             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-1313-13



                              LIONEL GONZALES, Appellant

                                                  v.

                                   THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FOURTH COURT OF APPEALS
                             BEXAR COUNTY

               K ELLER, P.J., filed a dissenting opinion.


       Appellant claims that he was unaware of the pending indictment until he was arrested.1 Let

us assume that is so. That fact would make this case like Doggett v. United States with one

significant exception. Doggett based his speedy-trial claim on the fact that the indictment against

him had been pending for over eight years. Had Doggett been indicted at the time he first became

aware of the prosecution (instead of eight years earlier), limitations would have expired. That is not



       1
          The Court acknowledges that, if a defendant is aware of an indictment for a significant
period of time before his arrest, his failure to assert his right to a speedy trial would weigh heavily
against him. See Doggett v. United States, 505 U.S. 647, 653 (1992).
                                                                      GONZALES DISSENT — 2

true in appellant’s case. In my view, one of the purposes of the speedy-trial guarantee is to protect

the defendant against “tolling abuse”—the use of a charging instrument to toll limitations when no

serious prosecution would otherwise be forthcoming until after limitations had expired. Because the

tolling-abuse rationale does not apply to this case, I dissent.

                                    A. Doggett and Limitations

       In Doggett v. United States, the defendant was arrested eight-and-a-half years after he was

indicted.2 This delay was not the result of nefarious maneuvering on the Government’s part, but the

Government had no good excuse for the delay.3 On the other hand, Doggett was not aware of the

indictment until he was arrested on it,4 and he was not able to show any specific prejudice resulting

from the delay in his trial.5 Nevertheless, the Supreme Court found that the long period of delay

gave rise to a presumption of prejudice—a presumption that the reliability of the trial had been

compromised.6 While a defendant’s failure to timely assert his right to a speedy trial would attenuate

this presumption, this did not occur in Doggett’s case because he was unaware of the pending

prosecution and therefore unaware of his need to assert his speedy-trial right.7 And because the

presumption of prejudice was not otherwise “persuasively rebutted,” Doggett was entitled to relief.8



       2
           505 U.S. at 648.
       3
           Id. at 653, 657.
       4
           Id.
       5
           Id. at 655.
       6
           Id. at 655-56.
       7
           Id. at 653-54, 658.
       8
           Id. at 658.
                                                                         GONZALES DISSENT — 3

        But what if Doggett had not been indicted until eight-and-a-half years later than he was? In

that scenario, he would not have had a meritorious speedy-trial claim because the speedy-trial

guarantee applies only to delay that occurs between the commencement of prosecution and the trial.9

For pre-indictment delay, the Constitution requires only that due process be satisfied.10 For a due-

process violation to occur, the record must show that: (1) the defendant suffered substantial actual

prejudice to his right to a fair trial, and (2) the State acted in bad faith.11 The facts in Doggett’s case

satisfied neither prong of the due-process test. Moreover, the length of delay in Doggett’s case

suggested the possibility of prejudice to his defense, but when there is pre-indictment delay, the

applicable statute of limitations provides the primary guarantee against the possibility of prejudice

from overly stale criminal charges.12

        In Doggett, the fact that the defendant had been indicted made all the difference in whether

he was entitled to relief, but why should the fact that a person has been indicted make such a

difference if he is completely unaware of the indictment’s existence? Because Doggett was not

aware of the indictment, he did not suffer from oppressive pretrial incarceration or from anxiety

stemming from the pendency of the charges.13 The only prejudice Doggett could claim was the


        9
           Id. at 655 (“the Sixth Amendment right of the accused to a speedy trial has no application
beyond the confines of a formal criminal prosecution”); United States v. Loud Hawk, 474 U.S. 302,
310-12 (1986) (period of time during which defendant was neither indicted, nor subject to arrest or
bail, is not considered in speedy-trial analysis).
        10
             United States v. Lovasco, 431 U.S. 783, 788-89 (1977).
        11
          State v. Krizan-Wilson, 354 S.W.3d 808, 814-15, 817 (Tex. Crim. App. 2011). See also
United States v. Crouch, 84 F.3d 1497 (5th Cir. 1996).
        12
             United States v. Marion, 404 U.S. 307, 322-23 (1971).
        13
             Doggett, 505 U.S. at 654.
                                                                         GONZALES DISSENT — 4

possibility that his defense was impaired,14 but that possibility existed regardless of when Doggett

was indicted. In his dissent in Doggett, Justice Thomas considered the question of why the

indictment matters when the defendant is unaware of it.15 Because Doggett was “blissfully unaware”

of his indictment during the period of delay, Justice Thomas concluded that he “suffered none of the

harms that the right [to a speedy trial] was designed to prevent.”16 But neither Justice Thomas nor

the Court majority in Doggett focused on the actual difference between Doggett’s case and that of

a defendant whose indictment issued eight-and-a-half-years later than Doggett’s did: limitations.

        Before the case reached the Supreme Court, when Doggett’s speedy-trial claim was rejected

by a two-to-one vote at the Eleventh Circuit, Judge Clark recognized the limitations issue in his

dissent.17 Judge Clark observed that the statute of limitations for Doggett’s offense was five years,

and that limitations would have expired if the indictment had been returned at the time Doggett

learned of it.18 While Judge Clark would not have found that fact to be conclusive of the speedy-trial

issue, he considered it to be “another factor” that should be taken into account.19

        In Texas, a charging instrument ordinarily tolls the running of limitations.20 Because of that

tolling, it is legitimate, I think, for the speedy-trial guarantee to take into account the interests that

        14
             Id. at 654-56.
        15
             Id. at 659-71 (Thomas, J., dissenting).
        16
             Id. at 659-60.
        17
             United States v. Doggett, 906 F.2d 573, 583 (11th Cir. 1990) (Clark, J., dissenting).
        18
             Id.
        19
             Id.
        20
         TEX . CODE CRIM . PROC. art. 12.05(b); Tita v. State, 267 S.W.3d 33, 37 (Tex. Crim.
App. 2008).
                                                                       GONZALES DISSENT — 5

a statute of limitations is designed to protect. If the charging instrument becomes a mere

placeholder, lying dormant for years, to the point where limitations would have otherwise expired

at the time the defendant first learns of its existence, then the purposes of the statute of limitations

have been undermined. Of course, the State is free to file a charging instrument on the last day of

the limitations period and even quick notice to the defendant could easily be outside the limitations

period, so the mere fact that notice to a defendant occurs outside the limitations period is not

dispositive. But the longer a charging instrument has lain dormant and the longer it has done so after

limitations would have expired, the stronger the inference ought to be that the statute of limitations

has been subverted. In Doggett, the defendant learned of his indictment for the first time at an arrest

that occurred at least three-and-a-half years after limitations would have expired if the indictment

had been returned at the time of arrest. I view Doggett’s presumption of prejudice from the passage

of time as implicitly based on the notion that the passage of time was significant enough to subvert

the purpose of the statute of limitations. This view would be consistent with the Supreme Court’s

pronouncement in Marion that the statute of limitations is the primary guarantee against the

possibility that the passage of time will impair the defendant’s ability to defend himself against the

accusation.21

        Why the applicable statute of limitations should matter in a speedy-trial analysis may be

illustrated by the following hypothetical: Andy and Bob commit an offense. Let us assume that the

limitations period for this offense is ten years. A month after the offense, the police learn about

Andy and Bob’s involvement. Six months after the offense, the State indicts Andy, but, for some

unknown reason, does not indict Bob. The prosecution file soon gets misplaced, resulting in the


        21
             See this opinion, footnote 12.
                                                                        GONZALES DISSENT — 6

State’s failure to notify Andy of the indictment and its failure to take any action on the case with

respect to Andy or Bob until the error is discovered six years after the offense. Six years and one

month after the offense, the State issues an indictment against Bob and, on the same day, arrests both

Andy and Bob. Andy was not aware of his indictment until his arrest. Both men go to trial two

months later. Let us finally assume that Andy and Bob cannot demonstrate any particularized

prejudice arising from the delay between the offense and their trial.

        Bob has no viable speedy-trial claim. He was tried a mere two months after he was indicted,

a period of time that does not even trigger a speedy-trial analysis.22 He also has no valid due-process

pre-indictment-delay claim because the record does not demonstrate that he suffered actual prejudice

or that the State acted in bad faith. Nor is his prosecution barred by the statute of limitations, which

is ten years. But if the Court’s reasoning in the present case is correct, Andy has a meritorious

speedy-trial claim—despite the fact that there is no practical difference between what the two men

suffered as a result of the State’s actions. Both men believed that no indictment was pending against

them (Bob was correct in this belief, while Andy was not) until they were arrested a little over six

years after the offense was committed.          Treating Andy and Bob differently under these

circumstances seems irrational. On this basis, I think it can be rationally said that, where limitations

would not be barred if the indictment were brought on the date of trial, and the defendant’s claim is

that he was unaware of the indictment for most of the relevant period of time, then the presumption

of prejudice has been “persuasively rebutted.”23


        22
             Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008).
        23
          See this opinion, footnote 8. I would not foreclose the possibility that the existence of the
charging instrument, and subsequent delay of trial, might produce an event that poses a risk of
prejudice to the defendant. If, for example, evidence was destroyed because an official believed that
                                                                       GONZALES DISSENT — 7

       Now let us assume that the limitations period for the above offense is five years. If the other

elements of the hypothetical remain the same, the following results: Bob has a viable limitations

claim because his indictment was returned outside the statute of limitations. Andy, however, does

not have a viable limitations claim because the issuance of his indictment tolled the statute of

limitations. But Andy certainly had reason to believe that limitations had expired when five years

passed without him being aware of any indictment. Andy has a substantial argument that, due to the

State’s failure to notify him and actively prosecute the case, he ought to be treated similarly to Bob.

That argument is not conclusive, since the State did exert at least some effort to prosecute Andy

before limitations had expired (returning an indictment), but, if I am correct, the limitations-evading

effect of the indictment is something that can be taken into account in a speedy-trial analysis.

                                 B. The Offense and Limitations

       The limitations period applicable to appellant’s injury-to-a-child offense is “ten years from

the 18th birthday of the victim.24 As the above discussion shows, the present case is not an instance

of tolling abuse. Had the State indicted appellant on the date that he was tried, nothing would have


the State’s failure to prosecute a pending indictment meant that the case was over (and such evidence
would not have been destroyed otherwise), then that might suffice to shift the balance of the speedy-
trial factors in the defendant’s favor.
       24
           The indicted offense was “intentionally or knowingly caus[ing] bodily injury” to a child,
a third-degree felony. TEX . PENAL CODE § 22.04(f) (West 2004) (last amended in 1999). When the
offense was committed, on November 27, 2002, it was subject to a five-year limitations period. TEX .
CODE CRIM . PROC. art. 12.01(4)(D) (West 2002). Effective September 1, 2007, the legislature
increased the limitations period to “ten years from the 18th birthday of the victim.” TEX . CODE CRIM .
PROC. art. 12.01(5)(C) (West 2008). The savings clause provides that the change in the law “does
not apply to an offense if the prosecution of that offense became barred by limitation before the
effective date of this Act.” Acts 2007, 80th Leg., ch. 841, § 2. Because appellant’s offense was not
barred by limitations when the amendment took effect, the new limitation period applies. We have
upheld the constitutionality of extending an unexpired period of limitations. Phillips v. State, 362
S.W.3d 606, 613 (Tex. Crim. App. 2011).
                                                                     GONZALES DISSENT — 8

barred the State from proceeding with the prosecution. Appellant’s ignorance of the existence of an

indictment for six years places him a position that is not materially different than that of a person

who was indicted six years later. Consequently, I would hold that appellant has not been deprived

of his Sixth Amendment right to a speedy trial.

       I respectfully dissent.

Filed: June 25, 2014
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