Opinion issued August 9, 2016




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00897-CR
                          ———————————
                 ENRIQUE CHAVEZ AGUIRRE, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 178th District Court
                           Harris County, Texas
                        Trial Court Case No. 950986


                        MEMORANDUM OPINION

      A jury convicted Enrique Chavez Aguirre of aggravated sexual assault of a

child under 14 years of age. See TEX. PENAL CODE § 22.021(a)(1)(B). The court

assessed punishment at 30 years’ imprisonment. On appeal, Aguirre argues that he
should have been granted a new trial due to his trial counsel’s failure to assert his

Sixth Amendment right to a speedy trial.

      Finding no reversible error, we affirm the trial court’s judgment.

                                   Background

      Appellant Enrique Chavez Aguirre is a Mexican citizen. In 2003, he lived in

Houston with his girlfriend. Four children lived in the house with them: Aguirre’s

son, Enrique Jr., and his girlfriend’s three children, one of whom is the

complainant in this case. One day the complainant, who was 11 years old at the

time, reported to a friend and to a teacher that Aguirre had touched her

inappropriately. The school reported the incident, and Child Protective Services

brought the complainant to the Children’s Assessment Center for an interview and

medical exam. At this interview, the complainant disclosed that on more than one

occasion Aguirre had placed his mouth on her vagina, and he had sexually

assaulted her sister. Aguirre was charged with aggravated sexual assault of a child,

but he disappeared soon after the complainant reported the incident.

      In 2013, Aguirre was arrested pursuant to the 10-year-old warrant. Aguirre’s

trial counsel did not object to the lack of a speedy trial, and the factual

circumstances of the arrest were not discussed at trial. The jury found Aguirre

guilty of aggravated sexual assault of a child under 14 years of age. Enrique Jr.

testified during the punishment stage on behalf of his father. After the accusations



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were originally made against his father, Enrique Jr. moved to Mexico with his

uncle, and he did not see his father while living there. The court imposed a

sentence of imprisonment for 30 years.

      Aguirre filed a motion for new trial, asserting among other issues that his

trial counsel was ineffective for not raising a speedy-trial claim. The motion

included an affidavit from Enrique Jr. stating that Aguirre had applied to renew his

permanent residency card in 2012 and was unaware of the pending indictment

against him. This affidavit stated that in November 2012, Aguirre hired an

immigration attorney from McAllen, Texas. It did not definitively state whether

Aguirre met with the attorney in person. Also attached to the motion were an

immigration appointment notice for December 28, 2012 in Las Vegas, Nevada, and

a copy of the approved residency card, which was in the name of Enrique Aguirre

Chavez, rather than Enrique Chavez Aguirre.

      The trial court held a hearing on this motion. The only witness was

Aguirre’s trial counsel. Trial counsel admitted after examination by Aguirre’s

appellate counsel that he had not researched the law relating to the right to a

speedy trial for this case, beyond examining one Supreme Court opinion. He also

testified that he had been a criminal lawyer for 32 years, and he had represented

clients in roughly 300 trials.




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      Trial counsel further testified that after speaking to his client and his family,

he understood that Aguirre intentionally left Harris County and fled to Mexico

after the charges were filed in 2003. Trial counsel stated that he did not elicit

testimony on this subject because he did not want to open the door to cross-

examination as to why Aguirre left the country. In response to the suggestion that

Aguirre may have been living in Nevada or Texas at some point during the 10

years that the warrant was pending, trial counsel testified that he “had no

knowledge from anybody that he . . . was living in Henderson, Nevada, or that he

was living [in] the United States at all during this time.” Counsel went on to

explain that, based on his conversations with Aguirre and his brother, he did not

believe that a speedy-trial claim was a “meritorious defense” for this case and his

decision not to pursue the claim was a strategic one.

      The trial court denied the motion for new trial and read its findings of fact

and conclusions of law into the record. The court concluded that trial counsel’s

decision not to litigate the speedy-trial issue “was based upon reasonable trial

strategy” and was made with sufficient knowledge of the relevant law. The court

also found that trial counsel did not have any knowledge or information that

Aguirre lived in the United States at any time between his 2003 indictment and his

2013 arrest.




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      The trial court briefly analyzed the factors involved in the analysis of a

speedy-trial claim and found that they were not satisfied. The court found that the

reason for the delay between the indictment and arrest was that Aguirre “left the

jurisdiction to avoid arrest and prosecution for the offenses” in question and that he

did not timely assert his right to a speedy trial or show prejudice. The trial court

also found that there was no evidence of negligence on the part of the State in the

delayed arrest, because the name on the immigration documents was “Enrique

Aguirre Chavez” rather than Enrique Chavez Aguirre. The trial court concluded

that trial counsel’s performance was not deficient and that had the speedy-trial

issue been raised, the trial’s outcome would not have been different. Aguirre

appealed.

                                      Analysis

      On appeal, Aguirre asserts that his trial counsel’s failure to litigate a speedy-

trial claim for his case was ineffective assistance of counsel. He further contends

that the trial court erred in denying his motion for new trial on that basis. These

two issues are effectively the same for the purposes of our review. Because

Aguirre made his claim of ineffective assistance of counsel in a motion for new

trial, this court must determine whether the trial court erred by denying that

motion. See Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); Lopez v.

State, 428 S.W.3d 271, 278 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). An



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appellate court reviews a trial court’s denial of a motion for new trial for abuse of

discretion, and it will only reverse if the trial judge’s opinion was “clearly

erroneous and arbitrary.” Riley, 378 S.W.3d at 457. The appellate court must view

all evidence in the light most favorable to the trial court’s ruling and presume that

the trial court made all reasonable factual findings in support of the ruling that are

supported by the record. State v. Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App.

2014). This court cannot substitute its own judgment for that of the trial court and

must uphold the trial court’s ruling if it is within the zone of reasonable

disagreement. Riley, 378 S.W.3d at 457.

      This court also must give deference to the trial court’s determination of

historical facts when based solely on affidavits, regardless of whether the affidavits

are controverted. Id. “The trial court is free to disbelieve an affidavit, especially

one unsupported by live testimony.” Id. When there is a mixed question of law and

fact that turns on “an evaluation of credibility and demeanor,” the trial court’s

findings are entitled to almost total deference. Id. at 458.

      The Sixth Amendment does not require merely that a criminal defendant

have an attorney appointed, but that the lawyer also gives reasonably effective

assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984). In order to demonstrate that trial counsel was ineffective, an appellant must

demonstrate that: “1) trial counsel’s performance was deficient because it fell



                                           6
below an objective standard of reasonableness; and 2) a probability sufficient to

undermine confidence in the outcome existed that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Rylander v. State,

101 S.W.3d 107, 109–10 (Tex. Crim. App. 2003).

      A reviewing court “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Nava v. State, 415 S.W.3d

289, 307–08 (Tex. Crim. App. 2013). An appellant must “overcome the

presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.” Ex parte Ellis, 233 S.W.3d 324, 330 (Tex. Crim.

App. 2007) (quoting Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App.

1992)). The mere fact that an attorney identifies a particular strategy does not

prevent us from determining that a specific act or omission was outside the range

of competent assistance. See id. However, reviewing courts must “avoid the

deleterious effects of hindsight” and find deficient performance only when “no

reasonable trial attorney would pursue such a strategy under the facts” of a case.

Id. at 330–31.

      Trial counsel has a duty to become acquainted with the facts of the case and

conduct a reasonable investigation. Strickland, 466 U.S. at 691, 104 S. Ct. at 2066;

Ex parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983) (“It is fundamental



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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.”). “Strickland

does not require defense counsel to investigate each and every potential lead” but it

does require a strategic decision based on a “thorough understanding of the

available evidence.” Ex parte Woods, 176 S.W.3d 224, 226 (Tex. Crim. App.

2005); see also Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003).

       A speedy trial is guaranteed to the accused by the Sixth and Fourteenth

Amendments to the Constitution, and the sole remedy when the accused is

deprived of this right is dismissal. See Barker v. Wingo, 407 U.S. 514, 522, 92 S.

Ct. 2182, 2188 (1972). A determination of whether a defendant has been deprived

of this right requires the weighing and balancing of four factors identified by the

Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972):

“1) length of the delay, 2) reason for the delay, 3) assertion of the right, and

4) prejudice to the accused.” Id. at 530, 92 S. Ct. at 2192; Cantu v. State, 253

S.W.3d 273, 280 (Tex. Crim. App. 2008).

      The State generally bears the burden of justifying the length of the delay

between accusation and trial, while the defendant must prove the assertion of the

right and show prejudice. Cantu, 253 S.W.3d at 280. 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



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speedy trial. Id. at 280–81. An appellant’s “failure to diligently and vigorously

seek a rapid resolution [to the prosecution] is entitled to ‘strong evidentiary

weight.’” Id. at 284 (quoting Barker, 407 U.S. at 531, 92 S. Ct. at 2192).

      Aguirre argues on appeal that trial counsel did not conduct a reasonable

investigation of the facts or law relating to his potential speedy-trial claim. He

asserts that the immigration documentation shows that he had contact with the

federal government, and that the affidavit attached to the motion for new trial

proves that Aguirre visited his son in McAllen, Texas. Aguirre suggests that this

shows that the State was negligent in its attempts to find him and bring him to trial.

He asserts that this combined with the inherent prejudice in the 10-year delay

would have led to a successful speedy-trial claim if trial counsel had pursued one.

      However, the trial court made explicit factual findings that directly

controverted the premises of this argument. The trial court found that Aguirre left

the jurisdiction to avoid prosecution, and it determined that there was no evidence

in the record of the circumstances of his arrest or where he was living during the

10-year period. Aguirre’s name was different on his immigration documents, and

the court found that this (rather than the State’s negligence) was one of the causes

of the delay in arresting him. Because these findings of historical fact are

supported by the record, we must defer to them. See Thomas, 428 S.W.3d at 103–

04.



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      In its ruling on the motion, the trial court also determined several mixed

questions of fact and law which turned on its evaluation of “credibility and

demeanor.” Riley, 378 S.W.3d at 458. Key among these was its finding that trial

counsel’s decision not to pursue a speedy-trial claim was a reasonable strategic

decision. Because Aguirre did not litigate a speedy-trial claim, this court cannot

review that claim on the merits. See TEX. R. APP. P. 33.1. However, an examination

of how the Barker factors could apply to this case is helpful in determining

whether any reasonable attorney would choose not to assert a speedy-trial claim,

and as a result whether the record supports the trial court’s findings that counsel

was not deficient.

      The first Barker factor—length of the delay—would weigh in Aguirre’s

favor. As acknowledged by the trial court, a delay of 10 years is presumptively

prejudicial. See Cantu, 253 S.W.3d at 281 (noting that while there is no set time

element that triggers the analysis, a 17-month delay has been found presumptively

prejudicial). The second Barker factor—the reason for the delay—is not supported

by any evidence suggesting that it would be in Aguirre’s favor. There is nothing in

the record on this subject, and any conjecture about the State’s role in the delay

would be purely hypothetical. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192. The

third Barker factor—assertion of the right—is undermined by the trial court’s

finding, which is supported by the record, that Aguirre told trial counsel that he



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intentionally left the country to avoid prosecution. This fact seriously impedes

Aguirre’s speedy-trial claim, as it would show that rather than “vigorously

seek[ing] a rapid resolution” to the indictment, he instead deliberately frustrated

the State’s attempts to prosecute him. See Cantu, 253 S.W.3d at 284. Trial

counsel’s stated concern about opening the door to damaging information that the

State could later use in trial also was reasonable under these circumstances.

      Finally, the fourth Barker factor—prejudice to the accused—must be

analyzed “in light of the defendant’s interests that the speedy-trial right was

designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to

minimize the accused’s anxiety and concern, and (3) to limit the possibility that the

accused’s defense will be impaired.” Cantu, 253 S.W.3d at 285. Because Aguirre

was not imprisoned during the delay, and according to his own affidavit he was not

aware of the indictment, neither of the first two rights are implicated here. See id.

To the extent Aguirre asserts that the delay itself is a prima facie showing of

prejudice that the State was required to rebut regardless of whether he presented

evidence, see Dragoo v. State, 96 S.W.3d 308, 316 (Tex. Crim. App. 2003), we

note that the “presumption of prejudice to the defendant’s ability to defend himself

is ‘extenuated . . . by the defendant’s acquiescence’ in the delay.” Shaw v. State,

117 S.W.3d 883, 890 (Tex. Crim. App. 2003) (quoting Doggett v. United States,

505 U.S. 647, 658, 112 S. Ct. 2686, 2694 (1992)). If the trial court had found that



                                         11
Aguirre acquiesced in the delay by evading prosecution, the presumption of

prejudice in this case would have been extenuated. It is also uncertain what

evidence the State would have adduced to rebut any further argument of prejudice,

as both at trial and on appeal the State was required to respond only to Aguirre’s

claim of ineffective assistance of counsel, and not his potential Sixth Amendment

speedy-trial claim.

      Even assuming the first two Barker factors were highly favorable to Aguirre,

the third factor would weigh heavily against him and open the door to potentially

damaging information, and it is far from clear that the fourth factor would work in

his favor. See id.; Cantu, 253 S.W.3d at 285. The uncertain success of the claim

and its possible negative effects on the trial as a whole would be enough to prevent

a reasonable attorney from pursuing a speedy-trial claim. A reasonable view of the

record supports the trial court’s conclusion that trial counsel’s decision not to

pursue a speedy-trial claim was a matter of reasonable trial strategy and not

deficient performance.

      Aguirre’s argument that trial counsel’s “incomplete” investigation renders

his strategic decision deficient is unavailing. While trial counsel has a duty to

research the facts and law when making a strategic legal decision, counsel is not

required “to investigate each and every potential lead.” Woods, 176 S.W.3d at 226.

Trial counsel’s testimony, which the trial court found credible, stated that he spoke



                                         12
with both Aguirre and other family members. None of them suggested that Aguirre

was living in the United States after the warrant was issued, and Aguirre himself

admitted that he fled to Mexico in response to the charges.

      The only evidence presented that Aguirre was living in the United States at

any time after charges were filed came from his son’s affidavit, which the trial

court was free to disbelieve. See Riley, 378 S.W.3d at 457. In any case, that

information was not provided to trial counsel at a time when he could consider its

implications for a potential speedy-trial defense. The record supports the trial

court’s conclusion that trial counsel’s investigation of the facts was within the

standard of “prevailing professional norms.” See Ellis, 233 S.W.3d at 330. To

require counsel to have searched for the specific, hard-to-find documents that

would contradict his client’s own statements would be to judge him on the basis of

hindsight rather than whether he provided reasonably competent assistance. See

id.; Woods, 176 S.W.3d at 226.

      Aguirre also argues that because trial counsel did not research the law

regarding the speedy-trial right in connection with this specific case, his strategic

decision was unsound because it was not based on a firm grasp of the law. During

the hearing, trial counsel was asked if he had read several cases relating to the

speedy-trial right; trial counsel stated that he had read only Barker v. Wingo. The

trial court found that this, combined with trial counsel’s knowledge of the facts,



                                         13
was sufficient for him to make a strategic decision based on the Barker factors. See

Barker, 407 U.S. at 530–32, 92 S. Ct. 2182 at 2192–93. Because the Barker factors

control the analysis, a “reasonable view of the record could support the trial court’s

ruling” that trial counsel performed a sufficient legal and factual investigation, and

thus, the court did not abuse its discretion. Riley, 378 S.W.3d at 457; Lopez, 428

S.W.3d at 282.

      In sum, rather than a situation in which “no reasonable attorney would

pursue” the same strategic course as Aguirre’s trial counsel, the record supports the

trial court’s determination that the challenged omission in this case was “sound

trial strategy.” Ellis, 233 S.W.3d at 330–31. Viewing all evidence in favor of the

trial court’s ruling, we conclude that trial counsel’s decision not to pursue a

speedy-trial claim was a reasonable and valid legal strategy, and thus no basis for

an ineffective assistance claim. See id. at 330; Riley, 378 S.W.3d at 457. Aguirre

has not alleged any other reason for trial counsel’s ineffectiveness on appeal, and

he has not raised any other reason to reverse the lower court’s ruling on his motion

for new trial.

      We conclude that the trial court did not err by denying Aguirre’s motion for

new trial because Aguirre’s trial counsel was not deficient in his decision not to

litigate a speedy-trial claim. We overrule Aguirre’s argument on appeal.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

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




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