           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                          NO. PD-1485-10



                                    THE STATE OF TEXAS

                                                   v.

                       CAROLYN SUE KRIZAN-WILSON, Appellee

          ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
               FROM THE FOURTEENTH COURT OF APPEALS
                           HARRIS COUNTY

                J OHNSON, J., delivered the opinion for a unanimous Court.

                                           OPINION

        On September 22, 1985, appellee’s husband, Roy McCaleb, was murdered in his home.

Appellee was indicted for the murder on July 14, 2008, nearly 23 years later. Appellee filed a

motion to dismiss the indictment, alleging that the pre-indictment delay violated, inter alia, her rights

to due process, due course of law, and a fair trial. After holding an evidentiary hearing, the trial

court granted the motion, made factual findings and conclusions of law favorable to appellee’s

motion, and ordered the indictment dismissed. On appeal, the Fourteenth Court of Appeals held that

the trial court erred in dismissing the indictment and reversed and remanded the cause to the trial
                                                                                                    2

court for further proceedings.1

       This Court granted the first issue presented in appellee’s petition for discretionary review,

in which appellee argues that: “The trial court found that the 23-year pre-indictment delay

substantially prejudiced petitioner and was grounded in an impermissible purpose. The Court of

Appeals erred in reversing that ruling because: (1) a reasonable judge could have found that the delay

was grounded in an impermissible purpose; and (2) the Fifth Amendment Due Process Clause does

not require petitioner to demonstrate an impermissible purpose—a nearly impossible task—but

instead shifts the burden to the government (upon a showing of substantial prejudice) to demonstrate

a reasonable explanation for the delay.” After review, we affirm the court of appeals and remand

the cause to the trial court for further proceedings.

                                          I. Evidentiary Hearing

       The record of appellee’s hearing on her motion to dismiss sets out the relevant facts about

the murder. On the night of September 22, 1985, appellee was at home with her husband, her

youngest son Robert, and Robert’s wife. The house had three bedrooms: one in which appellee

stayed, one in which the victim stayed, and one in which Robert stayed. Appellee reported to the

police that an intruder had entered the house, sexually assaulted her, and shot her husband. Robert

was in the bedroom across the hall when the incident allegedly took place. Robert’s wife was still

in the house when an intruder allegedly broke into the house, but had left by the time the murder

occurred. Appellee also reported to the police that, approximately ten days prior to the murder, a

man broke into her car and sexually assaulted her in a nearby park. Appellee believed that the

intruder was the same person who had previously assaulted her.


       1
           State v. Krizan-Wilson, 321 S.W .3d 619 (Tex. App.—Houston [14th Dist.] 2010).
                                                                                                    3

       The Houston police responded to the scene and interviewed appellee and her son at length.

Appellee gave the police a written statement, and her attorney brought a prepared statement in to the

police department several days later. The police conducted a crime-scene investigation and collected

evidence, but they did not find any signs of a forced entry or footprints around the perimeter of the

house. The police began to search for the alleged assaulter in the vicinity of the crime scene based

upon the description that appellee provided. When officers could not find anything that would

substantiate a rapist in the area, they turned their attention towards appellee. After completing an

investigation, the police investigators and district attorney’s office were in agreement that they did

not have enough evidence against appellee to convict her of murder, but instead filed a bigamy

charge against her. This charge was ultimately dismissed.

       In 2007, the cold case squad of the Houston Police Department reviewed the case against

appellee and decided to have a piece of the original evidence tested for DNA; this testing did not

produce any new evidence. The police department presented the case to the Harris County District

Attorney’s office in the spring of 2008. After discussing the case with a few members of the Major-

Offenders division that did not initially work on the case, the district attorney’s office brought the

case to the grand jury. Nearly 23 years after the murder, with no new evidence discovered, appellee

was indicted for murder.

       Appellee’s first witness at the hearing on her motion to dismiss was Dr. Jon DeFrance, a

clinical neuro-psychologist who testified that, in relation to other people her age, appellee suffers

from moderately impaired executive functions: her mental processing speed is quite slow and her

working memories are distorted. Dr. DeFrance hypothesized that these deficits could be due to

significant head trauma that appellee reportedly suffered from an automobile accident while in high
                                                                                                  4

school. Due to these impaired functions, Dr. DeFrance stated that appellee would not be able to give

a precise, reliable and accurate rendition of the occurrences on the day of the murder—she would

confuse pertinent facts about the case and has a diminished capacity to reconstruct events through

source memory. In comparison to her executive functioning 23 years earlier, appellee would be

tremendously disadvantaged in terms of assisting counsel in her defense. However, on cross

examination, Dr. DeFrance admitted that appellee was competent to stand trial and that his

comparison regarding her diminished executive functioning is based upon speculations about her

executive functioning at the time of the murder.

       Next, appellee called her son, Lloyd Gregory Krizan, a retired lieutenant for the Houston

Police Department. He testified that this mother has suffered a mental deterioration since 1985,

including significant memory problems. She regularly repeats herself, gets incidents mixed up, and

can’t tell a story because she cannot keep the facts straight. Krizan explained that his mother’s

memory issues have gotten progressively worse since 1985. He further noted that his mother has

been living adjacent to him for the last 15 years and has been easily available since the murder

occurred.

       Waymon Oliver Allen, a private investigator, was appointed to assist appellee’s counsel in

July, 2008. At the evidentiary hearing, Allen testified that appellee hired Clarence Thompson to

represent her in 1985. Thompson died in 1988, and after contacting Thompson’s widow, former

office colleague, probate lawyer, private investigator, and estate attorney, Allen was not able to

locate Thompson’s legal files regarding his representation of appellee. Nor was Allen able to

recover evidence originally collected by the defense and sent to a lab in Pasadena. Allen spoke with

Rafael Gonzales, a private investigator that had worked for Mr. Thompson on the case, but Gonzales
                                                                                                    5

was not able to give Allen any additional information because Gonzales had a very vague

recollection of the case and had turned over all evidence to Mr. Thompson. The forensic expert

hired by the defense, Floyd McDonald, is now deceased as well and is therefore unable to testify

about the results of the physical evidence collected from the crime scene that he examined. Allen

noted that, had the case been tried immediately after the victim was killed, other potential

evidence—such as footprints around appellee’s house—may have been discovered by the defense.

       Allen further testified that, at the time that appellee gave her oral statements to the police,

she made outcry statements to two co-workers that she had been sexually assaulted ten days before

the murder. Appellee alleged that the assaulter got into her car and drove to a small park located a

few blocks from her home. Allen reported that there was no documentation that the vehicle was ever

processed, nor was the car currently available to be processed. Further, Allen found no reports

indicating that the Houston Police searched for corroborating evidence at the park where appellee

alleged that the assault occurred.

       Allen reported that the victim’s medical records, in regards to both a worker’s compensation

claim that he had made shortly before his death and regarding the death itself, had been destroyed.

According to Allen, the worker’s compensation medical records were relevant to counter the state’s

theory that appellee’s motive for killing her husband was to collect life insurance proceeds from his

death. Allen reported that appellee’s medical records about her second sexual assault, which

allegedly took place during the same incident when her husband was killed, were also no longer

available.

       Allen further relayed that several witnesses that were interviewed at the time of the incident

were either dead, could not remember specifics, or could not be located. These witnesses included:
                                                                                                       6

Carl Fuller, appellee’s former co-worker; Gary Bunker, appellee’s and victim’s former neighbor; and

Harry Krater, appellee’s former neighbor to whom appellee “had told . . . everything.” Several other

neighbors that were initially interviewed by the police have remained in the same residences since

the incident but had not responded to Allen’s attempts to contact them as of the time of the hearing.

Allen noted that the state has not discovered or obtained any newly discoverable evidence since

1985.

        The state’s first witness was Robert Parish, a former Houston Police Officer who was one

of the original homicide investigators working on this case in 1985. Parish testified that, after

conducting a crime-scene investigation and interviewing appellee and her son extensively, the

investigating officers and the assistant district attorney, Chuck Rosenthal, were in agreement that the

prosecution did not have a winnable case. According to Parish, none of the people involved had any

intention of gaining a tactical advantage in their decision not to initially pursue the case. While there

were tests that were developed after 1985 that were later used on the existing evidence, no additional

information resulted, and Parish’s opinion regarding the quality of the case has remained unchanged.

        Next, the state called D.S. Wilker, a retired police officer who had returned to the Houston

Police Department to work in the cold case squad. Wilker testified that, when she began to

investigate this case in 2007, she asked the Houston Police Department Crime Lab to retrieve and

test evidence that was still available in the police property room, including appellee’s underwear that

had been cut off appellee after the murder, a gown that appellee was wearing on the night of the

murder, hairs, fibers, and various debris that were recovered from a bathtub full of water after

appellee took a bath, and one dried blood spot. The testing revealed no new information.

        Vic Wisner testified that, while working as a Harris County Assistant District Attorney in
                                                                                                                     7

2008, he received a call regarding this case from D.S. Wilker. According to Wisner, the case was

not prosecuted initially because the prosecutors incorrectly believed that they had to disprove

appellee’s story, which they did not feel that they could do. Instead, the prosecutors filed a bigamy

charge against appellee in order to get her into jail. That case was later dismissed. After reviewing

the case with two colleagues and finding merit, Wisner drafted an arrest warrant for appellee and

presented the case to the grand jury.

         Finally, the state called Curt Billy Bonzal, an investigator for the Harris County District

Attorney’s Office. Bonzal testified that he was able to locate almost all of the current, former, and

retired police officers who, according to the offense report, were at the crime scene or investigated

the case in 1985. Bonzal was also able to speak with five witnesses listed in the offense report who

live or lived on the street on which the crime occurred, as well as Carl Fuller, a friend of the family

who had been at the crime scene earlier that day. Further, Bonzal collected DNA swabs from Fuller,

appellee, and appellee’s son Robert, who was in the house at the time of the murder, and submitted

the swabs to the Houston Police Department Crime Lab. Bonzal testified that there were no

witnesses that he searched for that he could not find.2

                                             II. Standard of Review

         Statutes of limitations are the primary guarantee used to protect citizens from stale criminal

charges that impair those citizens’ abilities to defend themselves.3 However, such statutes are not

the only redress the accused have against extended charging delays; “the Due Process Clause [of the



         2
          W hile Bonzal noted that he could not locate Officer J.T. Norris, he also stated that he had “personally
contacted him.” It is unclear from the record whether Bonzal had actually spoke to Officer Norris.

         3
             United States v. Marion, 404 U.S. 307, 322-324 (1971).
                                                                                                                 8

Fifth Amendment] has a limited role to play in protecting against oppressive delay.”4 The Supreme

Court refrained from determining, in the abstract, the circumstance in which a pre-indictment delay

would result in a due-process violation, leaving the case-by-case assessment in the hands of the

lower courts.5 However, the Court provided guidance to the courts of appeals’ analysis by stating

that “Marion makes clear that proof of prejudice is generally a necessary but not sufficient element

of a due-process claim, and that the due-process inquiry must consider the reasons for the delay as

well as the prejudice to the accused.”6

        The federal circuit courts have split as to the standard by which to analyze such allegations

of due-process violation. Several circuits, including the Fifth Circuit prior to its decision in Crouch,7

have held that a defendant who moves to dismiss an indictment because of delay bears the burden

of demonstrating that the delay caused substantial prejudice to the defendant’s ability to defend

himself. Once the defendant fulfills this burden, the onus shifts to the state to proffer a reason for

such delay. The court then balances the prejudice to the defendant and the length of delay against

the state’s need for the delay in order to determine whether a due-process violation has occurred.8

In making such a balancing determination, hostile intent or a bad-faith purpose are not necessary in



        4
            United States v. Lovasco, 431 U.S. 783, 789 (1977).

        5
            Id. at 796.

        6
            Id. at 790.

        7
            Crouch v. State, 84 F.3d 1497, 1514 (5th Cir. 1996).

        8
           See, e.g., United States v. Townley, 665 F.2d 579 (5th Cir. 1982); see also United States v. Corona-
Verbera, 509 F.3d 1105 (9th Cir. 2007); United States v. Sowa, 34 F.3d 447, 451 (7th Cir. 1994); Howell v. Barker,
904 F.2d 889, 895-96 (4th Cir. 1990); United States v. Moran, 759 F.2d 777, 782 (9th Cir. 1985). Cf. United States
v. Ray, 578 F.3d 184, 199-200 (2nd Cir. 2009) (must show both prejudice and an unjustified reason for delay, but
factors are weighed against each other and surrounding circumstances).
                                                                                                                   9

order to find that a delay has violated those “fundamental conceptions of justice which lie at the base

of our civil and political institutions,9 and which define the community’s sense of fair play and

decency.”10

        The Fifth Circuit strayed from the Townley balancing test in Crouch when it held that, “where

an indictment is returned within the statute of limitations, pre-indictment delay does not violate due

process unless that delay, in addition to prejudicing the accused, was intentionally brought about by

the government for the purpose of gaining some tactical advantage over the accused in the

contemplated prosecution or for some other bad faith purpose.”11 This Court has followed the Fifth

Circuit’s bright-line methodology in holding that, in order to be entitled to relief, a defendant must

demonstrate that the delay: 1) caused substantial prejudice to his right to a fair trial, and 2) was an

intentional device used to gain a tactical advantage over the accused.12 While not fully adopting the

Fifth Circuit’s “other impermissible, bad-faith purposes”13 language, this Court found in Ibarra that

the state’s pre-indictment delay did not violate the Due Process clause because “nothing in the record

suggests that the State intentionally delayed the case to gain a tactical advantage over appellant or

otherwise acted in bad faith.”14 In doing so, this Court effectively left open the possibility the state

may commit a due-process violation for reasons other than to gain a tactical advantage, but has not

        9
             Lovasco, 431 U.S. at 790.

        10
             Id. (citing Rochin v. California, 342 U.S. 165, 173 (1952)).

        11
              Crouch, 84 F.3d at 1523.

        12
             Spence v. State, 795 S.W .2d 743, 749 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 932 (1991); Ibarra
v. State, 11 S.W .3d 189, 193 (Tex. Crim. App. 1999).

        13
             Crouch, at 1514.

        14
             Ibarra, 11 S.W .3d at 193 (emphasis added).
                                                                                                    10

specified which reasons constitute “bad faith purposes.”

       In reviewing the dismissal of an indictment, the appellate court must review the trial court’s

ruling under a bifurcated standard.15 The court of appeals must give almost total deference to a trial

court’s findings of facts that are supported by the record, as well as mixed questions of law and fact

that rely upon the credibility of a witness.16 However, the court of appeals applies a de novo standard

of review to pure questions of law and mixed questions that do not depend on credibility

determinations.17

                                             III. Court of Appeals

       The Fourteenth Court of Appeals held that, as a matter of law, the evidence did not establish

that the prosecutorial delay was intentionally committed in order to gain a tactical advantage over

appellee or for some other improper purpose. The court of appeals found that, whether Vic Wisner’s

testimony was believed or disbelieved by the trial judge, appellee still did not meet her burden of

proof as to the second prong of the due-process analysis. Although the delay was not for

investigative purposes, the only evidence relating to the pre-indictment delay simply showed a

disagreement as to the merits of the case between the original prosecutors and police investigators,

and a later prosecutor. Therefore, the trial court erred in dismissing the indictment on the ground

that appellee’s due-process rights were violated.

                                                  IV. Analysis

                                          A. Trial Court Deference


       15
            Guzman v. State, 955 S.W .2d 85, 87–89 (Tex. Crim. App. 1997).

       16
            Id; see also State v. Moff, 154 S.W .3d 599, 601 (Tex. Crim. App. 2004).

       17
            Id.
                                                                                                      11

        Appellee first claims that the court of appeals erred by failing to afford the requisite level of

deference to the trial court’s factual findings. The court of appeals found that the trial court’s ruling

was a “resolution of a question of law [that] does not turn on an evaluation of credibility and

demeanor”18 and reviewed the issue under a de novo standard. According to appellee, the issue of

whether the state intentionally delayed prosecution in order to gain a tactical advantage over the

defendant, or otherwise prejudice her, is a factual finding. Therefore, the court of appeals must apply

the standard of abuse of discretion, overturning the trial court’s finding only if it is unsupported by

the record.19

        While appellee properly states the standard of review for a trial court’s factual findings,

appellee is mistaken that the trial court’s determination regarding the state’s motivation for delay is

a “finding of fact.” Rather, the conclusion that “[t]he State’s delay of the prosecution of Defendant

for more than two decades is for the purpose of gaining a tactical advantage over the Defendant at

trial”20 is an “application of law to fact” ruling which turns on the trial judge’s evaluation of the

credibility and demeanor of the witnesses. Although appellee incorrectly categorized the trial court’s

conclusion, appellee is correct that the court of appeals applied the incorrect standard of review and

should have reviewed the trial court’s ruling under an abuse of discretion standard, upholding the

trial court’s ruling as long as it was supported by the record.

        However, after reviewing the record of appellee’s hearing on her motion to dismiss the

indictment, we find that the court of appeals correctly determined that there is no evidence in the


        18
             Krizan-Wilson, 321 S.W .3d at 623-624.

        19
             Cantu v. State, 817 S.W .2d 74, 77 (Tex. Crim. App. 1991).

        20
             C.R.-Supp. at 10.
                                                                                                                    12

record that the prosecutorial delay was intended to gain a tactical advantage over appellee or for

another improper purpose. Appellee presented no evidence that suggested that the state delayed the

case for any reason other than a difference in opinions between the original prosecution team and

other prosecutors 23 years later. Therefore, the trial court’s resolution of this mixed question was

not supported by the record. Despite the application of an incorrect standard of review, the court of

appeals afforded the trial court the proper level of deference.

         As the court of appeals noted, even if the witnesses’ testimonies—and specifically Vic

Wisner’s testimony—is believed or disbelieved, there is still no evidence of strategic intentional

delay. During her hearing on her motion to dismiss, appellee had the burden to prove that the state’s

delay was an intentional device used to gain a tactical advantage.21 It is not enough for appellee to

argue that the trial court may have disbelieved each and every witness that testified that the state had

no negative intentions for the delay, appellee must still present positive proof of such an improper

purpose.22 Appellee failed to do so and therefore, did not meet her burden of proof.

         Appellee’s son Lloyd, a retired lieutenant in the Houston Police Department, stated that he

believes that these charges against his mother should have been filed sooner if they were going to

be filed. Nevertheless, he admitted that he did not believe that the prosecutors had any evil

intentions for the delay and that he had previously witnessed officers and assistant district attorneys

have good-faith differences as to the merits of a case.23 Robert Parish, the original police

         21
              Spence, at 749; Ibarra, at 193.

        22
             See Janecka v. State, 937 S.W .2d 456, 471-472 (Tex. Crim. App. 1996) (absent some positive evidence
of coercion, appellant’s contention that jury “could have” disbelieved officer testimony or “could have interpreted”
police’s statements as coercive not enough to prove trial court error for failing to give voluntariness-of-confession
instruction)

         23
              II R.R. at 130.
                                                                                                   13

investigator working on this case in 1985, testified that he and the district attorney’s office were

initially in agreement that they did not have enough to go forward. Even though his opinion of the

case remains the same, he did not know of any discussions amongst the prosecutors or investigators

that the filing of the case was to be delayed for tactical reasons.

        Vic Wisner testified that he and his colleagues in the Major-Offenders division of the

Houston District Attorney’s Office were all in agreement that this was a winnable case; the only

reason that it was not filed in 1985 was that the original prosecutors labored under a faulty theory

of law. The original detective on the case still felt that the case lacked sufficient evidence for a

conviction, yet the new prosecutors disagreed. Wisner never felt that anyone was acting in bad faith.

Although Wisner believed that the district attorney’s office would not have filed the bigamy charge

against appellee had they not suspected her of the murder, he explained that this had been standard

practice of the district attorney’s office in 1985.

        The court of appeals applied an incorrect standard of review, however, correctly found that

the evidence presented at appellee’s hearing on her motion to dismiss the indictment failed to show

that the prosecutorial delay was grounded in an impermissible purpose. Accordingly, the court of

appeals afforded the trial court the appropriate level of deference. We overrule sub-issue (1).

                                            B. Bad Faith

        Appellee next claims that the Fifth Amendment Due Process Clause does not require appellee

to prove that the state delayed its prosecution for an impermissible purpose. Rather, upon proving

prejudice, the burden shifts to the state to proffer a reasonable explanation for the delay. The court

of appeals incorrectly found that it was bound on this issue by prior reasoning from the Fifth Circuit

opinion that required proof of invidious governmental intent or bad faith. Appellee is correct that
                                                                                                               14

the court of appeals was not bound by the Fifth Circuit ruling with respect to the framework in which

to conduct a due-process analysis. However, the court of appeals is bound by the precedents of this

Court, which has held for more than two decades that, in order to establish a due-process violation,

appellee has the burden of proving both prejudice and that an intentional delay was designed to give

the state a tactical advantage.24 In Ibarra, this Court reaffirmed the two-pronged protocol that must

be satisfied in order to obtain relief under the Fifth Amendment’s Due Process Clause. Accordingly,

appellee’s sub-issue (2) is overruled.

                                         C. Due-process Analysis

        The court of appeals correctly found, and the state concedes, that appellee has suffered

prejudice from the lengthy delay of this case. Appellee’s original attorney, Clarence Thompson, has

died, and his files cannot be located. Thompson’s former investigator does not recall the case, and

the evidence that he collected and handed over to Thompson has been lost. The forensic investigator

hired by Thompson is also deceased, and other potential evidence from the crime scene is no longer

available. Among appellee’s witnesses, some have died. The whereabouts of others are unknown,

or the memories of others have faded. Medical records pertaining to the victim’s transportation to

the hospital, the victim’s worker’s compensation claim, as well as the alleged sexual assault on

appellee have all been destroyed. Finally, appellee presented significant evidence regarding her

mental deterioration and inability to testify in her own defense. Appellee has proved the first

element of the due-process analysis, prejudice to one’s ability to defend oneself.

        However, appellee fails to meet the second prong. As noted in our analysis of sub-issue (1),



        24
           Spence, 795 S.W .2d at 750 (“Appellant has been able to show delay; however, he has not met his burden
to show that it was an intentional delay which was designed to give the State a tactical advantage over him.”).
                                                                                                      15

no evidence was presented that leads to the conclusion that the state delayed appellee’s indictment

in order to gain a tactical advantage or for other bad faith purposes. The only evidence presented to

explain the delay is that a new prosecutor now believes, 23 years later and based on the same

evidence, that the case is worth prosecuting. In her brief, appellee argues that

        Wisner’s testimony demonstrated bad faith on the State’s part by showing that the State: (1)
        intentionally withheld filing the charge because, although the case was a strong and easy case
        from the State’s perspective, the State wanted to be in a better situation to overcome
        Petitioner’s defensive theory; and (2) chose not to file the murder charge against Petitioner
        but filed a bigamy charge that would never have been [filed] against someone else.

        Appellee argues that the former point demonstrates that the state’s intent for delaying was

specifically focused on the strength of appellee’s defense, rather than the strength of its own case.

In doing so, appellee ignores the fact that the prosecutors and detectives initially working on this case

did not believe that the case was a “strong and easy case.” To the contrary, the officers and assistant

district attorneys originally assigned to this case were in agreement that the case was not winnable.

Only after 23 years, when a new prosecutor examined the file, did a prosecutor believe that this case

was strong enough to try. Even after indictment, the original investigators and Wisner disagreed as

to the strength of this case.

        Moreover, appellee misconstrues Wisner’s testimony regarding the state’s response to

appellee’s defensive theory. Wisner testified that the state did not file this case in 1985 because the

original prosecutor labored under a faulty theory of law—that the state needed to disprove appellee’s

story rather than prove the elements of the prosecution’s case beyond a reasonable doubt. In

acknowledging this incorrect assumption, Wisner’s testimony supports the opposite conclusion: the

state’s intention in failing to file this case in 1985 was not to put the state in a better position to

overcome appellee’s defensive theory, but rather, other assistant district attorneys realized in 2008
                                                                                                                  16

that the state did not need to overcome this hurdle. These prosecutors believed that, under the

correct theory of law, the evidence was legally sufficient to convict.

         Appellee also contends that the state’s decision to charge appellee with bigamy, a charge that

the state admittedly would not have filed except for its suspicion that appellee was guilty of murder,

proves the state’s bad intentions. However, Vic Wisner testified that, in 1985, it was common

practice among Harris County prosecutors to file a less or equally serious crime against a person who

was suspected of a higher crime in order to present evidence of that higher crime at the punishment

stage. This strategic decision by the district attorney’s office, on its own, fails to establish the

requisite ill-intent of the state’s postponed filing of the murder charge.

         While appellee has shown significant prejudice as a result of the state’s delay, the second

prong of this two-part analysis cannot be established by fulfilling the first; proving delay and

prejudice does not prove bad faith.25 There is no requirement that the police or prosecutors conduct

a continuous investigation,26 and “prosecutors are under no duty to file charges as soon as probable

cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a

reasonable doubt.”27 Nor are prosecutors required to file public charges immediately when the state




        25
            See United States v. Proctor, 505 F.3d 366, 370 (5th Cir. 2007) (prosecutorial delay in filing not bad
faith when prosecutors had “all the evidence to prosecute” five years prior); State vs. White, No. 03-07-00041-CR,
2010 Tex. App. LEXIS 6766, at *18 (Tex. App.— Austin, August 19, 2010, no pet.) (not designated for publication)
(death of as many as 27 witnesses over 17-year delay proved prejudice but not bad faith); Grimaldo v. State, No. 07-
99-0006-CR, 2000 Tex. App. LEXIS 4186, at *3 (Tex. App.— Amarillo, June 21, 2000, no pet.) (mem. op., not
designated for publication) (proof of 20-month delay for no good reason failed to prove bad faith).

        26
             Ibarra, at 193-194.

        27
             Lovasco, at 791.
                                                                                                                        17

has obtained enough evidence to prove guilt beyond a reasonable doubt.28 As described by the

United States Supreme Court in Lovasco, such a requirement would cause injurious societal harms

to the rights of the accused, law enforcement, prosecutors, and the judicial system.29

         Appellee has failed to prove that the state’s prosecutorial gap was for the purpose of gaining

a tactical advantage over appellee or for some other impermissible purpose, thus, appellee has failed

to establish the second prong of the due-process analysis.

         Appellee further argues that, even absent a showing of bad faith, “holding someone to answer

for a crime that occurred over 23 years ago, and for which no limitations period exists, where the

government cannot offer any reasonable basis for the delay whatsoever and where the person has

suffered actual, substantial prejudice,” violates that person’s Fifth Amendment right to due process

of law as it offends “fundamental conceptions of justice . . . which define the community’s sense of

fair play and decency.”30 We do not contend that a 23-year, non-investigative pre-indictment delay,



         28
           Id. at 792-793 (such a requirement would cause problems in criminal transactions involving more than
one person or illegal act, would impair prosecutor’s ability to continue an investigation, would cause multiple trials
involving a single set of facts, and would burden defendants, law-enforcement officials, and courts. Prosecutors
would often resolve doubtful cases in favor of early, possibly unwarranted, prosecution).

         29
              See id. at 791-792 (“To impose such a duty ‘would have a deleterious effect both upon the rights of the
accused and upon the ability of society to protect itself.’ From the perspective of potential defendants, requiring
prosecutions to commence when probable cause is established is undesirable because it would increase the likelihood
of unwarranted charges being filed, and would add to the time during which defendants stand accused but untried.
These costs are by no means insubstantial since, as we recognized in Marion, a formal accusation may ‘interfere with
the defendant’s liberty, . . . disrupt his employment, drain his financial resources, curtail his associations, subject him
to public obloquy, and create anxiety in him, his family, and his friends.’ From the perspective of law enforcement
officials, a requirement of immediate prosecution upon probable cause is equally unacceptable because it could make
obtaining proof of guilt beyond a reasonable doubt impossible by causing potentially fruitful sources of information
to evaporate before they are full exploited. And from the standpoint of the courts, such a requirement is unwise
because it would cause scarce resources to be consumed on cases that prove to be insubstantial, or that involve only
some of the responsible parties or some of the criminal acts. Thus, no one’s interests would be well served by
compelling prosecutors to initiate prosecutions as soon as they are legally entitled to do so”) (citations and footnotes
omitted).

         30
              Id. at 790.
                                                                                                  18

during which no new evidence is obtained, need not be scrutinized more closely than a similar delay

for investigatory purposes. The Supreme Court has drawn a distinction between prosecutorial delays

for investigatory purposes and delays for the purpose of gaining a tactical advantage over the

accused, emphasizing the need not to penalize prosecutors who delay action for the purpose of

procuring additional evidence.31 However, absent proof of an improper purpose, the simple fact that

a lengthy delay has occurred for no other reason than a difference of opinions amongst prosecutors

does not violate due process.

       Judges are not free, in defining “due process,” to impose on law enforcement officials
       our “personal and private notions” of fairness and to “disregard the limits that bind
       judges in their judicial function.” Our task is more circumscribed. We are to
       determine only whether the action complained of–here, compelling respondent to
       stand trial after the Government delayed indictment to investigate further–violates
       those “fundamental conceptions of justice which lie at the base of our civil and
       political institutions,” . . . and which define “the community’s sense of fair play and
       decency.”32

        For the offense of murder, the Texas legislature has intentionally chosen not to define a

statute of limitations,33 explicitly allowing prosecutors to indict suspected murderers when they are

ready to do so, and has determined that any such delay, without more, does not offend the

community’s sense of fair play and decency. While lengthy delays in prosecution will undoubtedly

prejudice the accused, the “real possibility of prejudice inherent in any extended delay: that

memories will dim, witnesses become inaccessible, and evidence be lost,”34 is not, in itself, enough



       31
            See Ibarra, at 194; Lovasco, at 795.

       32
            Lovasco, at 790 (citations omitted).

       33
            T EX . C O D E C RIM . P RO C . art. 12.01(1)(A).

       34
            United States v. Marion, 404 U.S. at 325-326 (1971).
                                                                                                                      19

to justify the dismissal of an indictment.35 Therefore, we find that a 23-year pre-indictment delay

does not offend due process.

                                                     Conclusion

         We overrule appellee’s sole ground for review, affirm the judgment of the court of appeals,

and remand the cause to the trial court for further proceedings.



Delivered: December 14, 2011
Publish




         35
             Lengthy delay also has the potential to be detrimental to the state’s prosecution, as its witnesses may also
die, forget, or be unlocatable.
