Opinion issued June 9, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-15-00367-CR
                           ———————————
                     REYNALDO ZAMORA, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 22nd District Court
                           Hays County, Texas*
                       Trial Court Case No. 87-0140


                         MEMORANDUM OPINION



*
     The Texas Supreme Court transferred this appeal from the Court of Appeals for
     the Third District of Texas. Misc. Docket No. 15-9054 (Tex. Mar. 24, 2015); see
     TEX. GOV’T CODE § 73.001 (authorizing transfer of cases). We are unaware of any
     conflict between precedent of that court and that of this court on any relevant
     issue. See TEX. R. APP. P. 41.3.
      A jury convicted Reynaldo Zamora of aggravated kidnapping. See TEX.

PENAL CODE § 20.04. The trial court assessed punishment at 60 years in prison.

Zamora appealed, and in his sole issue he contends that the trial court erred by

denying his motion to dismiss for lack of a speedy trial.

      The evidence presented to the trial court supported a conclusion that Zamora

failed to timely demand a speedy trial, and no substantial prejudice resulted from

the 26-year delay in this prosecuting this case, which largely was attributable to his

own actions. Accordingly, we affirm the trial court’s judgment.

                                    Background

      In 1986, the complainant and a friend, both then girls under the age of ten,

were walking down a street in Hays County, Texas. A white Corvette pulled up

beside them, and the driver asked whether they knew the location of a mutual

friend, Vera. The driver identified himself as “Ray Zamora” and claimed to be

Vera’s uncle. He asked the girls to help him find Vera, and they agreed. After

driving around the town, he dropped the complainant’s friend off at the same

location where he had found them.

      The complainant also attempted to leave the car, but Zamora pulled her by

her hair and forced her to remain as he sped away. With one hand, Zamora grasped

the complainant’s chest under her shirt. With the other hand over her clothes, he

touched and squeezed her vagina. Zamora then dropped the complainant off at her



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bus stop, and he threatened that if she told anyone anything about the incident he

would “come back for” her. The complainant nonetheless informed the police.

      Zamora was arrested. The complainant and her friend were able to identify

his white Corvette as the same one that their kidnapper drove. While the girls

initially had difficulty identifying a suspect, they each selected Zamora’s

photograph from a photo lineup.

      Zamora posted bond and was released from jail. He later testified that

shortly thereafter he was involved in a car accident and was in a coma for 52 days,

which caused him to forget his arrest. Zamora failed to appear in court, and a new

warrant was issued for his arrest.

      Twenty-seven years later, in 2013, Zamora was arrested on the outstanding

warrant in Hays County. He filed a motion to dismiss the 1986 kidnapping charges

against him due to violation of his right to a speedy trial. Zamora claimed that he

had been arrested several times between 1986 and 2013, including arrests in

Maverick County, Travis County, and the Commonwealth of Kentucky. He argued

that at no point during these arrests, some of which resulted in convictions and

imprisonment in state custody, was he made aware of the ongoing charges against

him in Hays County, nor was any attempt made to bring him to trial there.

      During his arrest in Maverick County in 1992, Zamora was found with

multiple sets of identification cards, some of which were in the name of “Enrique



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Mata Jimenez.” Zamora appeared on the Maverick County charges as Enrique

Mata Jimenez, and he applied for counsel as an indigent under the same name.

Zamora claimed that “Jimenez” was the name of his Mexican brother, and he gave

an alternate spelling of his name (“Jimmenz”) when testifying in this case. At some

point later, Zamora left custody without being paroled; an escape warrant from

Maverick County identified his name as “Enrique Mata-Jimenez” but listed in the

comments “Reynaldo Ybarra-Zamora.” Zamora claimed that he did not escape

custody in Maverick County, but instead he was brought to the border as an illegal

immigrant and told to return to Mexico.

      In his motion to dismiss the kidnapping charges, Zamora noted a few

specific incidents when he was in custody, and he contended that Hays County was

negligent in bringing him to trial. First, in 2000, Zamora was incarcerated in

Kentucky, due in part to the fugitive warrant from Hays County, which failed to

extradite him. Second, Zamora was incarcerated on other charges in Maverick

County in 2002, under the same name and date of birth as listed in the Hays

County warrant. He was paroled in 2005. Third, in 2007, he was arrested in

Austin. His parole on the Maverick County conviction was revoked in 2008, only

for him to be paroled again in 2010.

      Zamora alleged that his kidnapping defense would be prejudiced by the lack

of a speedy trial because he would not be able to secure alibi evidence from two



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witnesses who had passed away. He specifically claimed that at the time he was

alleged to have committed the kidnapping, he was working in Colorado with

“Colonel Sanders” and “Dr. Darryl Havert.” Zamora testified that both of these

witnesses passed away in 2007. He argued that because he and his brother, Enrique

Mata Jimenez, looked alike, that Jimenez probably had committed the kidnapping

while using his identity. He also claimed that no one knew where his brother was,

and he was incapable of finding him. Zamora provided no other proof of these

assertions beyond his testimony.

      At the hearing on the motion to dismiss, the State presented evidence that

Zamora had a history of using different aliases and dates of birth when in custody.

In addition to his appearance as “Enrique Mata Jimenez,” he would alternate

between spelling his name as “Raynaldo” and “Reynaldo,” switch his middle and

last names, and give his date of birth as being in either 1954 or 1958.

      The State stipulated that a number of items of evidence relating to the case

were missing. These included items purchased from a gas station while Zamora

was with the two girls, hair samples and fingerprints from the girls, the original

fingerprint card taken from Zamora during the 1986 arrest, photos of the Corvette,

hair samples taken from the Corvette, and the girls’ original recorded statements.

The State also conceded that the hair samples taken from the Corvette did not

match the girls’ samples, and thus was exculpatory evidence.



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      The trial court denied the motion to dismiss, and wrote on the docket sheet

that the delay was attributable to Zamora’s “own actions, lack of previous request

for speedy trial” and that there was a “lack of prejudice” to him under the

circumstances.

      After Zamora’s initial motion to dismiss but before voir dire, the State

admitted that the Department of Criminal Justice Parole Division had sent a

request to Hays County in 2010, asking about the status of the kidnapping cases.

However, Hays County was unable to locate the file on the kidnapping charges,

and at that time it was able to locate only the indictment, motion for continuance,

and capias warrants. The State conceded that it was unable to replicate the file until

2013. Zamora asked the court to reconsider the motion for to dismiss, but the trial

court once again denied the motion.

      A jury convicted Zamora of aggravated kidnapping. The court assessed

punishment at 60 years’ imprisonment. Zamora moved for a new trial, claiming

that the trial court erred by denying his motion to dismiss for lack of a speedy trial.

The motion was overruled by operation of law, and Zamora appealed.

                                      Analysis

      We review a trial court’s ruling on a claim of a denial of the right to a

speedy trial under a bifurcated standard: we review the trial court’s factual

determinations for abuse of discretion, and its legal determinations de novo.



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Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). Because the trial

court denied the motion to dismiss, we assume that the trial court resolved any

disputed fact issues in the State’s favor, and we defer to the implied findings of

fact that the record supports. Id. When assessing the evidence presented at a

hearing on a motion to dismiss for lack of a speedy trial, the trial court may

completely disregard a witness’s testimony based on credibility and demeanor

evaluations, even if the testimony is uncontradicted, and it may disbelieve any

evidence as long as there is a reasonable and articulable reason for doing so.

McGregor v. State, 394 S.W.3d 90, 113 (Tex. App.—Houston [1st Dist.] 2012, pet.

ref’d).

          The Sixth Amendment to the United States Constitution guarantees the

accused a speedy trial, and the sole remedy when the accused is deprived of this

right is dismissal. See U.S. CONST. amend. IV; Barker v. Wingo, 407 U.S. 514,

522, 92 S. Ct. 2182, 2188 (1972). To determine whether the appellant has been

deprived of this right, we weigh and balance the four factors the Supreme Court set

forth in Barker v. Wingo, 407 U.S. 514 (1972): “1) length of the delay, 2) reason

for the delay, 3) assertion of the right, and 4) prejudice to the accused.” Id. at 530,

92 S. Ct. at 2192; Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).

The State generally has the burden of justifying the length of the delay, while the

defendant has the burden of proving assertion of the right and showing prejudice.



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Cantu, 253 S.W.3d at 280. The greater the State’s bad faith or 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. Id. at 280–81.

I.    Length of the delay

      The length of the delay acts as a “triggering mechanism” that precludes

further review unless the delay is presumptively prejudicial. See Barker, 407 U.S.

at 530, 92 S. Ct. at 2192. The length of the delay that will provoke a speedy trial

inquiry is “necessarily dependent upon the peculiar circumstances of the case.” Id.

at 530–31, 92 S. Ct. at 2192. So long as the delay is more than “ordinary” it is

subject to the speedy trial analysis, and the longer the delay, the greater the

presumption of prejudice to the defendant. Zamorano, 84 S.W.3d at 649.

      In this case, the State concedes that the 26-year delay between Zamora’s

arrest and his prosecution “requires further inquiry,” effectively conceding that the

delay was presumptively prejudicial. See McGregor, 394 S.W.3d at 113. We agree

that this delay was sufficient to trigger our analysis of the remaining Barker

factors. The extreme length of the delay in this case “stretched well beyond the

bare minimum needed to trigger judicial examination of the claim,” and therefore

this factor “weighs heavily against the State.” Zamorano, 84 S.W.3d at 649.




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II.   Reason for the delay

      The State generally bears the burden of justifying the length of the delay in

bringing a defendant to trial. Cantu, 253 S.W.3d at 280. A “deliberate attempt to

delay the trial” is weighed heavily against the government, while a “more neutral

reason such as negligence” is weighed less heavily. State v. Munoz, 991 S.W.2d

818, 822 (Tex. Crim. App. 1999) (quoting Barker, 407 U.S. at 531, 92 S. Ct. at

2192). However, “delay which is attributable in whole or in part to the defendant

may even constitute a waiver of a speedy trial claim.” Id.; see also Webb v. State,

36 S.W.3d 164, 173 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). A

defendant’s decision to remain a fugitive without asserting his right to a speedy

trial weighs heavily against him. Lott v. State, 951 S.W.2d 489, 495 (Tex. App.—

El Paso 1997, pet. ref’d). The inquiry is not whether one party is solely to blame,

but rather “whether the government or the criminal defendant is more to blame for

that delay.” Doggett v. U.S., 505 U.S. 647, 651, 112 S. Ct. 2686, 2690 (1992).

      Zamora asserts that the State’s negligence in bringing him to trial should

weigh against it in the Barker analysis. The State responds that Zamora’s extensive

use of aliases constitutes a waiver of the right to speedy trial, and the delay in

trying him was due to his own actions.

      In this case, the trial court reasonably could have concluded that the delay

from 1986 until 2002 was largely attributable to Zamora. It was Zamora’s decision



                                         9
to leave the county while a charge was pending against him, to use the alias of his

brother in other court proceedings, and to change the spelling of his name and his

date of birth in both his official documents and in subsequent arrests. Based on this

record, the trial court reasonably could have found as a matter of fact that the

State’s inability to apprehend Zamora for the kidnapping was due to his active

effort to evade arrest and prosecution during this time. See Lott, 951 S.W.2d at

495.

       The State’s negligence in failing to apprehend Zamora was more readily

apparent from 2002 onward, when he was in the State’s custody under the same

name and date of birth given in the Hays County warrant. The State admitted at

trial that its failure to charge Zamora during this period would suggest its

negligence in the length of the delay. Negligence weighs against the State when

considering the reason for the delay. See Munoz, 991 S.W.2d at 822.

       However, the trial court nevertheless could have concluded that these

difficulties were based in part upon the long interval when Hays County was

unable to locate Zamora because of his evasion of prosecution. The passage of

time also led to the loss of the county’s files on Zamora, resulting in their difficulty

in obtaining evidence against him. Accordingly, the trial court acted within its

discretion to find that this factor weighed in favor of the State, rather than Zamora.




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See Doggett, 505 U.S. at 651, 112 S. Ct. at 2690; Barker, 407 U.S. at 531, 92 S. Ct.

at 2192 (valid reasons such as missing witnesses do not weigh against State).

III.   Assertion of the right

       A defendant has no duty to bring himself to trial; that duty is incumbent on

the State. Cantu, 253 S.W.3d at 282. However, the defendant does have a

responsibility to assert his right to a speedy trial. Id. A defendant’s assertion of his

speedy trial right, or his failure to assert it, is entitled to strong evidentiary weight

in the speedy trial analysis. Id. at 283. A defendant’s lack of a timely demand for a

speedy trial “indicates strongly that he did not really want a speedy trial” and that

he was not prejudiced by the lack of one. Dragoo v. State, 96 S.W.3d 308, 314

(Tex. Crim. App. 2003). Access to counsel is one of the factors considered when

determining whether a defendant has asserted the right to speedy trial. See id. at

314–15.

       In this case, there is no record of Zamora asserting his speedy trial right until

2013. Instead, he left Hays County shortly after his arrest. There is nothing in the

record to suggest that he returned to the county until he was arrested again in 2013.

Even crediting Zamora’s story that he forgot his initial arrest in 1986 due to a

subsequent head injury, he was informed by the Kentucky courts in 2000 that there

was a warrant for his arrest in Hays County. Zamora did nothing to assert his

speedy trial right for the next thirteen years after he was aware of these charges,



                                           11
despite the fact that he repeatedly had access to counsel for his other criminal

charges during that time. See id. (access to counsel may be weighed when

determining assertion of speedy trial right).

      Furthermore, Zamora’s use of aliases and his repeated attempts to evade

custody support an implied finding by the trial court that, rather than asserting his

speedy-trial right, he preferred to avoid trial as long as possible. See Zamorano, 84

S.W.3d at 648. We conclude the trial court reasonably could have determined that

this factor weighs heavily against Zamora in the Barker analysis. See Cantu, 253

S.W.3d at 284.

IV.   Prejudice to the accused

      The fourth Barker factor examines whether and to what extent the delay has

prejudiced the defendant. Id. at 285. We analyze prejudice based on the interests

that the speedy trial right was designed to protect: (1) preventing oppressive

pretrial incarceration; (2) minimizing the accused’s anxiety and concern; and

(3) limiting the possibility that the accused’s defense will be impaired. Id. The last

of these factors is the most serious, as it can have a material effect on the fairness

of the trial as a whole. Id. “If witnesses die or disappear during a delay, the

prejudice is obvious.” Barker, 407 U.S. at 532, 92 S. Ct. at 2193.

      Zamora did not suffer pretrial incarceration for the offense in this case; he

paid bail and was not thereafter incarcerated in Hays County until his arrest in



                                          12
2013. Neither did he present any evidence of anxiety or concern about the charges

against him. However, Zamora did assert prejudice to his defense. He claimed that

he was unable to present two alibi witnesses who passed away during the interval

when he was not imprisoned. He also asserted that he could not present his brother

as a plausible alternative suspect because the brother had gone into hiding.

      Zamora did not present any further evidence beyond his own testimony to

support any of his claims regarding alibi witnesses. He did not produce any

objective evidence about the deaths of the supposed alibi witnesses, Colonel

Sanders or Dr. Darryl Havert. There was no further evidence beyond Zamora’s

bare assertion to support his claim that he was not in Texas during the kidnapping.

The trial court was free to disbelieve Zamora’s testimony entirely based on its

assessment of his credibility. See McGregor, 394 S.W.3d at 113. Based on these

implied factual conclusions, the trial court reasonably could have concluded there

were no material defense witnesses actually lost as a result of the delay.

      The State stipulated that further evidence was lost, but almost all of this

evidence would have aided the prosecution rather than Zamora. The only

exculpatory item was the forensic examination of the hair follicles from the

Corvette, and the State stipulated that the results were in Zamora’s favor. Based on

the record, we cannot conclude that Zamora’s defense was materially prejudiced




                                          13
by the delay. We conclude that this factor does not weigh against either the State or

Zamora. See Cantu, 253 S.W.3d at 285.

                                    Conclusion

       Based on our analysis of the Barker factors, one factor (the length of the

delay) weighs in Zamora’s favor, but two (the reason for the delay and assertion of

the right) weigh against him, and the fourth does not add to either side. The

evidentiary record shows that Zamora repeatedly evaded trial and failed to assert

his speedy trial right. We conclude that the trial court correctly exercised its

discretion by denying Zamora’s motion to dismiss. See Zamorano, 84 S.W.3d at

648.

       We affirm the judgment of the trial court.




                                                Michael Massengale
                                                Justice

Panel consists of Justices Higley, Bland, and Massengale.

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




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