Dismissed and Opinion Filed May 31, 2016.




                                                                 In The
                                          Court of Appeals
                                   Fifth District of Texas at Dallas
                                                      No. 05-15-00171-CR

                                         LUIS TERRAZA DURAN, Appellant
                                                      V.
                                          THE STATE OF TEXAS, Appellee

                                On Appeal from the 366th Judicial District Court
                                             Collin County, Texas
                                    Trial Court Cause No. 366-82853-2011

                                         MEMORANDUM OPINION
                         Before Chief Justice Wright, Justice Lang, and Justice Brown
                                           Opinion by Justice Lang

          This appeal follows convictions for two counts of aggravated sexual assault of a child and

one count of indecency with a child by contact. In a single issue, Luis Terraza Duran asserts the

trial court’s judgments should be reversed because retained counsel, who represented him

following his arrest until six weeks before trial, was ineffective “by failing to recognize, file and

urge” a speedy trial claim.1 We affirm the trial court’s judgments.

                                 I. FACTUAL AND PROCEDURAL CONTEXT

          The offenses occurred between 1998 and 2004. In July 2005, the victim, Duran’s step-

daughter, gave birth to a child fathered by Duran. The victim was eleven years old at the time

and did not disclose the abuse and that Duran was the father until May 2007.
   1
       After retained counsel withdrew, counsel was appointed for Duran.
         For reasons unclear from the record, Duran was not indicted until November 17, 2011.

He was arrested in September 2013, almost two years later, after being extradited from Mexico

where he had fled following the victim’s disclosure. He was convicted by a jury in December

2014 and sentenced by the trial court to concurrent terms of fifty-five years’ incarceration on

each count of aggravated sexual assault and seventeen years’ incarceration on the indecency

count.

                      II. INEFFECTIVE ASSISTANCE OF COUNSEL

         Duran’s ineffective assistance of counsel claim stems from the nearly two year delay

between the date he was indicted and the date he was arrested. Duran asserts the attorney he

retained following his arrest “ought to have been aware from the moment his representation . . .

commenced that a legitimate and viable claim for a violation of Appellant’s Speedy Trial rights

was ripe and ready for advancement[.]” Duran asserts further that, had retained counsel filed a

motion to set aside the indictment based on a speedy trial violation, the trial court’s “granting of

the motion would have resulted in the dismissal of the Indictment.”

                           A. Standard of Review and Applicable Law

                               1. Ineffective Assistance of Counsel

         To prevail on an ineffective assistance of counsel claim, a defendant must show by a

preponderance of the evidence both that counsel’s performance was deficient and the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). To satisfy the first prong, the

defendant must show counsel’s performance fell below “the range of competence demanded of

attorneys in criminal cases as reflected by prevailing professional norms[.]” Nava v. State, 415

S.W.3d 289, 307 (Tex. Crim. App. 2013). The defendant generally must use affirmative evidence

in the trial record to meet this burden. See Ex parte Bryant, 448 S.W.3d 29, 39 (Tex. Crim. App.

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2014). To satisfy the second prong, the defendant must show a reasonable probability that,

absent counsel’s errors, the result of the proceeding would have been different. Strickland, 466

U.S. at 687, 694; Nava, 415 S.W.3d at 308. A defendant’s failure to satisfy either prong defeats

the ineffective assistance claim. Thompson, 9 S.W.3d 813.

       In reviewing counsel’s representation, an appellate court looks to the totality of

representation and indulges a strong presumption that counsel’s conduct “fell within the wide

range of reasonable professional assistance.” Id. at 813. Review is highly deferential and, a

record silent as to why counsel took or failed to take the complained of actions will not support

an ineffective assistance claim unless the record affirmatively demonstrates counsel’s

performance was “so outrageous that no competent attorney would have engaged in it.” See

Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005)); Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim.

App. 2001). Counsel is not required to file futile motions, and counsel’s failure to file a pretrial

motion is not “categorically deemed” ineffective assistance of counsel. Mooney v. State, 817

S.W.2d 693, 698 (Tex. Crim. App. 1991); Madden v. State, 911 S.W.2d 236, 241 (Tex. App.—

Waco 1995, pet. ref’d).

                                          2. Speedy Trial

       A defendant has a fundamental right to a speedy trial under the Sixth Amendment to the

United States Constitution and article 1, section 10 of the Texas Constitution. See U.S. CONST.

amend. VI; TEX. CONST. art. 1, § 10; Klopfer v. North Carolina, 386 U.S. 213, 223 (1967); Cantu

v. State, 253 S.W.3d 273, 280 n.16 (Tex. Crim. App. 2008). This right protects the defendant

against unjustified and prejudicial pretrial delay. See Doggett v. United States, 505 U.S. 647,

651-52 (1992). Generally, a delay “approach[ing] one year” is “presumptively prejudicial” and

triggers analysis of a speedy trial claim. Id. at 652 n.1; Harris v. State, 827 S.W.2d 949, 956

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(Tex. Crim. App. 1992) (noting delay of eight months or longer “presumptively unreasonable”)

(citation omitted).

          Courts determine a speedy trial claim on an “ad hoc basis” by applying a balancing test

known as the “Barker test.”2                  See Cantu, 253 S.W.3d at 280.     In addition to considering the

length of the delay, a court will consider the reason for the delay; the defendant’s assertion of his

right; and the prejudice inflicted by the delay. Id.. The defendant bears the burden of showing

the delay was “presumptively prejudicial,” he asserted his right to a speedy trial and was

prejudiced by the delay, while the State bears the burden of justifying the length of the delay.

See id. The defendant’s burden “varies inversely” with the State’s degree of culpability for the

delay. Id. If a speedy trial violation is established, the indictment must be dismissed. Dragoo v.

State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003) (citing Strunk v. United States, 412 U.S. 434,

440 (1973)).

                                               B. Application of Law to Facts

          Duran asserts retained counsel should have filed a speedy trial claim knowing that almost

two years elapsed between the date of the indictment and the date of his arrest. The delay Duran

encountered is “presumptively unreasonable.” See Doggett, 505 U.S. at 652 n.1. However, the

record is silent as to why counsel did not file a motion to dismiss the indictment for lack of a

speedy trial, and we find nothing in the record affirmatively demonstrating counsel’s

performance was “so outrageous that no competent attorney would have engaged in it.” See

Menefield, 363 S.W.3d at 593.

          The record reflects Duran fled to Mexico following the victim’s disclosure in May 2007

and returned only because he was extradited. Counsel may have well believed, considering

Duran fled the country, that it would have been futile to file a motion to dismiss. See Rivera v.

   2
       See Barker v. Wingo, 407 U.S. 514 (1972).



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State, 990 S.W.2d 882, 890 (Tex. App.—Austin 1999, pet. ref’d) (delay of eighteen years

between date of indictment and date of arrest did not weigh against State where “appellant’s

hasty disappearance . . . coupled with his frequent name and identifying numbers changes while

in another jurisdiction” established failure to apprehend appellant due in large part to appellant’s

actions); Burgett v. State, 865 S.W.2d 594, 597 (Tex. App.—Fort Worth 1993, pet. ref’d) (five-

year delay between indictment and arrest weighed against appellant because delay attributable to

appellant’s elusive conduct); Martinez v. State, 824 S.W.2d 688, 691 (Tex. App.—El Paso 1992,

pet. ref’d) (appellant could not contest two-year delay between date of indictment and date of

arrest where delay caused by appellant’s absence from state and absence from state provided

basis for alibi defense). On the record before us, we conclude Duran has failed to show counsel

was deficient and, accordingly, failed to demonstrate counsel was ineffective. See Thompson, 9

S.W.3d at 813; see also Newcomb v. State, 547 S.W.2d 37, 38 (Tex. Crim. App. 1977) (noting

nature of Barker test requires full development of facts). We resolve Duran’s sole issue against

him.

                                       III. CONCLUSION

       We affirm the trial court’s judgments.




                                                      /Douglas S. Lang/
                                                      DOUGLAS S. LANG
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47
150171F.U05




                                                –5–
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

LUIS TERRAZA DURAN, Appellant                        On Appeal from the 366th Judicial District
                                                     Court, Collin County, Texas
No. 05-15-00171-CR        V.                         Trial Court Cause No. 366-82853-2011.
                                                     Opinion delivered by Justice Lang. Chief
THE STATE OF TEXAS, Appellee                         Justice Wright and Justice Brown
                                                     participating.

       Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgments.


Judgment entered this 31st day of May, 2016.




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