Reversed and Remanded and Memorandum Opinion filed July 16, 2013.




                                     In The

                     Fourteenth Court of Appeals

                              NO. 14-12-00800-CR

                       THE STATE OF TEXAS, Appellant

                                        V.
                       OLLIE JAMES FORD, JR., Appellee

                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1268175

                                OPINION

      Appellee Ollie James Ford, Jr., was indicted on July 20, 2010, for the felony
offense of aggravated sexual assault of a child that allegedly occurred on or about
November 22, 1995.       Appellee filed a motion to dismiss the indictment for
prosecutorial delay of more than fourteen years between the alleged offense and
the indictment.   Following an evidentiary hearing, the trial court granted the
motion to dismiss.     The State of Texas now appeals the trial court’s order
dismissing the case.    Because there is no evidence that the delay was used
intentionally to gain a tactical advantage over appellee or for some other improper
purpose, we reverse the trial court’s order and remand for further proceedings in
accordance with this opinion.

                                        BACKGROUND

       On July 20, 2010, a grand jury indicted appellee for the aggravated sexual
assault of A.R. The sexual assault allegedly occurred on November 22, 1995,
when A.R. was seven years old. After he was indicted, appellee filed a motion to
dismiss the indictment, arguing that the State violated his due process rights when
it waited more than fourteen years to indict him. See U.S. CONST. amend. V, XIV.
Appellee also alleged that his right to a speedy trial had been violated. U.S.
CONST. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05
(West 2005). During the ensuing evidentiary hearing, five witnesses testified: two
records clerks from local medical facilities, the two investigating Baytown police
officers, and the former Harris County prosecutor who accepted charges in 2010.1

       Baytown police officer Brian Thompson testified that he was assigned to the
case in late December 1995, when he was a new detective, after Child Protective
Services (C.P.S.) referred the case to the police. Thompson learned from the
C.P.S. referral that A.R.’s aunt had observed blisters on A.R.’s lower back and
rectum area and had taken her to San Jacinto Methodist Hospital as a result. A.R.
was diagnosed with syphilis. Thompson also learned that A.R. had reported being
sexually abused by people either living in or visiting her mother’s house.

       In early January 1996, Thompson travelled to Wallisville where he initially
met with A.R. During that meeting, he presented A.R. with four separate photo

       1
         The two records clerks who testified were from San Jacinto Methodist Hospital and
Harris County Public Health and Environmental Services. Both testified they were unable to
locate any records related to either A.R. or appellee for the 1995 to 1996 time period. The Harris
County records clerk testified she did determine that a record for appellee had been opened in
1993 and closed in 1996, but the record itself had been purged and destroyed in March of 2001.

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spreads that each included a photograph of a different male individual who had
access to A.R.’s home on Elm Street in Baytown (“Elm Street House”): Toby
Wright Moore, John Brinkley, Tony Cazares, and appellee. A.R. identified all four
individuals as friends of the family. A.R. specifically identified Moore as her
sister’s boyfriend. She also told Thompson that neither Moore nor Brinkley had
hurt her.

      After she identified Cazares and appellee in the photo spreads, A.R. was
referred to Texas Children’s Hospital where she participated in a video forensic
interview. Thompson testified he observed a portion of A.R.’s interview while it
was occurring, and eventually viewed the complete interview on videotape. In the
interview, A.R. disclosed that two people, Cazares and appellee, had sexually
assaulted her by placing their sexual organs in her rectum.          According to
Thompson, Cazares was A.R.’s mother’s boyfriend and lived in the Elm Street
House with A.R. and her mother. Thompson also learned that appellee was a
friend of Cazares and that he frequently visited the Elm Street House. In addition,
Thompson learned that A.R. had reported the sexual abuse to her mother and her
sister, but neither believed her.

      Thompson continued his investigation by conducting interviews with some
of the people A.R. identified as living in the Elm Street House. Thompson first
interviewed A.R.’s mother. During that interview, she denied A.R. had told her
that she had been sexually assaulted. Thompson also interviewed A.R.’s sister,
who told Thompson she was not aware of any sexual abuse of A.R. Thompson
then interviewed Brinkley, who denied any knowledge of sexual abuse occurring
in the house. Finally, Thompson interviewed Cazares, who denied that he had
sexually assaulted A.R.

      All of the people associated with the Elm Street House agreed to be tested

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for syphilis. Thompson testified that, with the exception of Brinkley, each person
directly told him they had been tested for syphilis and the results were negative.
Thompson testified that he learned the testing had been performed at the Harris
County Health Clinic. Thompson then contacted the clinic by telephone and was
told that the clinic does not obtain the patient’s name but instead assigns a number
to each patient. Thompson learned that a patient could obtain his or her test results
only by using the assigned number. Thompson testified that, as a result of this
telephone conversation, he assumed he could not obtain the testing records with the
information that he had because the clinic did not keep the test results. Thompson
admitted that he did not ask the people associated with the Elm Street House for
their patient numbers nor did he ask the clinic if there was any way to substantiate
their claims that they had been tested for syphilis and that the results were
negative.

      Thompson also made contact with C.P.S. worker Katie Deal as part of his
investigation. According to Thompson, Deal forwarded medical confirmation that
A.R. had syphilis. Thompson testified that Deal also told him that the Elm Street
House residents had completed sexually-transmitted-disease testing and the test
results would be forwarded to him. Thompson eventually learned that C.P.S. never
obtained those test results.

      In a second interview, A.R.’s mother told Thompson that she had heard that
appellee “had slept with another young girl who was related to an individual who
owned a balloon shop in Baytown.” The balloon shop owner eventually told
Thompson that he had contracted syphilis from appellee through anal intercourse.

      Thompson finally talked to appellee on February 9, 1996. During the initial
interview, appellee told Thompson he knew he was being accused of touching a
little girl and giving her a sexually transmitted disease. Appellee denied the

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accusation. According to Thompson, appellee then pulled out a card from the
Houston Health Clinic.          Appellee told Thompson that he had been tested.
Thompson admitted during the hearing that he did not attempt to obtain any
medical records related to appellee’s alleged testing at the Houston Health Clinic.
Thompson also admitted that he did not take possession of appellee’s card or make
a copy of the card. Thompson did ask appellee to come to the police station to
give a statement, which appellee did later that same afternoon. Thompson was
then asked where appellee’s statement was presently located. Thompson admitted
he did not know. Thompson also admitted that all of the statements he took as part
of his investigation, and in fact his entire investigation file, were now missing.

       On February 20, 1996, appellee returned to the police station where he took
a polygraph examination. According to Thompson’s police report, the polygraph
examiner informed him that, in the examiner’s opinion, appellee “had not been
completely truthful with [Thompson] during [the] initial interview or in reference
to the polygraph exam.” The actual polygraph examination results are missing.

       Thompson acknowledged during the hearing that appellee’s polygraph
examination was the last action he took in his investigation of the case. Thompson
set the investigation aside at that point because he believed he had exhausted all
investigative steps and still did not have enough evidence to arrest appellee.2
Thompson’s decision to set the investigation aside was based, at least in part, on
his belief that he needed a corroborating witness.3 Thompson denied that delaying


       2
          Thompson did admit that, in hindsight and with the knowledge gained as a result of
many years of experience, he believes he should have contacted the district attorney’s office for
guidance. Thompson also admitted that he now believes his 1996 investigation uncovered
sufficient evidence to establish there was probable cause to arrest appellee at that time.
       3
         Thompson believed he needed a corroborating witness because he was concerned about
A.R.’s credibility. A.R. had talked during her video interview about events that Thompson
learned had not actually occurred. Specifically, A.R. had mentioned that there had been a fire at
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the case was an effort to punish appellee or to gain a tactical advantage over him,
and testified instead that the decision resulted from his inexperience as a new
detective in 1996. The case then sat dormant for seven years. On September 29,
2003, in response to pressure from his superiors to clear out old cases that were no
longer being actively investigated, Thompson deactivated the case.                  When he
deactivated the case, Thompson turned the entire file over to the Records Division
for storage.

       In early 2010, a now-adult A.R. contacted the Harris County District
Attorney’s office to inquire why her case had never been prosecuted. The District
Attorney’s office referred A.R. to the Baytown Police Department. A.R. spoke
with Detective David Harrison at the Baytown Police Department. In response to
A.R.’s call, Harrison reviewed A.R.’s forensic interview video, Thompson’s
original investigation police report, and he also spoke directly with Thompson
about his investigation. Harrison asked Thompson about the lack of medical
records attached to the case and Thompson said he had had trouble obtaining
medical records from C.P.S. Harrison worked on the case between January 21 and
June 24, 2010, without uncovering any evidence that was not known in 1996, when
Thompson set the investigation aside. Harrison then presented the case to Darin
Darby, a Harris County child-abuse prosecutor, who accepted charges because he
believed there was probable cause to file the case against appellee.

       At the conclusion of the evidentiary hearing, the trial judge provided an
explanation for his decision to grant appellee’s motion to dismiss. The judge
determined that Thompson “intentionally stopped the investigation . . . at a point

the Elm Street House a few days before her interview and her brother had died in the fire.
Thompson’s concern grew out of the fact that A.R.’s mother denied there had been a fire at the
Elm Street House and the mother’s admission that she had had a second child, but had given that
child up for adoption.

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where he could have obtained [appellee’s] test results that would have exculpated
[appellee].”   The judge also stated that he found not credible Thompson’s
testimony that Thompson did not believe he had probable cause in 1996. In
particular, the judge stated that he did not believe Thompson’s testimony was
credible that he could not obtain the syphilis testing medical records because the
clinics used numbers rather than names.        The judge also made the following
pronouncement:

      Thompson, although he stated he was presented with a card, he never
      goes any further than stating that he was presented with the card and
      specifically did not expand on that conversation, that [appellee] in
      handing him the card maintained his innocence and maintained that
      . . . the results were negative. I don’t find that testimony at all
      credible either, or the lack thereof, I don’t find that credible. I believe
      based on the testimony I heard that he was made fully aware not only
      that [appellee] had been tested, but that [appellee] had said, “I’m
      negative.”
The trial judge then found that Thompson “intentionally fail[ing] to obtain the
results of [appellee’s] testing amounts to an actual and substantial prejudice to the
Defense in this case.”

      The trial judge then turned his attention to Harrison. The judge found that
“Harrison’s testimony is completely void of any credibility, not deserving of any
weight whatsoever.” Finally, the judge stated that he found “the officers in this
case did act in bad faith or intentionally in order to gain a tactical advantage over
the defendant in order to secure formal charges and with the specific intent to
obtain a conviction and a sentence in this case.” No written findings of fact and
conclusions of law were requested or signed in the case. This appeal followed.

                                      ANALYSIS

      In a single issue on appeal, the State contends the trial court abused its

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discretion when it granted appellee’s motion to dismiss the indictment. The State
goes on to argue that appellee failed to meet his burden to provide evidence that
the “State intentionally delayed this prosecution to gain a tactical advantage.” We
agree with the State.

      We apply a bifurcated standard of review when considering a trial court’s
decision to dismiss a case. State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex.
Crim. App. 2011). We give almost total deference to a trial court’s findings of fact
that are supported by the record, as well as any mixed questions of law and fact
that rely upon the credibility of witnesses. Id. But when resolution of the case
turns solely on questions of law or mixed questions that do not depend on
credibility determinations, our review is de novo. Id.

      Statutes of limitations are citizens’ primary protection from prosecution for
unduly stale criminal charges. Ibarra v. State, 11 S.W.3d 189, 193 (Tex. Crim.
App. 1999) (citing United States v. Marion, 404 U.S. 307, 322 (1971)). There is
no statute of limitations for the offense at issue in this case. Tex. Code Crim. Proc.
Ann. art. 12.01(1)(B) (West 2005 & Supp. 2012). The Due Process Clause of the
United States Constitution provides additional, if limited, protection of an accused
from “oppressive delay.” Krizan-Wilson, 354 S.W.3d at 814. Although we assess
pre-indictment delay on a case-by-case basis, the Court of Criminal Appeals has
instructed that proof of prejudice is a necessary but not sufficient element of a due-
process claim, and that the due-process inquiry must consider the reasons for the
delay. Id.

      A defendant is entitled to relief for pre-indictment delay under the Due
Process Clause when he can show 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 or for some other bad-faith purpose. Id. at 814–15

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(citing Ibarra, 11 S.W.3d at 193). There must be proof of both elements. Id. at
814.   In addition, because the State is not required to conduct a continuous
investigation and is also not required to file charges as soon as probable cause
exists but before the State is satisfied the State will be able to establish a suspect’s
guilt beyond a reasonable doubt, we may not infer bad faith from the existence of
delay and prejudice. Id. at 814, 818–19. Appellee had the burden to prove that the
State’s delay was an intentional device used to gain a tactical advantage or for
some other improper purpose. Id. at 816. It is not enough for appellee to argue
that the trial court may have disbelieved each and every witness who testified that
the State had no negative intentions for the delay; he was required to present
positive proof of such improper purpose. Id.

       Assuming without deciding appellee established the first element, we turn to
the second. After a review of the record, which is summarized above, we conclude
there is no evidence that the pre-indictment delay was intended to gain a tactical
advantage over appellee or for some other bad-faith purpose. At most, appellee
presented evidence that the pre-indictment delay was the result of inadequate
police work by Thompson, an inexperienced detective in 1996, not an effort on his
part to gain a tactical advantage or for some other improper purpose. See State v.
Krizan-Wilson, 321 S.W.3d 619, 626 (Tex. App.—Houston [14th Dist.] 2010),
aff’d, 354 S.W.3d 808 (Tex. Crim. App. 2011) (holding there was no evidence that
the pre-indictment delay was intended to gain a tactical advantage or other
improper purpose, but instead the only evidence indicated the delay was the result
of a belief by investigators that the case was not winnable).

       Our conclusion is supported by Thompson’s decision to deactivate the case
in 2003, two years after the evidence indicates the syphilis testing medical records
had been destroyed. If Thompson’s intent had been to prejudice appellee by

                                           9
waiting for potentially favorable evidence to disappear, he would have reopened
the case at that point, not deactivated it.         Moreover, undisputed evidence
establishes that the only reason the police reopened the investigation in 2010 was
the complainant contacted the police to ask why no one had ever been prosecuted.
The evidence is also undisputed that, once the case was reopened, there were no
further delays in the investigation.

      The trial judge’s on-the-record explanation for his ruling does not change
our analysis. Even if we disbelieve both investigating detectives’ testimony that
the investigation was not delayed for an improper purpose, this disbelief cannot
substitute for positive evidence that the delay was for an improper purpose. See
Krizan-Wilson, 354 S.W.3d at 816 (“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 intention for the delay, appellee must still present positive proof of
such an improper purpose.”).           The same principle applies if we disbelieve
Thompson’s testimony that he did not think he had probable cause to file charges
in 1996, because there is no requirement that investigators must press charges as
soon as they have probable cause.          Id. at 819.   With respect to Harrison’s
testimony, even though the trial judge found it devoid of credibility and it is
undisputed that his investigation turned up no new evidence, there is still no
positive proof that the delay was for an improper purpose. See Krizan-Wilson, 321
S.W.3d at 626 (holding that the fact a later prosecutor decided to pursue the case
even though no new evidence had been revealed during the twenty-three year delay
is not evidence of improper purpose). Finally, the trial judge’s announced belief
that Thompson was made fully aware not only that appellee had been tested, but
also that the results of that test had been negative, cannot support the order of
dismissal because there is no evidence in the record to support that belief. A


                                            10
determination that Thompson was not a credible witness cannot create evidence.
No such evidence is found in the record.

       Because there is no evidence that the pre-indictment delay was used
intentionally to gain a tactical advantage over appellee or for some other improper
purpose, we hold the trial court erred in dismissing the indictment based on the
delay.4 See Krizan-Wilson, 354 S.W.3d at 819–20. We sustain the State’s single
issue on appeal.

                                        CONCLUSION

       Having sustained the State’s issue on appeal, we reverse the trial court’s
order of dismissal and remand for further proceedings in accordance with this
opinion.



                                            /s/     J. Brett Busby
                                                    Justice


Panel consists of Justices Frost, Brown, and Busby.
Publish—Tex. R. App. P. 47.2(b).


       4
          Appellee’s motion to dismiss the indictment also included a ground asserting that his
right to a speedy trial under the Sixth Amendment had been violated as a result of the fourteen-
year pre-indictment delay. The trial court’s order granted appellee’s motion without specifying a
ground. The State did not address the speedy-trial ground in its appellate brief and appellee did
not file an appellate brief. We conclude the State was not obligated to address the speedy trial
ground because the evidentiary hearing and the trial court’s explanation of its ruling focused
exclusively on appellee’s Due Process Clause pre-indictment delay claim. See State v. White,
306 S.W.3d 753, 760 (Tex. Crim. App. 2010) (“Under these circumstances, the State could have
reasonably concluded that the trial court’s order granting White’s motion to dismiss was based
only on the constitutional guarantees of due process and due course of law. Given that fact, the
State, on appeal, was not obligated to argue why the trial court’s order could not have been
proper under the Sixth Amendment speedy trial guarantee, and the court of appeals erred in
holding otherwise.”). Accordingly, we express no view on appellee’s speedy-trial claim.

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