                             NUMBER 13-12-00289-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ROBERT DALE JOHNSON,                                                          Appellant,

                                            v.

THE STATE OF TEXAS,                                                            Appellee.


                    On appeal from the 163rd District Court
                          of Orange County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
            Memorandum Opinion by Justice Benavides
       By one issue, appellant Robert Dale Johnson asserts that the State violated his

due process rights by delaying his indictment for burglary of a building.   See TEX. PENAL

CODE ANN. § 30.02(a)(2) (West 2011). We affirm.
                                     I.      BACKGROUND1

       In December 2010, Johnson burglarized the liquor shed of Spanky’s Restaurant in

Orange County, Texas.          Spanky’s owner Mike Lemoine provided the Orange Police

Department with surveillance footage of the burglary that purportedly depicted Johnson

committing the act.       Police opened an investigation but did not immediately arrest

Johnson.

       On January 1, 2011, Johnson was arrested for an unrelated felony theft at

Wal-Mart. Johnson was indicted for the felony theft offense on July 6, 2011, entered an

open plea, and was sentenced to nine months in state jail.

       The State then indicted Johnson for the Spanky’s burglary on December 7, 2011.

On March 2, 2012, Johnson pleaded guilty to the underlying offense and the trial court

sentenced him to eighteen months’ imprisonment with the Texas Department of Justice,

Institutional Division.   This appeal ensued.

                               II.        PRE-INDICTMENT DELAY

       By his sole issue, Johnson contends that the State’s one-year delay in indicting

him for burglary of a building constituted an oppressive delay in violation of his right to

due process under the Fifth and Fourteenth Amendments to the United States

Constitution.




       1
         This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
73.001 (West 2005).

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       A.     Standard of Review and Applicable Law

       Under the U.S. Constitution, due process requires dismissal of the indictment if a

defendant shows that the pre-indictment delay caused (1) substantial prejudice to the

defendant’s rights to a fair trial and (2) that the delay was an intentional device to gain

tactical advantage over the accused.         United States v. Marion, 404 U.S. 307, 322

(1971); see Ibarra v. State, 11 S.W.3d 189, 193 (Tex. Crim. App. 1999); State v. McCoy,

94 S.W.3d 296, 301 (Tex. App.—Corpus Christi 2002, no pet.).

       A “delicate judgment based on the circumstances of each case” is required in our

review of whether a defendant’s rights to a fair trial were violated.     Marion, 404 U.S. at

325.   Furthermore, the applicable statute of limitations is the primary assurance against

bringing an unduly stale criminal charge.     Ibarra, 11 S.W.3d at 193.    In Texas, burglary

of a building carries a three-year statute of limitations.   See TEX. CODE CRIM. PROC. ANN.

art. 12.01(7) (West Supp. 2011).        However, the statute of limitations does not fully

define a defendant's rights with respect to the events occurring prior to indictment; the

Due Process Clause has a limited role to play in protecting against oppressive delay.

Ibarra, 11 S.W.3d at 193.

       Prosecutors are under no duty to file charges before they are satisfied they can

prove a suspect's guilt beyond a reasonable doubt.           McCoy, 94 S.W.3d at 301 (citing

United States v. Lovasco, 431 U.S. 783, 791 (1977)).              To prosecute a defendant

following investigative delay does not deprive him of due process, even if his defense

might have been somewhat prejudiced by the lapse of time.          McCoy, 94 S.W.3d at 301.




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       B.       Discussion

       After applying the two-prong test to the present case, we conclude that Johnson’s

due process rights were not violated.          The burglary charge was filed within the

three-year statute of limitations.    Furthermore, nothing in the record shows that his

rights to a fair trial were substantially prejudiced by the State’s one-year delay to indict

him.   Defendant’s fourth exhibit was admitted into evidence and illustrates the following

timeline:

               Date of Offense: 12/9/10

               Submitted to [District Attorney]: 9/16/11

               Indicted: 12/7/11

               [Attorney appointed]: 1/4/12

       The record shows that despite the video evidence, Orange police attempted to

discuss the burglary with Johnson in February 2011, prior to his sentencing in the felony

theft case, but Johnson refused to speak with them.         Moreover, it shows that the State

indicted Johnson three months after the Orange police submitted the case to the district

attorney’s office.    We do not agree with Johnson’s argument that this delay was

oppressive.     See Lovasco, 431 U.S. at 794–95 (declining to adopt a rule which would

require prosecutors to make charging decisions immediately upon assembling evidence

sufficient to establish guilt). The trial court also stated that it equally considered in its

sentencing ruling (1) the time Johnson lost and (2) what personal progress he has made

during the time he may have lost, as shown by testimony.         Finally, the record does not

support Johnson’s argument that the State’s delay was intended to “keep [him]

continuously incarcerated.” Accordingly, we overrule Johnson’s issue.


                                               4
                                  III.   CONCLUSION

       We affirm the trial court’s judgment.



                                                   __________________________
                                                   GINA M. BENAVIDES,
                                                   Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
11th day of April, 2013.




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