                         NUMBER 13-13-00413-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                         Appellant,

                                           v.

HORACIO CHAVEZ,                                                             Appellee.


                   On appeal from the 264th District Court
                          of Bell County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez
      Appellant the State of Texas challenges the trial court's dismissal of its aggravated

sexual assault of a child charges against appellee Horacio Chavez. By one issue, the

State argues that the trial court abused its discretion in granting Chavez's motion to

dismiss on speedy trial grounds. See U.S. CONST. amend VI; TEX. CONST. art. I, § 10.
We affirm.

                                          I. Background1

        Five months prior to the indictment in this case, Chavez began serving two

concurrent ten-year sentences for injury to a child. On March 14, 2007, Chavez was

indicted in this case for aggravated sexual assault of a child. See TEX. PENAL CODE ANN.

§ 22.021(a)(1)(B) (West Supp. 2012). An affidavit for appellant's arrest was filed with the

court prior to the indictment on February 21, 2007. But when it was determined that

Chavez was incarcerated, a detainer was filed with the Texas Department of Criminal

Justice (TDCJ) on June 27, 2007; the detainer referenced the February 21,

pre-indictment arrest warrant. Nearly six years later, on February 22, 2013, the trial

court issued a bench warrant compelling Chavez's appearance in court on this charge.

        In early March 2013, Chavez requested appointment of counsel, and then on April

15, 2013, Chavez filed a motion to dismiss the indictment, arguing that his constitutional

right to a speedy trial had been violated. The State responded, arguing that Chavez

failed to timely assert his right to a speedy trial and failed to show how he was prejudiced

by the delay. After a hearing, the trial court notified the parties by letter that it was

granting Chavez's motion to dismiss, which letter included the following findings and

conclusions:

                In [two earlier cases in November 2006], Horacio Chavez was
        charged by information with 1st Degree Intentional and Knowing Assault
        With Serious Bodily Injury to a Child Under 15 and . . . with 3rd Degree
        Injury to a Child . . . . Tammy Bracewell was the investigating Detective on

        1
         This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West 2005).
                                                    2
      both cases and signed affidavits for arrest on October 13, 2006. The
      affidavits were quite detailed. The Defendant plead [sic] guilty to those
      cases on November 6, 2006 with plea bargains and waived appeal.

              On February 20, 2007, the same Officer Tammy Bracewell submitted
      an Affidavit for arrest detailing allegations of aggravated sexual assault
      against the same victim . . . and noted that the Defendant was in prison for
      10 years for the assault on that child. A complaint was filed February 21,
      2007. On March 14, 2007, Mr. Chavez was indicted with the file containing
      the affidavit for arrest showing that the Defendant was in prison for 10 years
      on the assault on the same child. Nothing was done by the District
      Attorney's office to serve the Defendant or have the Defendant served with
      the Indictment or to Bench Warrant him back until February 22, 2013 when
      the Court ordered the Defendant be bench warranted back to Bell County
      from [TDCJ].

              Mr. Chavez had no knowledge an indictment had been issued
      against him so he could not possibly have been charged with an obligation
      or responsibility to notify the Court to pick him up or to demand a speedy
      trial, nor did he waive the right to be served with the indictment.

             The State had the obligation to put out the warrant and to notify the
      Sheriffs office where the Defendant was since they had sentenced him to
      TDCJ, and to notify the Court of the indictment so the Court could put the
      case on the arraignment and pre-trial dockets, none of which was done in
      2007. This is a case which lay dormant and "fell through the cracks" not
      through any fault of the Defendant but through lack of diligence by the
      State. The length of delay is entirely attributed to the State without any
      apparent justification or excuse. The fact that the Defendant was
      incarcerated on other cases, one of which included the same victim in this
      case, is no excuse and actually aggravates the situation because the State
      knew where Defendant was as he had been sentenced a mere three (3)
      months prior, the investigating officer was the same in all three cases, as
      was the Assistant District Attorney.

The State filed a motion to reconsider, which the trial court denied after a hearing. The

trial court then issued its written order granting Chavez's motion to dismiss on July 3,

2013. This appeal followed. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1) (West

Supp. 2012) (providing that the State may appeal when the trial court grants a motion to

dismiss an indictment).

                                            3
                     II. Applicable Law and Standard of Review

       The right to a speedy trial is guaranteed by both the United States Constitution and

the Texas Constitution. See U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10. In Barker

v. Wingo, the United States Supreme Court established a framework for analyzing

speedy trial claims. 407 U.S. 514, 530–31 (1972). The Barker framework requires

consideration of: (1) the length of the delay; (2) the reasons for the delay; (3) the

assertion of the right; and (4) the prejudice to the defendant. Id. Claims of a denial of

the state speedy-trial right are analyzed under the same four Barker factors. Cantu v.

State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008). No single factor is necessary or

sufficient to establish a violation of the right to a speedy trial. Barker, 407 U.S. at 530,

533. Instead, we weigh the strength of each of the Barker factors and then engage in a

balancing test in light of "the conduct of both the prosecution and the defendant." Cantu,

253 S.W.3d at 281; see also Barker, 407 U.S. at 533. The State bears the burden of

justifying the length of the delay, and the accused must prove the timely assertion of the

right to a speedy trial and prejudice. See Cantu, 253 S.W.3d at 280. The accused's

burden of proof "varies inversely" with the State's degree of culpability for the delay; in

other words, "[t]he greater the State's bad faith or official negligence and the longer its

actions delay a trial, the less [an accused] must show actual prejudice or prove diligence

in asserting [the] right to a speedy trial." Id. at 280–81. After finding that an accused's

right to a speedy trial was violated, the charging instrument must be dismissed with

prejudice. See Barker, 407 U.S. at 533.

       We use a bifurcated standard when reviewing the trial court's ruling on a


                                             4
speedy-trial motion. Cantu, 253 S.W.3d at 282. Viewing all of the evidence in the light

most favorable to the trial court's ruling and giving great deference to the trial court's

resolution of disputed facts, we review the factual components of the ruling for an abuse

of discretion. Id. The legal factors involved in the ruling—such as the balancing of the

Barker factors—are reviewed de novo. See id.

       We likewise use a bifurcated standard of review when considering a trial court's

decision to dismiss the 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, but review legal conclusions de novo. Id.

                                      III. Discussion

       By its sole issue, the State argues that the trial court erred in granting Chavez's

motion to dismiss. The State argues that the trial court relied too heavily on the State's

negligence in light of the fact that there was no evidence that the State acted intentionally

or in an effort to gain a tactical advantage. The State also argues that, in light of the June

2007 TDCJ detainer, the evidence did not support the trial court's finding that Chavez had

no knowledge of the charges. Finally, the State argues that Chavez failed to prove he

was prejudiced as a result of the delay.

       Although the trial court did not find the State acted intentionally, we agree with the

trial court that the State's actions in this case—or rather, lack thereof—were inexcusably

negligent. Chavez's case clearly "fell through the cracks," as found by the trial court, and

the State's failure to timely prosecute the case amounted to more than what the State

seems to characterize as a harmless accident. See Doggett v. State, 505 U.S. 647, 657


                                              5
(1992) (reasoning that although negligence is less serious than "a deliberate intent to

harm the accused's defense," it is still unacceptable and that our tolerance of such official

negligence should "var[y] inversely with its protractedness . . . and its consequent threat

to the fairness of the accused's trial"). The colloquy at the hearing on Chavez's motion

bears this out. When asked by the trial court what happened in this case, the prosecutor

responded as follows:

       Judge, I don't know. I really don't. The detainer was placed on him. I
       don't know why he wasn't bench warranted back. I'm not sure how all
       those procedures work. I don't know if the detainer means that he's
       automatically brought back or if somebody then does something to bring
       him back.

Defense counsel then responded regarding standard procedures:

       The State is assuming that a detainer would be made known to him that he
       has been indicted. What I didn't — what I can't understand is this: [t]he
       very question the Court is asking. An indictment returns the normal
       procedure that I've been looking at in Bell County for the last 42 years is
       within normally 15 days of an indictment there is an arraignment. That
       didn't happen here. They waited six and a half years to do an arraignment
       after he was brought back and what triggered him being brought back, I
       have no idea. [And] that's the problem.

The State offered no explanation—at this hearing or, later, at the hearing on its motion for

reconsideration—as to why Chavez's case lay dormant for nearly six years.

       Having reviewed the entire record before the trial court at the time of its ruling, we

cannot conclude that it erred in balancing the Barker factors in favor of Chavez. As

noted by the trial court in its findings, the offenses for which Chavez was incarcerated at

the time of the indictment involved the same victim as the victim alleged in the indictment

in this case.   Both the earlier offenses and the indicted offense in this case were

investigated by the same detective and handled by the same prosecutor. In other words,

                                             6
despite being well aware that Chavez was incarcerated, the State did little to ensure that

Chavez knew of the new indictment.                 The only notice Chavez arguably had of the

indictment was the TDCJ detainer, which referenced only the pre-indictment February

2007 arrest warrant. When questioned by the trial court, the State could provide no

explanation as to why no action had been taken on Chavez's case for nearly six years; in

other words, the State did not meet its burden to justify the length of the delay. See

Cantu, 253 S.W.3d at 280.

        The State's negligence in this case was great and the delay was long, and as such,

Chavez's burden to show a timely assertion of his rights and prejudice to his defense was

lessened. See id. at 280–81. Thus, even assuming without deciding that Chavez knew

of the detainer placed with TDCJ in June 2007, we conclude that Chavez acted timely

when he was served with the trial court's bench warrant in February 2013, the first notice

explicitly stating that a case was pending against him in court.2 See Doggett, 505 U.S. at

653–54 (explaining that a defendant cannot be penalized for failing to invoke his speedy

trial right when he was unaware of the indictment); Phillips v. State, 650 S.W.2d 396, 400

(Tex. Crim. App. 1983) ("Obviously, appellant cannot be faulted for failing to assert a right

he did not know he was entitled to."); see also State v. Howard, No. 08–12–00206–CR,

2013 WL 3943121, at *3 (Tex. App.—El Paso July 31, 2013, no pet.) (mem. op., not

designated for publication) (rejecting the State's argument that the appellant could be

faulted for his delay where there was no evidence, one way or the other, whether the

appellant, who was incarcerated at the time, had been served with a detainer the State
        2
          As noted above, the TDCJ detainer referenced only the February 2007 arrest warrant, which was
based on the initial complaint by the investigating officer and not the official charges later returned by the
grand jury.
                                                      7
had filed six years earlier). When he received the bench warrant, Chavez immediately

requested appointment of counsel and shortly thereafter asserted his right to a speedy

trial by filing a motion to dismiss.

       The State argues that Chavez's filing a motion to dismiss rather than a request for

a speedy trial weakens his speedy-trial claim because "it shows a desire to have no trial

instead of a speedy one." Cantu, 253 S.W.3d 273 at 283 (citing Barker, 407 U.S. at

534–36; Zamorano v. State, 84 S.W.3d 643, 651 n.40 (Tex. Crim. App. 2002)) (other

citations omitted). However, a request to dismiss is warranted in some cases if it is

determined that the long delay caused enough prejudice that requesting a prompt trial is

no longer in the defendant's best interest. See Zamorano, 84 S.W.3d at 651 n.40 (noting

that a motion to dismiss may alert both the court and the State of the delay and a

defendant's lack of acquiescence instead of serving merely as an attempt to escape trial

completely); see also Howard, 2013 WL 3943121, at *4. Here, Chavez's counsel argued

at both hearings in the case that the six-year delay will likely have caused such a

degradation in the potential quality of the testimonial evidence that dismissal was the only

fair option. Moreover, there was no evidence that Chavez was taking advantage of the

delay, or quietly "acquiescing" during the six-year dormancy of the case. Thus, by

moving to dismiss the indictment, Chavez alerted the trial court and the State both of the

delay and the lack of acquiescence and that a speedy trial was no longer in his best

interest. See Zamorano, 84 S.W.3d at 651 n.40. Moreover, because of the State's

official negligence in not prosecuting Chavez for nearly six years as he sat unrepresented

in prison, Chavez's burden to prove diligence in asserting his right to a speedy trial, as


                                             8
noted above, was not as onerous as it otherwise would have been. See Cantu, 253

S.W.3d at 280–81; see also Howard, 2013 WL 3943121, at *5. In short, we do not find

the State's reasoning persuasive under the facts of this case.

       With regard to prejudice, Chavez could meet his burden by showing that his

defense would be impaired by the delay. See Cantu, 253 S.W.3d at 285. Chavez

argued in his motion and at the hearing that he was prejudiced by the delay because

witnesses would be "impossible" to locate and, if located, their memories would have

faded. In response to the State's assertion that the locations of both child protection

case workers involved in the case and the alleged child victim were known, defense

counsel responded: "I've tried a case recently where two years have passed, [and] the

[sexual assault examination] nurse didn't remember the person.                How can you

remember somebody after six and a half years?" At the hearing on the State's motion for

reconsideration, defense counsel added that he was also concerned he would be unable

to locate the alleged victim's natural father, who had been mentioned as a potential

perpetrator in the earlier investigation, and that the delay denied counsel an opportunity

to cross-examine the alleged victim at or near the time of his outcry. Considering the

lessened burden, we conclude that Chavez made a sufficient showing of prejudice. See

id. at 280–81; see also Doggett, 505 U.S. at 655–56 ("[W]e generally have to recognize

that excessive delay presumptively compromises the reliability of a trial in ways that

neither party can prove or, for that matter, identify. While such presumptive prejudice

cannot alone carry a Sixth Amendment claim without regard to the other Barker

criteria, . . . it is part of the mix of relevant facts, and its importance increases with the


                                              9
length of delay."); Howard, 2013 WL 3943121, at *5 ("Indeed, prejudice is not limited to

the specifically demonstrable, and affirmative proof of particularized prejudice is not

essential in every case.").

       Given the State's complete lack of explanation and the lengthy, six-year delay, we

conclude that Chavez met his burden to show that he timely asserted his right to a speedy

trial and showed adequate prejudice. See Cantu, 253 S.W.3d at 280–81. In light of the

foregoing, the trial court did not err in dismissing Chavez's indictment on speedy trial

grounds.    See Barker, 407 U.S. at 533; Cantu, 253 S.W.3d at 282; see also

Krizan-Wilson, 354 S.W.3d at 815. We overrule the State's sole issue.

                                    IV. Conclusion

       We affirm the judgment of the trial court.



                                                             NELDA V. RODRIGUEZ
                                                             Justice

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

Delivered and filed the 21st
day of November, 2013.




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