
Exhibit 1, a 1972 judgment of conviction in Guadalupe County, and State’s
Exhibit 2, a related 10-print card reflect that Appellant’s first name was spelled as
“Ray.” [3 R.R.: 10, 11: 8 R.R.: SX 1 & 2].
State’s Exhibit 3, a Guadalupe County magistration form, dating to 1978,
and State’s Exhibit 4, a 1978 Guadalupe County judgement of conviction also
listed his name as “Raynaldo Ybarra Zamora.” [8 R.R.: SX 3]. State’s Exhibit
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
5
6, a 10-print card from TDCJ identified him as “Reynaldo Zamora” with an aka
as “Ray” but stated his date of birth as “3-25-54.” [8 R.R.: SX 6].
State’s Exhibit 9, his Hays County waiver of arraignment in the present
case listed him as “Reynaldo Zamora.” [8 R.R.: SX 9].
State’s Exhibit 11, photos purportedly of Appellant by the Maverick County
Sheriff’s Department dating to 1992 listed the individual as “Enrique Mata
Jimenez” with a date of birth of “12-21-1958.” An accompanying indigence
form for the Maverick County case recited Enrique Mata Jimenez as the defendant
and was purportedly signed by Mata. [8 R.R.: SX 12]. State’s Exhibit 13, a
Maverick County jail print out, listed Enrique Jiminez Mata” as an escapee.
Notably the document also listed the “Reynaldo Ybarra Zamora” as an alias.
Three identification cards seized by Maverick County during Appellant’s
1992 arrest, a Mexican driver’s licence, a Texas driver’s licence, and a State of
Texas certificate of birth, bearing the name “Reynaldo Ybarra Zamora” with a
date of birth of 3/28/54" were admitted.1 [3 R.R.: 24; 8 R.R.: SX 16].
State’s Exhibit 14, a “News Release” from Franklin County, Kentucky law
enforcement listed Appellant as “Ray Ybarra Zamora.” It also noted that he was
a “fugitive” for which no bond was authorized. [8 R.R.: SX 14].
1
The Mexican ID spells Appellant’s middle name as “Ibarra” but is otherwise consistent
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
6
State’s Exhibit 18, booking photos from Appellant’s re-arrest in Maverick
County identified him as “Reynaldo Ybarra Zamora” with a date of birth of
“3/28/1954.” [3 R.R.: 26; 8 R.R.: SX 18]. The judgment of conviction for his
trial identified him under the name of “Reynaldo Ybarra Zamora” with an aka as
“Enrique Jimenez Mata.” [3 R.R. 27; 8 R.R.: SX 19]. The accompanying
Maverick County 10-print card related to the judgment, however, spelled his name
as “Raymundo Ybarra Zamora” with a date of birth of “3/28/1954.” [3 R.R. 27;
8 R.R.: SX 20]. A Franklin County law enforcement “News Release” dating to
a June 2003 arrest, State’s Exhibit 23, identified Appellant as “Ray Ybarra
Zamora.” [3 R.R.: 28 - 29; 8 R.R.: 23].
State’s Exhibit 25, a State of Texas Pardons and Parole notice of offender
release, dated October 5, 2005 identified Appellant, “Reynaldo Ybarra Zamora”
with a date of birth of “3/28/54" as an impending parolee. [3 R.R.: 31; 8 R.R.:
SX 25].
State’s Exhibit 30, a second State of Texas Pardons and Parole notice of
offender release, dated May 25, 2005 again identified Appellant as “Reynaldo
Ybarra Zamora” with a date of birth of “3/28/54."
State’s Exhibit 31, a written response with documentary attachments, to
with the Texas documents.
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
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Appellant’s Speedy Trial motion, was also admitted. [3 R.R.: 8 - 9; 8 R.R.: 31].
Appellant contended that his defense was premised upon an alternative
suspect to the kidnaping – his brother – supported by witnesses who could have
provided alibis of his whereabouts in the time period that the offense had
occurred. He had a younger half-brother, “Enrique Mata Jiminez” – they shared
the same father, but different mothers – who lived in the Piedras Negras, Mexico.
[2 R.R.: 12 - 13; 2 R.R.: 28 - 29]. The brothers resembled one another. [2 R.R.:
25]. Jiminez, a Mexican national, and would use Appellant’s ID while in the
United States. [2 R.R.: 28 - 29]. Jiminez operated Appellant’s septic business
when Appellant worked out-of-state and used his driver’s licence to drive the
dump truck which used in the business. [2 R.R.: 25 - 26]. Appellant believed
that his brother had committed the offenses using Appellant’s identity while
Appellant was working out-of-state. [2 R.R.: 26]. Appellant denied owning a
white Corvette, the suspect vehicle in the case, but his brother had owned such a
vehicle. [3 R.R.: 40 - 41]. Appellant had lost contact with his brother over the
years; he not been able to locate him for some period of time. [2 R.R.: 12 - 13].
His inquiries had proven fruitless because no one in the family knew of his
brother’s whereabouts. [2 R.R.: 13].
There were several other witnesses with whom he had worked who could
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
8
have testified to his being out-of-state during the relevant time period but who
were no longer available as witnesses. In 1986 - 1987, Appellant had been
working for a long time employer, Dr. Darryl Havert, through whom he met
another individual, Colonel Sanders. [2 R.R.: 21, 23; 3 R.R.: 37, 40]. He
believed that he had been working for Sanders out-of-state at the time of the
offense in late 1986. [2 R.R.: 22]. Appellant learned that Sanders had died in
2007. [2 R.R.: 21 - 22; 3 R.R.: 35 - 36]. Another witness, Dr. Havert, had
died from a stroke in 2007. [2 R.R.: 23 - 24; 3 R.R.: 36]. Havert would have
been able to testify about Appellant’s whereabouts during the period which the
charges arose. Havert owned two small airplanes and provided transport for
Appellant to and from Colorado as well as Kentucky, where Havert owned a ranch
on which Appellant worked. [2 R.R.: 23]. There had also been a private pilot,
employed by Havert to fly the planes between San Antonio and Kentucky, who
could have testified on Appellant’s behalf, but whose name Appellant had
forgotten over time. [2 R.R.: 24 - 25].
The trial court took the matter under advisement, and ultimately denied the
motion, noting on the docket sheet that the delay was “attributable to Δ’s own
actions, lack of previous request for Speedy Trial; lack of prejudice to Δ under all
attendant circumstances.” [C.R.: 155].
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
9
On the morning of trial, just before voir dire, the State advised the trial
court of additional evidence not disclosed during the pre-trial Speedy Trial
hearing. The prosecutor made a proffer that he had learned from the district
attorney’s office officer manager that she had received a fax from the parole
department in 2010, inquiring into the status of the pending case. [4 R.R.: 17 -
18]. The office manager reported the fax to the chief of the family justice
division – not the same prosecutor as the one making the proffer. The DA’s
Office, which was attempting to locate and re-create a case file, did not respond
to TDCJ and Appellant was released from prison. The DA’s Office did not re-
create a file until Appellant was arrested in 2013 on an “active warrant.” [4 R.R.:
18 - 19].
Appellant re-urged the motion to dismiss, which the trial court denied. [4
R.R.: 22 - 25].
B. Trial on the Merits
The evidence at trial showed nine-year-old G.G. and her friend, D.S. were
abducted on December 20, 1986 in Buda, Hays County, Texas. While walking to
a neighborhood friend’s home, the suspect drove up in a white Corvette, identified
himself as the friend’s uncle, and asked where she lived. [5 R.R.: 108 - 109; 6
R.R.: 22 - 23, 28]. He asked for help locating the house and when the girls
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
10
expressed hesitancy in getting into his car, he identified himself as “Reynaldo
Zamora.” [6 R.R.: 28 - 31, 74, 76 - 77, 80 - 81]. The girls got into the car and
tried to find the house. [6 R.R.: 32]. While driving through the neighborhood, the
suspect announced he needed gas and drove the girls to a gas station along the
highway, where he bought D.S. a hamburger. [5 R.R.: 109, 111; 6 R.R.: 34 - 37,
38]. He drove them back to their neighborhood. D.S. exited the car, but as G.G.
started to exit, the suspect pulled her back in and drove off. [5 R.R.: 109; 6 R.R.:
44 - 45]. He ultimately drove G.G. to a spot along the side of the highway,
parked and fondled her breast and crotch, then drove her back. [6 R.R.: 49 - 51].
He dropped G.G. off at the school bus stop and she ran home and related the
incident. [6 R.R.: 52 - 57].
Appellant was identified as a suspect during the investigation. Members of
the Hays County Sheriff’s Office went to Appellant’s house with an old
unexecuted warrant, and while searching the home found Appellant hiding in the
shower. [5 R.R.: 170 - 174; 186; 8 R.R.: SX 12 (Michael Dees Deposition)].
The officers assigned to the investigation took D.S. and G.G. on a drive by
of Appellant’s house following Appellant’s arrest, at which time both girls
identified the white Corvette parked in the drive way as the suspect’s vehicle. [5
R.R.: 177 - 179; 6 R.R.: 58].
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
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The girls could not initially identify a suspect. [5 R.R.: 190]. After
Appellant’s arrest, they were again shown a lineup and each selected his
photograph. [5 R.R.: 143, 182 - 183, 193; 6 R.R.: 59 - 60; SX 12 (Michael
Dees Deposition)].
Records of Appellant’s credit card matched records of a purchase made at
the gas station convenience store where the suspect allegedly made a purchase.
[5 R.R.: 77 - 81, 194 - 196; SX 9].
After Appellant was arrested, he posted bond and was released from jail. [5
R.R.: 66 - 67; 6 R.R.: 95 - 97]. He did not appear for the August 1987 trial date.
[5 R.R.: 71 - 72, 74].
The parties stipulated that over passage of time, the State had lost numerous
items of evidence, including: photographs, hair and fingerprint samples, photos of
the vehicle as well as the vehicle itself, recorded witness statements, the gas ticket
and photos of Appellant. [5 R.R.: 149 - 150; SX 13]. They also stipulated that
hair samples taken from the girls and subjected to microscopic analysis of hair
samples taken from the corvette did not have matching characteristics. [5 R.R.:
151].
The jury convicted Appellant of Aggravated Kidnaping. [7 R.R.: 56]. The
punishment phase was held to the trial court. The court rejected Appellant’s
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
12
request for a affirmative finding on the issue of “safe release” and assessed a
sentence of 60 years imprisonment. [7 R.R.: 93 - 95].
SUMMARY OF THE ARGUMENT
1. The trial court erred in denying Appellant’s motion to dismiss the
case due to the violation of his right to Speedy Trial by incorrectly weighing the
relevant factors under Barker v. Wingo, 407 U.S. 514 (1972). The testimony and
documentary evidence developed in the Speedy Trial hearing reflected that while
Appellant had not appeared for the 1987 trial date, and not clearly asserted his
right to a Speedy Trial at that time, in the intervening years, he was frequently
incarcerated in Texas, either in TDCJ, or in county jails under his own name and
date or birth, or was held out-of-state under a Texas detainer, but not extradited by
the State. Further, evidence was presented which demonstrated the prosecution
ignored a direct inquiry by parole officials regarding Appellant’s fugitive status.
The State’s lack of efforts to locate and bring Appellant to trial, given the passage
of years, significantly outweighs Appellant’s lack of assertion of his right.
Additionally, the trial court failed to presume prejudice given the number of years
in which the State did not seek to apprehend Appellant. In the alterative, the trial
court erroneously concluded Appellant had not shown prejudice despite testimony
of missing and unavailable witnesses. The State’s lack of diligence, coupled with
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
13
the demonstrated prejudice outweigh the sole Barker factor in favor of the State.
GROUND FOR REVIEW
Ground for Review Number One
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
SPEEDY TRIAL IN LIGHT OF THE EXTRAORDINARY PASSAGE OF
TIME AND STATE’S LACK OF DILIGENCE IN LOCATING APPELLANT
DESPITE HIS FREQUENT INCARCERATION.
The Sixth Amendment and Fourteenth Amendments to the United States
Constitution and Article I, § 10 of the Texas Constitution, guarantee an accused
the right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 515 (1972); Klopfer
v. North Carolina, 386 U.S. 213 (1967); Cantu v. State, 253 S.W.3d 273, 280 &
n.16 (Tex. Cr. App. 2008); and, McGregor v. State, 394 S.W.3d 90 (Tex.App. -
Hous. [1st Dist.] 2012). A court analyzes speedy trial claims on an ad hoc basis
by weighing and then balancing four factors: (1) length of the delay, (2) reason for
the delay, (3) assertion of the right, and (4) prejudice to the accused. Barker, 407
U.S. at 530. The inquiry is triggered when the delay between arrest or formal
accusation and trial is unreasonable enough to be "presumptively prejudicial."
Cantu, 253 S.W.3d at 281. The burdens with regard to the factors differ between
the parties. While the State bears the burden of justifying the length of delay,
the defendant bears the burden of proof that he asserted the right to a Speedy
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
14
Trial, and an initial burden of making a prima facie showing of potential
prejudice. Cantu, 253 S.W.3d at 280; McGregor, 394 S.W.3d at 112; and,
Rivera v. State, 990 S.W.2d 882, 892 (Tex.App. - Austin 1999). While no one
particular factor is talismanic, Barker, 407 U.S. at 533, the Court of Criminal
Appeals has held that the defendant's burden "'varies inversely' with the State's
degree of culpability for the delay"; thus, "the greater the State's bad faith or
official negligence and the longer its actions delay a trial, the less a defendant
must show actual prejudice or prove diligence in asserting his right to a speedy
trial." Cantu, 253 S.W.3d at 280 - 281; and, McGregor, 394 S.W.3d at 112 (citing
Cantu).
A. Length of Delay
There is no set time period to trigger a Speedy Trial analysis, but Texas
courts have applied as a rule of thumb that an eight-month delay is generally
sufficient to trigger the inquiry. Zamorano v. State, 84 S.W.3d 643, 649 n.26
(Tex.Cr.App. 2002); and, Ervin v. State, 125 S.W.3d 542, 546 (Tex.App. - Hous.
[1st Dist.] 2002) (citing Harris v. State, 827 S.W.2d 949, 956 (Tex.Cr.App.
1992)). Compare, Doggett v. United States, 505 U.S. 647, 652 n. 1(1992)
(observing that majority of courts hold delay of one year is sufficient to trigger
inquiry). There was evidence that Appellant had absconded from Hays County in
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
15
late 1987, subsequently arrested in Maverick County, Texas in 1992, and then
either released from custody or escaped. It may be debatable whether this time
should count toward the length of the delay, but in essence this period of time is
largely irrelevant to the determination of whether the length of the delay was
presumptively unreasonable.
What is indisputable is that as of 2002, Appellant was in the custody of the
State of Texas, incarcerated in Maverick County, Texas, tried and sentenced to 12
years incarceration in the Texas Department of Criminal Justice.2 [8 R.R.: SX 18,
19, 20]. He was sentenced under his own name, the same one as he was charged
under in Hays County – Reynaldo Ybarra Zamora – and date of birth – 3/28/1954.
[8 R.R.: 19, 20]. The evidence was undisputed that Hays County did not seek to
arrest him until September 2013 - 11 years later. [2 R.R.: 27]. This delay, dating
from 2002 is presumptively unreasonable and sufficient to initiate a Speedy Trial
inquiry.
B. Reason for Delay
Because the State is obligated to expeditiously seek to try a defendant, it
2
The record established that Appellant was in the constructive custody of the Texas two years
earlier than this, when he was incarcerated in Franklin County, Kentucky. The State submitted
documentary evidence from the Franklin County, Kentucky Sheriff’ that Appellant was in the custody of
the Franklin County as of May 11, 2000 for charges, including a fugitive warrant for which no bond was
authorized. [8 R.R.: SX 14]. Appellant testified he was ultimately released from custody when the
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
16
bears the burden of justifying a presumptively unreasonable delay. Ervin, 125
S.W.3d at 546 (citing Phillips v. State, 650 S.W.2d 396, 400 (Tex.Cr.App. 1983).
The Court assesses the reason for the delay against the State depending upon the
degree of culpability in failing to provide a Speedy Trial. For neutral reasons,
such as a missing State witnesses, the delay is not counted against the State.
Barker, 407 U.S. at 531. In contrast, a deliberate prolongation weighs heavily
against the State, while negligence is also counted against the State, albeit not as
heavily as deliberate misconduct. Barker, 407 U.S. at 531; and, Ervin, 125
S.W.3d at 546.
The prosecution as much as conceded negligence on the issue with the trial
court. [6 R.R.:19 - 20]. Independent of this, the undisputed facts demonstrated the
State, at a minimum, failed to exercise diligence in seeking to prosecute Appellant
until 2013. Even conceding the time period in which Appellant was
unapprehended by the authorities, it is nonetheless clear that from 2001, he was
under the direct or constructive custody of the State. In early 2001, he was in
Kentucky custody, but held on an out-of-state detainer; the prosecution offered no
explanation for its failure to seek extradition. From 2002 onward, Appellant was
consistently in and out of TDCJ, under his own name, and correct date of birth.
State of Texas
REYNALDO declined
ZAMORA to seek his extradition. [2 R.R.: 15].
V. STATE OF TEXAS: NO. 01- 15 -00367-CR
17
And he was repeatedly paroled under this name and date of birth. Again, the
State offered no explanation for its failure to obtain his presence for trial. In
2007, he was arrested in Austin under his own name and date of birth. Again,
the State offered no explanation for its failure to obtain his presence for trial in
Hays County. While contending Appellant was using an alias for this time period,
the State’s own evidence – documents generated by law enforcement – reflects
that that law enforcement was aware of variations in Appellant’s name, as well as
the possible use of aliases. Yet again, the State offered no explanation of the
warrants for Appellant’s arrest and whether – or why – they did not include
known aliases and spelling variations of his name.
These instances of prosecutorial negligence weigh against the State
because the State has the affirmative obligation to make reasonable efforts to
bring a defendant to trial, even if he is a fugitive. Compare, Deluna v. State, 05-
10-01339-CR (Tex.App. - Dallas 2012) (unpublished) (noting that during time
period defendant was unapprehended, he had been incarcerated in jail and subject
to being located through reasonable diligence).
Also significant, the prosecutor’s proffer made on the morning of trial
reflected at least one occasion in which the State simply disregarded the
opportunity to secure Appellant’s presence for trial. Parole officials contacted the
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
18
Hays County District Attorney’s Office in 2010 inquiring on a detainer, but the
office did not respond, resulting in Appellant’s release. The context of the
revelation – a proffer from information conveyed by another employee –
precluded further inquiry into this, but supports an inference that the Parole
Department might have contacted the office on earlier occasions prior to
Appellant’s release from prison. The State’s inaction in light of the contact by the
Parole Department is not mere negligence - it strides into deliberate misconduct,
and should be treated more heavily in the weighing process than the States’ lack
of diligence.
C. Assertion of the Right to Speedy Trial
There is no evidence in the reconstructed court file that Appellant filed a
request for a Speedy Trial in 1987. He filed his request to dismiss for lack of a
Speedy Trial on August 4, 2014. [C.R.: 19 - 25]. The lack of an initial demand for a
Speedy Trial is a factor which counts against a defendant. Barker, 407 U.S. at 531;
and, Gonzales v. State, 435 S.W.3d 801, 810 - 811 (Tex.Cr.App. 2014). It is not
determinative, however, as the Supreme Court has noted that the State bears the
ultimate burden of ensuring that the right to due process has been accorded. Id.,
407 U.S. at 527. Accordingly, “[a] defendant has no duty to bring himself to
trial.” Ibid. See also, State v. Smith, 76 S.W.3d 541, 549 (Tex.App.- Hous. [14th
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
19
Dist.] 2002) (“A defendant has no duty to bring himself to trial, and the primary
burden rests upon the courts and the prosecution to insure that cases are brought to
trial.”). While the absence of proof in the reconstructed file weighs against
Appellant, it must be measured in light of both the State’s lack of any efforts to
secure Appellant’s presence during the years he was incarcerated in TDCJ, coupled
with the State’s failure to seek Appellant’s extradition from Kentucky, as well as
the significant delay from the period where it is indisputable that Appellant was in
State custody and subject to being brought to trial in Hays County.
D. Prejudice.
As a general matter, the defendant has the burden of making a prima facie
showing of prejudice. Barker, supra. Under circumstances, where the delay is
long enough and attributable to the State, it is appropriate to presume prejudice
without any specific prima facie showing by the defendant. Doggett, 505 U.S. at
657; and, Gonzales, 435 S.W.3d at 812 (“In certain instances, the length of delay
may be so excessive that it presumptively compromises the reliability of a trial in
ways that neither party can prove or identify. . . . In such instances, the defendant is
absolved from the requirement to demonstrate prejudice.”) (internal quotations
omitted). See also, Moore v. Arizona, 414 U.S. 25, 26 (1973) (“Barker v. Wingo
expressly rejected the notion that an affirmative demonstration of prejudice was
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
20
necessary to prove a denial of the constitutional right to a speedy trial.”).
Presumptive prejudice occurs in the context of the length of the delay coupled with
the State’s negligence. In Doggett, the Court applied a presumption of prejudice
where the between indictment and apprehension lasted 8 ½ years, “ six times as
long as that generally sufficient to trigger judicial review . . .” Id., 5905 U.S. at
658.
In Appellant’s case, he was in constructive custody in Kentucky as of 2001,
but the State did not seek his extradition at that time. He was in the custody of the
State of Texas as of 2002, but the prosecution did not seek a bench warrant at that
time, or for any of the periods in which he was in a Texas prison. In fact, as
divulged by the prosecutor on the morning of trial, the Texas Board of Pardons and
Paroles actually contacted the office in 2010 to ascertain the Appellant’s status in
Hays County, but the District Attorney’s Office failed to take any action. He was
not arrested on a warrant from Hays County until 2013. This is well beyond the
time that the Supreme Court found sufficient to presume prejudice in Doggett,
supra.
In the alternative, even if the presumption of prejudice does not apply in this
particular case, Appellant established a sufficient prima facie showing of prejudice
to which the State failed to rebut. A defendant need not show actual prejudice,
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
21
however. Phillips, 650 S.W.2d at 401; Puckett v. State, 279 S.W.3d 434, 437
(Tex.App. - Texarkana 2009); Rivera, 990 S.W.2d at 892; Harris v. State, 986
S.W.2d 619, 625 (Tex.App. - Tyler 1997); and, State v. Kuri, 846 S.W.2d 459, 467
(Tex.App. - Hous. [14th Dist.] 1993). This follows from the difficulty, as a result of
excessive delay, for either party to prove or identify the way in which the reliability
of trial has been compromised by the passage of time. See Doggett, 505 U.S. at
655; and, Gonzales, 435 S.W.3d at 812. Where a witness dies or disappears
during a delay, the prejudice is obvious. Barker, 407 U.S. at 532. This Court has
explained that in the case of a missing witness, “[t]o show prejudice, a defendant
need only show that the prospective witness was material to the case, not that the
witness would have testified favorably to the defense.” Maddux v. State, 825
S.W.2d 511, 517 (Tex.App.-Hous. [1st Dist.] 1992, rev’d on other grounds, 862
S.W.2d 590 (Tex.Cr.App. 1993)) (citing Phillips, 650 S.W.2d at 402; and, State v.
Owens, 778 S.W.2d 135, 138 (Tex.App. — Hous. [1st Dist.] 1989)).
In the present case, Appellant made a prima facia showing of prejudice. He
testified about a plausible alternative suspect whose whereabouts were unknown by
the time of trial. He also advised of three potential material witnesses who could
possibly have provided alibis for the time period in question. Two were dead, and
one, the pilot employed by Havert, was unknown and plainly unlocatable due to the
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
22
passage of time. The State addressed none of this evidence at the hearing.
E. The balance of the Speedy Trial Factors weighs in favor of reversing
the trial court’s order denying the motion to dismiss.
This court balances the relevant factors of a Speedy Trial claim on a de novo
basis. Gonzales, 435 S.W.3d at 809; and, McGregor, 394 S.W.3d at 112. The
trial court made not specific fact-findings, but concluded Appellant had failed to
make a showing on three Barker factors – invocation of the right, the reason for the
delay, and prejudice. The court erred on two of these factors – the reason for the
delay and prejudice – and so it necessarily applied the Barker test incorrectly.
While there is no evidence Appellant timely demanded a Speedy Trial, a factor
which weighs against Appellant, the State made no efforts to apprehend him in the
years following his bond forfeiture, even though he was incarcerated under his own
name and date of birth, or under known aliases, since 2001. Indeed, the
unrebutted evidence establishes that the State failed to seek his extradition from
Kentucky in 2001 despite the out-of-state detainer, and ignored the Parole Board’s
inquires in 2010. This prolonged negligence coupled with affirmative misfeasance,
should weigh heavily when measured against Appellant’s own failure to assert his
right to a Speedy Trial.
In its cursory conclusion that Appellant had proven no prejudice, the Court
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
23
failed to address Doggett’s injunction that a sufficiently prolonged and unjustified
delay obviates the need to demonstrate prejudice. In Appellant’s case, assuming a
date of 2001, the State’s unjustifiable delay in seeking prosecution was 12 years.
This was more than sufficient to justify presumptive prejudice under Doggett.
Alternatively, the trial court erred in concluding Appellant had not proven
prejudice. Appellant presented sufficient and unrebutted prima facie proof of
prejudice through missing and deceased witnesses. The witnesses – his brother,
Havert, Sanders, and the pilot were material insofar as they related to an alternative
suspect coupled with Appellant’s absence from the state, and were unavailable due
to the passage of time. Even in the absence of presumed prejudice, Appellant
made a sufficient showing of prejudice to weigh the balance of the Barker factors in
favor of Appellant.
This Court should conclude the trial court erred in its denial of Appellant’s
motion to dismiss for violation of his Speedy Trial right.
Conclusion and Prayer
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
this Honorable Court reverse Appellant’s conviction, remand the case to the trial
court with instructions to dismiss the case for violation of the right to a Speedy
Trial, any other such relief to which Appellant may be entitled.
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
24
Respectfully submitted,
Law Office of Alexander L. Calhoun
4301 W. William Cannon Dr., B-150, # 260
Austin, TX 78749
Tele: 512/ 420- 8850
Fax: 512/ 233-5946
Cell: 512/731-3159
Email: alcalhoun@earthlink.net
BY:__/s/ Alexander L. Calhoun ____
Alexander L. Calhoun
State Bar No.: 00787187
Attorney for Appellant, Reynaldo Zamora
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-
CR
CERTIFICATE OF SERVICE
I hereby certify that on December 8, 2015, a copy of the above and
foregoing Appellant’s Brief has been served upon the Hays County District
Attorney's Office by United States Mail at the following address:
Hays County District Attorney
Hays County Government Center
712 South Stagecoach Trail, Ste. 2507
San Marcos, TX 78666.
/s/ Alexander L. Calhoun
Alexander L. Calhoun
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
26
CERTIFICATE OF COMPLIANCE
Pursuant to Tex.R.App.Pro. Rule 9.4, I hereby certify that the foregoing
appellate brief has been prepared in Times New Roman typeface in 14 point type
and consists of 6036 words.
/s/ Alexander L. Calhoun
Alexander L. Calhoun
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
27