REVERSE and DISMISS; Opinion Filed August 27, 2012.




                                                In The
                                    C!tourt of Appeals
                         ll.ifth, iBi.strirt of Wexa.s at malla.s
                                        No. 05-10-01339-CR


                           MARCOS ANTONIO DELUNA, Appellant

                                                  V.
                               THE STATE OF TEXAS, Appellee


                       On Appeal from the Criminal District Court No. 3
                                    Dallas County, Texas
                             Trial Court Cause No. F-0272113-J


                                            OPINION
                            Before Justices O'Neill, Richter, and Francis
                                    Opinion By Justice O'Neill

        Appellant Marcos Antonio Deluna appeals his conviction for indecency with a child. After

finding appellant guilty, the trial court assessed punishment at fifteen years' confinement. In a single

issue, appellant contends the trial court should have dismissed the indictment against him because

his Sixth Amendment right to a speedy trial was violated. For the following reasons, we reverse

appellant's conviction and dismiss the indictment.

        In April2002, the child reported to police appellant committed the offense. An arrest warrant

issued on May 2, 2002 and the grand jury indicted appellant on May 28, 2002. Appellant, however,

was not arrested for the offense until" April 16, 20 I 0, roughly eight years after his indictment. The

case proceeded to trial about five months later. At that time, appellant filed a motion to dismiss for
violation of his right to a speedy trial. The trial court considered the motion to dismiss at the same

time as it considered guilt/innocence. After hearing the evidence, the trial court denied the motion

to dismiss and found appellant guilty.

       In a single issue, appellant contends he was denied his constitutional right to a speedy trial.

He asserts the eight-year delay between the time he was indicted and the time he was arrested was

unreasonable and the State failed to justify it. He asserts the extraordinary delay establishes

presumed prejudice and further claims actual prejudice in that he suffered memory loss and was

unable to find some witnesses.

       The Sixth Amendment to the United States Constitution guarantees an accused the right to

a speedy trial. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). In determining

whether a defendant was denied his right to a speedy trial, we must balance four factors: (1) the

length of the delay, (2) the State's reasons for the delay, (3) the defendant's assertion of the right,

and (4) the prejudice to the defendant. Barker v. Wingo, 401 U.S. 514, 530 (1972). A speedy trial

analysis is not triggered by a set time element, but generally delays that approach one year are

"presumptively prejudicial" and sufficient to trigger further analysis. See Doggett v. United States,

505 U.S. 647,652 n.l (1992).

        In conducting our analysis, we balance the State's conduct against the defendant's and

consider the four factors together, along with any other relevant circumstances. Barker, 401 U.S. at

530, 533. While the State has the burden to justify the length of delay, the defendant has the burden

to show assertion of the right and prejudice. Cantu, 253 S.W.3d at 280. The defendant's burden of

proof on the latter two factors "varies inversely" with the State's degree of culpability for the delay.

Id. 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.

/d. at 280-81.

        We review a trial court's speedy trial decision under a bifurcated standard of review; an abuse
of discretion for factual components and a de novo standard for legal components. Cantu, 253

S.W.3d at 281; Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). In reviewing

factual issues, we defer to a trial court's resolution of "disputed facts," and its right to draw

"reasonable inferences" from those facts. I d. As trier of fact, a trial court is the sole judge of the

credibility of the witnesses, and may disbelieve any evidence so long as there is a reasonable basis

for doing so. Cantu, 253 S.W.3d at 282.

        We will begin first with the State's response to appellant's complaint. The State has done

little to attempt to justify the trial court's ruling on the merits, instead devoting almost the entirety

of its briefing to its assertion that our review of the trial court's ruling is premature. Specifically,

it asserts we should first abate this appeal and order the trial court to enter findings of fact and

conclusions oflaw. It relies on two cases in which the State, as the appellant, wanted such findings

to avoid the appellate presumption that the trial court made all implicit findings of fact that support

its ruling. See State v. Cullen, 195 S.W.3d 696,699 (Tex. 2006); State v. Elias, 339 S.W.3d 667,

676 (Tex. Crim. App. 20 12).         Here, neither appellant, as the losing party, nor the State

(understandably) requested any findings of fact and conclusions of law.

        We are somewhat perplexed by the State's position. Findings of fact and conclusion of law

are intended to assist the losing party, by allowing it to avoid the presumption that the trial court

made all disputed factual findings in support of its decision. See State v. Ross, 32 S.W.3d 853, 855

{Tex. Crim. App. 2000). Appellant did not request the trial court to make findings and he has not

requested this court to abate for more specific findings. The consequence is that we will presume

the trial court made all necessary fact findings that support its ruling, provided however that those

findings are supported by the record. Ross, 32 S.W.3d at 855-56.

        The State next asserts that without findings of fact and conclusions of law the record is not

adequate to review appellant's complaint. It relies on Davis v. State, 345 S.W.3d 71,77-78 {Tex.

Crim. App. 20ll)andNewman v. State,331 S.W.3d447,449-50(Tex. Crim. App. 2011). However,
in both cases, the record did not include a reporter's record of proceedings the appellate court was

asked to review. It was thus impossible for the court of appeals to review the trial court's decision.

According to the State, without adequate findings of fact and conclusion of law, this Court cannot

"meaningfully review" the trial court's ruling. We cannot agree. While complete express fact

findings may be helpful, they are certainly not necessary to our review. See, e.g,, Zamorano, 84

S.W.3d at 648; State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

       Finally, in the alternative, in its closing two paragraphs, the State summarily argues that if

we do not abate this appeal, we should affirm because the trial court could have found, and there was

evidence to show, appellant had "evaded" and was thus at fault for some or all of the delay and

appellant has not shown prejudice. We will consider these arguments in our Barker analysis.

l. Length of the Delay

       The length of the delay is the triggering mechanism for speedy trial analysis. Here, appellant

showed an eight-year delay between the time he was indicted and the time of his arrest. This delay

is not only sufficient to trigger speedy trial analysis, but the United States Supreme Court has

described a similar delay as "extraordinary." See Doggett, 505 U.S. at 652. And the Court of

Criminal Appeals has described a much shorter delay as "patently excessive." See Dragoo v. State,

96 S.W.3d 308, 315 (Tex. Crim. App. 2003) (three-and-a-half year delay). This factor weighs

heavily against the State. See Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim. App. 2002).

2. Reasons for the Delay

        Because the delay in this case was "presumptively prejudicial" it was incumbent upon the

State to justify the delay. Under the factual circumstances of this case, the State was required to

explain why it failed to arrest appellant for eight years.   However, the State did not present any

evidence that from 2002 until 2010 that ( 1) it ever attempted to serve the warrant, (2) it could not

serve the warrant because it did not know where appellant was, (3) it put the warrant in any type of

data base, or (4) it made any efforts to locate appellant. Moreover, the record shows appellant was
arrested in Dallas County in 2008 for cocaine possession. After he was bonded out, appellant was

again arrested in Oklahoma as a "fugitive from justice" on the possession charge, returned to Dallas

County, and served six months for that offense. Yet, both times the State had appellant in custody,

it failed to arrest him on the indecency charge or otherwise proceed with the case. Only after

appellant was released from custody for the possession case - on April 16, 20 l 0 - was appellant

finally arrested for the indecency case.

        Despite its failure to present any evidence of its efforts to apprehend appellant, the State

asserts there is evidence appellant was intentionally "evading." First, it relies on evidence appellant

moved after he was accused of the offense. The evidence at trial showed that at the time he was

accused of the offense, appellant was living with the child's grandmother in the same house as the

child. After he was accused, appellant moved and neither the child, nor the child's mother ever saw

him again. The child's mother testified that after they reported the offense to CPS and to police and

the child was interviewed by the Child Advocacy Center, they "never heard nothing from nobody."

She testified she never saw appellant again, and "thought he had just fled." She said she had "no

idea" whether appellant was in Dallas. When asked whether she knew if her mother or anyone else

continued to see appellant or members of his family, she responded, ·~o, I don't- not that I know."

        Appellant testified that, except for the trip to Oklahoma, he has been living and working in

Dallas since the offense. When he heard the child had accused him of the offense, he and her

grandmother broke up and he moved out. After that, he sometimes lived with his brother and

sometimes with his father. Appellant testified the child's family knew he was in Dallas and he had

seen the child's grandmother over the years because he had worked for one of her sisters. Although

he said he "knew" police were looking for him in 2002 after the offense, and there was an arrest

warrant out for him, he did not believe it; he stated he had been stopped by police several times over

the years, but he was never arrested.

        As noted above, it is the State's burden to justify the delay. The State maintains it did so with
evidence appellant was responsible for the delay. First, the State asserts there was evidence appellant

was "evading." We cannot agree with the State that evidence appellant moved out of a house where

the victim lived raises an inference of evading detention. 1 Further, the fact the warrant did not have

appellant's address after he moved does not alone justify its failure to apprehend appellant for the

following eight years. The State suggests it could not have located appellant even if it had tried.

While appellant admitted he was not a legal resident of Dallas, he had nevertheless resided in Dallas

for over twenty years. In fact, appellant had lived with the victim's grandmother for between nine

and eleven years before the offense and their families were acquainted. Yet the State did not present

any evidence that it attempted to utilize any of these connections to locate appellant. Indeed, the

child's mother testified that after the offense was reported, they never heard anything more. We

conclude the State has not shown they could not have located appellant. See Guajaro v. State, 999

S.W.2d 566,569-70 {Tex. App.-Houston [14th Dist.] 1999, pet. refd) (delay caused by police's

gross negligence in attempting to locate appellant weighs heavily against the State).

          Additionally, it is undisputed appellant was in custody twice on an unrelated charge. The

State attempts to fault appellant for its failure to arrest appellant on those occasions. It asserts there

is evidence that appellant was not arrested then because he intentionally gave a false birthdate when

he was booked-in.              At trial, appellant testified "they" had an incorrect birthdate "in the system"

when he was booked into Lew Sterrett, which would have been in late 2009. The birthdate that was

"in the system" was 12/24/1955, but appellant's actual birthdate is 12/27/1955.                                                            While

acknowledging this could have been a typographical error, the State urges the trial court could have

reasonably determined appellant fabricated his birthdate to avoid detection. There is nothing in the

record to show where "in the system" the birthdate appeared or that appellant's birthdate was self-

reported. While a trial court may make reasonable inferences from the evidence, such inferences



     1 Indeed, it is not even clear appellant could have stayed at the house. The child's mother testified after the offense, she moved out and would
not return until the maner was "resolved." She and her daughter returned two weeks later and appellant was gone.
-~-,.-----~---_-:::--:---   ~--~~--   ----   ---




                must be supported by evidence. 2 See Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007).

                            The record does show appellant was a fugitive from justice after his release on bond on the

                possession charges. Appellant was released on December 27,2008 and arrested on October 20, 2009

                in Oklahoma for failing to appear at a court date. Although appellant claimed he was only in

                Oklahoma for one day, the trial court was not required to believe that testimony. But even if

                app_ellant was to blame for the entire portion of this delay, it accounts for only l 0 months of the

                eight-year delay.

                            Finally, we reiterate that it was the State's burden to not only to justify the delay, but also to

                bring appellant to trial. Yet it chose not to show what, if any, efforts it made to locate or arrest

                appellant. We conclude the State not only failed to justify the delay, but that the record shows the

                State's neglect. Because the delay was so lengthy, this factor weighs heavily against the State. See

                Doggett, 505 U.S. at 657; Orand, 254 S.W.3d 560, 567 (Tex. App.-Fort Worth 2008, pet. refd).

                3. Assertion of Right

                            Although it is the State's duty to bring a defendant to trial, a defendant still has some

                responsibility to assert his right to a speedy trial. Cantu, 253 S.W.3d at 283. Filing for dismissal

                instead of a speedy trial will generally weaken a speedy-trial claim because it shows a desire to have

                no trial instead of a speedy one. /d. If a defendant fails to first seek a speedy trial before seeking

                dismissal of the charges, he should provide cogent reasons for doing so. !d.

                            Although there was evidence appellant had heard- sometime in 2002- that police had a

                warrant for his arrest, appellant testified he was stopped by police several times, but was not arrested.

                The only objective evidence on this issue tends to support this testimony. Specifically, appellant was

                actually arrested twice in 2008 on unrelated charges, but he was not arrested for this offense. It was



                    2 Additionally, the State's theory that the binhdate error shows appellant was "evading" is not supported by the record as a whole~ Under the
                State's theory. appellant intentionally gave a false birthdate in 2008 so authorities would not discover the 2002 warrant. However, the 2002 warrant
                contains the same binhdate error~ Therefore, the error cannot support an inference appellant was avoiding detention. Funher, the indictment in this
                case, containing the I 2fl411955 binhdate, alleged a prior conviction containing the I 2fl711955 binhdate. Thus, both dates ofbinh were connected
                to appellant's file since 2002. Thus, this error does not explain the delay in this case, much less allow it to be attributed to appellant.
reasonable for appellant to believe there was not a warrant for his arrest under these circumstances.

Further, there is no evidence that appellant knew he had been indicted for the offense and thus that

there was a pending case against him. Indeed, neither the victim nor the victim's mother knew there

was a case.

       When appellant was finally arrested on these charges on April 16, 2010, he was first

appointed counsel. That counsel did not speak Spanish and another counsel was appointed on May

l 0, 2010. After that time, appellant did not request any continuances, and the case proceeded to trial

four months later. On the day of trial, appellant asserted his right to a speedy trial had been violated

and sought dismissal of the charges. By the time appellant was finally arrested and notified of the

indictment and the specific charges against him, eight years had already passed from the time of the

offense. At that time, it was too late for appellant to obtain a "speedy trial." We conclude the record

provides cogent reasons for why appellant sought a dismissal before seeking a speedy trial.

        Even if we were to conclude that appellant could have more effectively asserted his right by

first determining definitively if there was a warrant out for his arrest, then turning himself in, and

then demanding his right to a speedy trial, we would not weigh his failure to do so heavily against

him. Rather, because appellant did not know there was an indictment against him, was not

represented by counsel, and had not been notified of his right to a speedy trial, this factor would

weigh against him only slightly. See Barker, 407 U.S. at 528 (rejecting demand-waiver rule in favor

of less rigid approach because among other things, it allows trial courts to consider whether

defendant was represented by counsel during the period he failed to obtain a speedy trial); see also

Dragoo, 96 S. W.3d at 315 (Tex. Crim. App. 2003) (weighing appellant's acquiescence to three-and-

a-halfyear delay heavily against him because, although represented by counsel at all relevant times,

he failed to prove his alleged reasons for such acquiescence).

4. Prejudice Caused by the Delay
          The last Barker factor is "prejudice to the defendant" resulting from the delay. Barker, 407

U.S. at 432-33. Prejudice to the defendant is assessed in light of the interests a right to a speedy trial

is designed to protect: ( l) preventing oppressive pretrial incarceration, (2) minimizing the anxiety

and concern of the accused, and (3) limiting the possibility that the defense will be impaired.

Munoz, 991 S.W.2d at 826. Of these interests, the most important is protecting a defendant's ability

to adequately prepare his case. Barker, 407 U.S. at 532-33.

          Impairment of one's defense is the most difficult form of speedy trial prejudice to prove

because time's erosion of exculpatory evidence and testimony can rarely be shown. Barker, 407

U.S. at 532. The possibility that the accused's defense will be impaired by dimming memories and

loss of exculpatory evidence is the most serious interest that the right to speedy trial protects because

the inability of a defendant to adequately prepare his case skews the fairness of the entire system.

Doggett, 505 U.S. at 654. Affirmative evidence of particularized prejudice is not essential to every

speedy trial claim because excessive delay presumptively compromises the reliability of a trial in

ways that neither party can prove or even identify. /d. at 655. And the presumption of prejudice

grows and intensifies over time. /d. at 656. However, the presumption of prejudice to a defendant's

ability to defend himself can be "extenuated ... by the defendant's acquiescence" in the delay. Id.

at 658.

          Here, the State relied entirely on the testimony of the child and her mother to prove its

allegations. Without question, such evidence is not only sufficient to support a conviction, it is

generally the most powerful and probative evidence available. Nevertheless, such testimony is

dependent entirely on the memories of the witnesses. Appellant's defense was likewise dependent

on his being able to effectively cross-examine the witnesses with respect to their eight-year-old

memories and eight-year-old details. We conclude the delay in this case, which the State failed to

justify, made it virtually impossible for appellant to conduct effective cross-examination. See Orand,

254 S.W.3d at 570. ("the passage of time rendered the credibility of the State's witnesses concrete,
exempt from the testing fire of cross-examination planned after detailed witness interviews and

extensive defense investigation.") /d. at 570.

        Weighing all the Barker factors, we conclude appellant was denied his constitutional right

to a speedy trial. The factor we find most significant in this case, and that affects our view of all the

other factors, is the sheer length of the delay. The State has not attempted to directly justify this

delay. Instead, it asks that we rely on unsupportable inferences to blame appellant for the State's

failure to find appellant, when there is nothing in the record to show they were attempting to find

him. We recognize the motion to dismiss was filed on the day of trial, and the State was perhaps not

prepared to respond to it. But appellant established a significant delay necessitating explanation.

The State did not object or ask for time to respond to the motion. We will not presume the State

could have justified the delay had it chosen to do so. ln Doggettt, the United State's Supreme Court

stated, "[ w ]hen the Government's negligence ... causes delay six times as long as that generally

sufficient to trigger judicial review ... and when the presumption of prejudice, albeit unspecified,

is neither extenuated, as by the defendant's acquiescence, nor persuasively rebutted, the defendant

is entitled to relief." See Doggett, 505 U.S. at 657. We likewise conclude appellant is entitled to

relief. We sustain appellant's sole issue, reverse his conviction, and order th     dictment dismissed.




Do Not Publish
TEX. R. APP. P. 47
l01339F.U05
-·--::~-=---   ---··-------~-~----~-




                                                 C!rourt of Appeals
                                       ltifth, sistrict of Wexas at sallas

                                                 JUDGMENT
   MARCOS ANTONIO DELUNA, Appellant                        Appeal from the Criminal District Court No.
                                                           3 of Dallas County, Texas. (Tr.Ct.No. F-
   No. 05-10-01339-CR                      V.              0272113-J).
                                                           Opinion delivered by Justice O'Neill,
   THE STATE OF TEXAS, Appellee                            Justices Richter and Francis participating.


       Based on the Court's opinion of this date, we REVERSE appellant's conviction and
   ORDER the indictment is dismissed.


   Judgment entered August 27, 2012.
