No. 05-05-01140-CR
Opinion Filed July 12, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-01091-TR. Affirmed.
Before Justices WRIGHT, MOSELEY, and LANG.
Opinion By Justice LANG.
Rafael Arriaza Gonzalez appeals his conviction for murder. A jury found appellant guilty and assessed punishment at thirty years' confinement. In his sole issue on appeal, appellant contends the trial court erred in denying his motion to dismiss for violation of his right to a speedy trial. We decide against appellant on his sole issue and affirm.
The record contains two different spellings of appellant's last name: (1) Gonzales, and (2) Gonzalez. We note that appellant uses the second spelling. Accordingly, we use that spelling in this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 2, 1995, at approximately 12:30 p.m., Roberto Velasquez was killed near an apartment complex in Irving, Texas. Luz Del Cid, a sister of Velasquez, testified that she saw appellant shoot Velasquez several times from the front seat of a parked car as Velasquez stood near the car. A second eyewitness, Darlene Nicole Keener, was baby-sitting nearby and looked up when she heard the gunshots. After shooting Velasquez, appellant drove away. Detective Harold Renfroe, a police officer with the City of Irving, showed separate photo lineups to Del Cid and Keener. Both witnesses identified appellant from the photo lineups. Del Cid said appellant and Velasquez had known each other since childhood and had lived in the same small community of Morazan, Guatemala. Renfroe obtained a warrant for appellant's arrest and checked three addresses and several other locations in the Dallas area where he believed appellant might be found. However, he was unable to locate appellant. Del Cid then told Renfroe that she had heard that appellant had gone to California. Appellant was indicted for murder on June 28, 1995. Also on that date, Renfroe posted appellant's warrant on TCIC and NCIC, state and national criminal databases for law enforcement. On July 26, 1995, appellant's warrant was sent to the Dallas Sheriff's Office to be served. Officers went to the address listed on the warrant on August 10, 1995, in an attempt to serve the warrant. Because appellant was not found at that address, the warrant was then sent to the Violent Crimes Unit of the Dallas Sheriff's Office, which was responsible for trying to ascertain additional information to locate individuals in such cases. In August 1995, Del Cid was contacted by her mother, who lived in Morazan, Guatemala. Del Cid's mother told Del Cid that she had seen appellant recently in Guatemala, and that he had threatened her on several occasions. Del Cid relayed this information to Renfroe. Renfroe called the U.S. Embassy in Guatemala and spoke to Lance Ruth. Renfroe told Ruth there was a warrant out for appellant and appellant had been seen in Guatemala. On March 6, 1996, Renfroe learned from a representative of a Dallas bonding business that Albino Chivarerra, an acquaintance of appellant who was also being sought in connection with the Velasquez murder, was possibly in Morazan, Guatemala. Renfroe called the U.S. Embassy in Guatemala and the U.S. State Department office in Dallas, Texas, and informed them of Chivarerra's possible location. Between March 6, 1996, and March 30, 2001, Renfroe obtained no additional information as to appellant's whereabouts and had no further involvement in the case. Renfroe did not inform the Dallas Sheriff's Office that appellant had been seen in Guatemala. The Violent Crimes Unit of the Dallas Sheriff's Office ran a nationwide database search under appellant's name on April 16, 1997, but no new information was found. On February 7, 2001, appellant's Guatemalan passport was stamped by the U.S. Embassy in Guatemala to indicate that a visa application was received from appellant on that date. However, the U.S. Embassy did not contact Renfroe or the Dallas Sheriff's Office at that time. Appellant was incarcerated in Guatemala on March 8, 2001, for three murders not connected with this case. The Dallas Sheriff's Office was contacted by the U.S. Federal Bureau of Investigation on March 30, 2001, and told that appellant was in custody in Guatemala. The Dallas Sheriff's Office then contacted Jeff Shaw, chief investigator with the Dallas County District Attorney's Office, and informed him of appellant's location. Shaw called the U.S. Justice Department's Office of International Affairs in Washington, D.C., on April 3, 2001, and notified them that appellant had been found. On May 8, 2001, the Office of International Affairs sent provisional arrest documentation to Guatemala. A new warrant was issued for appellant on June 6, 2001. Although appellant was known to be in jail in Guatemala, officers from the Dallas Sheriff's Office again went to appellant's last known address in Garland, Texas, to attempt execution of that warrant. The Dallas County District Attorney's Office received notice on June 26, 2001, that provisional arrest documents had been served on appellant in Guatemala. The District Attorney's Office sent formal extradition documents to the Guatemalan Attorney General on July 24, 2001. On September 26, 2001, the Guatemalan court sent the Dallas County District Attorney's Office initial court approval of the provisional arrest documents. Although it is not clear when the Guatemalan government found in favor of appellant's extradition to the United States, appellant filed an appeal of extradition on October 8, 2001. The Office of International Affairs sent an e-mail to the Guatemalan Embassy on September 4, 2002, inquiring as to the status of appellant's appeal of extradition. The Embassy replied that the appeal was in its final stages. On August 25, 2003, the Office of International Affairs sent an e-mail to the Guatemalan Minister of Foreign Relations inquiring as to the status of appellant's extradition. The Office of International Affairs was told that appellant had filed another appeal, which was pending. On April 30, 2004, Tom Black of the Office of International Affairs asked the Guatemalan Attorney General to investigate the matter of appellant's extradition. On May 12, 2004, the Guatemalan Attorney General sent a letter to Black, stating that the extradition papers required the signature of Guatemalan President Portillo, who had been removed from power in January 2004. At the request of Black, the U.S. ambassador to Guatemala asked the new Guatemalan government to get involved. Appellant's extradition papers were signed on July 13, 2004. On July 29, 2004, appellant was placed in jail in Dallas. Appellant's trial was initially set for December 6, 2004. On December 7, 2004, the case was reset by agreement and without objection for March 7, 2005. The record is unclear as to why trial did not commence on March 7, 2005. However, appellant did not object to a second resetting of his trial. On March 14, 2005, appellant filed a motion to dismiss alleging violation of his right to a speedy trial. The trial court heard evidence regarding appellant's motion to dismiss on March 25, 2005, March 31, 2005, and April 22, 2005. On May 13, 2005, appellant's motion was denied. Trial commenced on July 11, 2005, and was completed by July 14, 2005. Appellant offered no testimony at trial. Following his conviction and sentencing by the jury, appellant filed this appeal. II. SPEEDY TRIAL
Appellant contends he was denied his right to a speedy trial because his jury trial proceeding was scheduled more than nine years after the alleged murder for which he was indicted. He argues that the delay was the fault of the State and that it prejudiced his defense. The State contends that appellant waived his speedy trial right by fleeing to Guatemala, fighting his extradition, and voluntarily resetting his trial twice. Further, the State argues, appellant failed to timely assert his right to a speedy trial, and the delay did not cause him harm. A. Standard of Review
The United States Constitution and the Texas Constitution both provide that every accused shall have the right to a speedy trial. U.S. Const. amend. VI; Tex. Const. art. I, § 10. In determining whether a criminal defendant has been denied his federal or state constitutional right to a speedy trial, a court must use a balancing test in which the conduct of both the State and the defendant are weighed. Barker v. Wingo, 407 U.S. 514, 530 (1972); Shaw v. State, 117 S.W.3d 883, 888 (Tex.Crim.App. 2003). The factors to be weighed in the balance include, but are not necessarily limited to: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530; Shaw, 117 S.W.3d at 888-89. The factors are all related and must be considered together with other relevant circumstances on a case by case basis. Barker, 407 U.S. at 533. No single factor is necessary or sufficient to establish a violation of a defendant's right to a speedy trial. Id. In reviewing the trial court's decision on a speedy trial issue, the appellate court applies a bifurcated standard of review, meaning that an abuse of discretion standard applies to the factual components and a de novo standard applies to the legal components. State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App. 1999). The appellate court must review the trial court's ruling in light of the arguments, information, and evidence that was available to the trial court at the time it ruled. Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003). The trial court's ruling must be upheld if it is supported by the record and correct under the applicable law. Shaw, 117 S.W.3d at 889. B. Application of Barker Factors 1. Length of Delay
The first factor, the length of the delay, is measured from the time the defendant is arrested or formally accused. United States v. Marion, 404 U.S. 307, 313 (1971). The length of the delay is, to some extent, a triggering mechanism, so that a speedy trial claim will not be heard until passage of a period of time that is prima facie unreasonable under the circumstances. Doggett v. United States, 505 U.S. 647, 651-52 (1992); Barker, 407 U.S. at 530. "If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim." Doggett, 505 U.S. at 652. In general, delay approaching one year is sufficient to trigger a speedy trial inquiry. Id. at 652 fn. 1. Appellant was indicted on June 28, 1995. His trial began on July 11, 2005. The State concedes that a delay of ten years is sufficient to trigger a speedy trial inquiry. Moreover, the delay here stretched significantly beyond the minimum needed to warrant such an inquiry. See Shaw, 117 S.W.3d at 889. Consequently, this factor weighs in favor of finding a violation of appellant's right to a speedy trial. Id. 2. Reason for Delay
The State bears the initial burden of justifying a lengthy delay. Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994). In light of a silent record or one containing reasons insufficient to excuse the delay, it must be presumed that no valid reason for the delay existed. See Turner v. State, 545 S.W.2d 133, 137-38 (Tex.Crim.App. 1976). In examining the reasons for the delay, "different weights should be assigned to different reasons." Munoz, 991 S.W.2d at 822 (quoting Barker, 407 U.S. at 531). A deliberate attempt to delay the trial to hamper the defense should be weighted heavily against the State. Barker, 407 U.S. at 531. A more neutral reason, such as negligence or overcrowded courts, should be weighted less heavily. Id. Finally, a valid reason justifies appropriate delay. Id. a. June 28, 1995 to March 30, 2001
Appellant first argues that his right to a speedy trial was violated because, beginning in June 1995, there was a "six-year period of inaction by the District Attorneys and law enforcement agencies." He contends that a lack of effective communication between the Irving Police Department and the Dallas County Sheriff's Office resulted in a complete cessation of action between March 1996 and March 2001. Further, he maintains, that lack of activity led to the failure of the U.S. Embassy in Guatemala to contact law enforcement officials when appellant applied for a visa on February 7, 2001. Appellant argues that the fact that Assistant District Attorney Jeff Shaw was able to extradite appellant from Guatemala after receiving the case in 2001 shows that appellant could have been apprehended and brought to the United States sooner. The State asserts that the six-year delay between the date of the presentment of the indictment and the discovery of appellant's whereabouts was justified because it was due entirely to appellant evading the law. The State contends that Detective Renfroe searched for appellant at three residences in the Dallas area and posted appellant's warrant on NCIC and TCIC. Renfroe also later contacted the U.S. Embassy and the U.S. State Department to provide them with information regarding appellant's whereabouts. The Dallas Sheriff's Office attempted to serve an arrest warrant on appellant soon after the murder and later ran a search in a nationwide database to gather any new information on appellant. The State argues that because appellant's location between June 1995 and March 2001 was unknown to the State, appellant's evasion was beyond the State's control and should not be weighed against the state. The record shows that appellant left the United States and traveled to Guatemala after the murder of Velasquez. Although there is no evidence that appellant used an alias or tried to conceal his whereabouts during that time, his location within Guatemala was unknown to the State until his arrest in that country in March 2001. Detective Renfroe and the Dallas Sheriff's Office pursued all leads made known to them from 1995 to 2001, including searching for appellant locally and contacting the U.S. Embassy in Guatemala and the U.S. State Department. See Lott v. State, 951 S.W.2d 489, 493-95 (Tex.App.-El Paso 1997, reh'g denied) (finding no evidence of failure to follow reasonable leads where prosecution had no information as to defendant's specific location); Burgett v. State, 865 S.W.2d 594, 597 (Tex.App.-Fort Worth 1993, pet. ref'd) (concluding that difficulty in locating appellant did not amount to procrastination where State visited appellant's address, contacted his known associates, subpoenaed his wife's phone records and staked out her place of employment, checked vehicle registration records in all fifty states, and entered appellant's name as a fugitive in state and national databases). Appellant argues that the Dallas Sheriff's Office "would have taken steps" had they been informed by Detective Renfroe prior to March 2001 that appellant was in Guatemala. The record does not indicate, however, what those steps would have been or how such steps would have led to appellant's apprehension. Appellant further contends that increased contact with the U.S. Embassy in Guatemala might have led to his being located in February 2001 rather than March 2001. However, a decision not to explore a particular search avenue to the fullest extent possible does not render the overall search unreasonable or negligent. See Lott, 951 S.W.2d at 495 (finding that although detection of a mistake in Veterans' Administration records might have led police to defendant more quickly, search was not unreasonable or negligent). The cases relied on by appellant in support of his argument are distinguishable from this one because in each of those cases there was some evidence that the prosecution knew specifically where the defendant could be located, but failed to check on the defendant's status. See Doggett, 505 U.S. at 649-50 (government negligent because it knew fugitive was held in prison in Panama on drug charges, but failed to check status with Panamanian government); Pierce v. State, 921 S.W.2d 291, 294 (Tex.App.-Corpus Christi 1996, no pet.) (prosecution negligent because it had correct Houston address for defendant, but made no attempts to locate defendant there); Branscum v. State, 750 S.W.2d 892, 893-94 (Tex.App.-Amarillo 1988, no pet.) (prosecution negligent because it knew defendant was in Oklahoma mental hospital and assumed, without checking, that defendant was incompetent to stand trial). In this case, it was not until appellant was arrested and jailed for three murders in Guatemala in March 2001 that U.S. law enforcement officers became aware of appellant's location. An appellate court will not disturb the trial court's ruling on a motion to dismiss an indictment absent an abuse of discretion. Lott, 951 S.W.2d at 494. We conclude that the record in this case supports a determination that the State used reasonable diligence in its pursuit of appellant and was not negligent in seeking appellant's apprehension between June 28, 2005, and March 30, 2001. b. March 30, 2001 to July 29, 2004
Appellant asserts that the extradition proceedings initiated by the State could have been handled more expeditiously had the State "been familiar with Interpol procedures and resources." The State argues that the delay between March 30, 2001, the date the State learned of appellant's whereabouts, and July 29, 2004, the date appellant was placed into jail in Dallas, was due entirely to appellant's efforts in fighting his extradition and was not due to any negligence or failure of diligence on the part of the State. Therefore, the State contends, this portion of the delay was justified. The record shows that extradition proceedings were initiated by the State in April 2001. The State prepared and submitted all required documentation pertaining to the extradition and requested periodic updates on appellant's extradition appeals. Moreover, the State enlisted the assistance of the Office of International Affairs and the U.S. Ambassador to Guatemala in obtaining the necessary signatures on appellant's extradition paperwork. Appellant did not sign a waiver of extradition. When his extradition was granted by a Guatemalan court, he appealed the court's ruling. When he lost that appeal, he appealed again. Delay caused by acts of the accused that are beyond the control of the prosecution should not weigh against the State. Burgett, 865 S.W.2d at 597. Because appellant was in large part responsible for the delay from March 30, 2001, to July 29, 2004, that delay was justified and does not weigh against the State. c. July 29, 2004 to July 11, 2005
Appellant argues that even after he was placed in the Dallas County jail, there was further delay because the State tried a different person on the date originally scheduled for his trial. The State contends that appellant's trial was reset twice by agreement of the parties and without objection. Further, the State asserts, appellant filed his motion to dismiss on March 14, 2005, thereby adding to the delay. Had appellant not agreed to reset his trial date and not filed his motion to dismiss, the State argues, he would have had his trial on December 6, 2004, just over five months after he was placed into the Dallas jail. The State maintains that those five months of delay can be classified as a reasonable period for case preparation and should not weigh against the State. The record does not contain any evidence that appellant objected to the resetting of his case or that he was not in agreement with the resetting. Accordingly, the trial court reasonably could have concluded that the delay from July 29, 2004 to July 11, 2005, was valid and justified. 3. Assertion of Right
Although a defendant's failure to seek a speedy trial does not amount to a waiver of the speedy trial right, failure to seek a speedy trial makes it difficult for a defendant to prevail on a speedy trial claim. Barker, 407 U.S. at 532. A defendant's failure to make a timely demand for a speedy trial indicates strongly that he did not really want one and that he was not prejudiced by not having one. Dragoo, 96 S.W.3d at 314. The longer the delay becomes, the more likely it is that a defendant who really wanted a speedy trial would take some action to obtain one. Id. Thus, a defendant's inaction weighs more heavily against a violation the longer the delay becomes. Id. Further, when the failure to assert the right is made late and never heard until trial, it weakens all the other Barker factors because they are so dependant upon the assertion. Haney v. State, 977 S.W.2d 638, 643 (Tex.App.-Fort Worth 1998, pet. ref'd). A defendant's motivation in asking for a dismissal, rather than seeking a trial setting, may sometimes attenuate the strength of his claim. Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App. [Panel Op.] 1983). Asking for a dismissal, however, does not necessarily result in waiver of the claim. State v. Perkins, 911 S.W.2d 548, 553 (Tex.App.-Fort Worth 1995, no pet.). Defense counsel may legitimately feel that a long delay has caused his client so much prejudice that dismissal is warranted. Phillips, 650 S.W.2d at 401. Because a defendant's assertion of the right must be viewed in the light of the defendant's other conduct, each case must turn on its own facts. Burgett, 865 S.W.2d at 598. Appellant contends that there is no evidence he was aware of any arrest warrant having been filed against him prior to June 2001, when he was served with extradition papers. Therefore, he argues, he had no opportunity to assert his right to a speedy trial during that time. The State contends that, even assuming appellant did not know of the pending charge against him until June 2001, he did not assert his speedy trial right until almost four years later. Furthermore, the State argues, when appellant finally did assert his right, he sought a dismissal of the charge rather than asking for a trial. Accordingly, the State contends, this factor weighs heavily in favor of the State and substantially weakens the other Barker factors. After the State located appellant in Guatemala in March 2001, appellant fought extradition through two appeals over the course of three years. Further, although counsel was appointed for appellant in July 2004, his motion to dismiss for failure to afford a speedy trial was not filed until March 14, 2005, one week after his scheduled trial date. See Dragoo, 96 S.W.3d at 314-15 (finding that assertion of speedy trial right on eve of trial weighed strongly against defendant, where he was represented by counsel at all relevant times). We conclude appellant's failure to diligently assert his right to a speedy trial weighs heavily against him. 4. Prejudice Caused by Delay
Prejudice should be assessed in light of the interests a speedy trial is designed to protect: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) guarding against impairing the accused's defense by loss of exculpatory evidence and dimming memories. Barker, 407 U.S. at 532. "Of these forms of prejudice, `the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.'" Shaw, 117 S.W.3d at 890 (quoting Barker, 407 U.S. at 532). "Furthermore, with respect to the third interest, relating to the defendant's ability to defend himself, affirmative proof of prejudice is not essential to every speedy trial claim, because excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or even identify." Shaw, 117 S.W.3d at 890 (quoting Doggett, 505 U.S. at 655). "On the other hand, this presumption of prejudice to the defendant's ability to defend himself is `extenuated . . . by the defendant's acquiescence' in the delay." Shaw, 117 S.W.3d at 890 (quoting Doggett, 505 U.S. at 658). Appellant acknowledges that testimony of two eyewitnesses is strong enough to effectively foreclose a challenge to the sufficiency of the evidence. However, appellant asserts that there were at least three other persons present in two cars at the scene of the alleged murder. Thus, appellant argues, questions were effectively raised as to the possible motive and circumstances surrounding the killing. In addition, appellant asserts that evidence was apparently removed from one of Velasquez's boots by persons present at the scene, raising questions regarding the possibility of drug trafficking. Had a timely investigation been conducted by the defense, appellant argues, those avenues of inquiry "might well have been established." Appellant contends that when defense counsel was appointed in July 2004, any opportunity for a meaningful investigation was gone. The State argues that no presumption of prejudice is warranted in this case because appellant was the cause of the trial delay and because the State used diligence in attempting to bring him to trial. In the absence of a presumption of prejudice, the State asserts, appellant has failed to meet his burden to affirmatively establish that he was harmed from the delay in that his claim of lack of sufficient time for reasonable investigation is vague and unsupported. Even if a presumption of prejudice applies, the State argues, such prejudice is extenuated by appellant's active role in, and acquiescence to, the delay. The State further contends that appellant's claimed presumptive harm of lack of time for meaningful investigation is rebuttable in that five and one-half months is long enough to make a reasonable investigation into the case. Finally, the State asserts that the presumptive harm claimed by appellant is not sufficiently identified, and therefore does not satisfy the Barker requirement for harm. Although appellant argues that it might have been possible to establish alternative motives or circumstances regarding the killing, he does not make any showing that he exercised diligence in attempting to do so. See Burgett, 865 S.W.2d at 598 (finding that where appellant made no showing that he exercised due diligence to locate missing witness, he had not shown prejudice resulting from trial delay); Munoz, 991 S.W.2d at 829 (determining that bare assertion of dimming memories does not constitute "some showing" of an impairment to the defense). Accordingly, he has not shown that the delay weakened his ability to establish such alternative motives or circumstances. We conclude that because appellant has not shown prejudice caused by the delay, this factor does not weigh in appellant's favor. See Lott, 951 S.W.2d at 496 (finding that presumed impairment of defendant's defense did not outweigh the fact that he was largely responsible for the delay and fought extradition after being located). III. CONCLUSION
Applying the balancing test of Barker and the appropriate standard of review, we conclude that the trial court did not err in denying appellant's motion to dismiss for violation of the right to a speedy trial. The interval between appellant's indictment and his trial was long enough to be presumptively prejudicial. However, the record supports a determination that the State used reasonable diligence in its pursuit of appellant and was not negligent in seeking appellant's apprehension. Moreover, appellant fought extradition from Guatemala and agreed to the resetting of his trial date on two occasions. The record further shows that although appellant was informed of the charges against him in June 2001, his motion to dismiss for failure to afford a speedy trial was not filed until almost four years later. Finally, appellant articulated no prejudice attributable to the delay, and any presumption of prejudice is extenuated by his own responsibility for the delay. Accordingly, we decide appellant's sole issue against him. The judgment of the trial court is affirmed.