                                                                              ACCEPTED
                                                                          01-15-00367-CR
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                     12/7/2015 7:22:07 PM
                                                                    CHRISTOPHER PRINE
                No. 01 - 15 - 00367- CR                                            CLERK




    IN THE FIRST DISTRICT COURT OF APPEALS FILED IN
              AT HOUSTON, TEXAS        1st COURT OF APPEALS
                                           HOUSTON, TEXAS
                                                12/7/2015 7:22:07 PM
=============================================
                                      CHRISTOPHER A. PRINE
                                                       Clerk

          REYNALDO ZAMORA
                       Appellant

                           v.

          THE STATE OF TEXAS,
                       Appellee

=============================================
  Appeal from Convictions in Cause Numbers CR 87-0140,
     in the 22nd District Court of Hays County, Texas,
             Hon. Bruce Boyer, Judge Presiding
=============================================
                BRIEF FOR APPELLANT
=============================================

                   Respectfully submitted,

                   Law Office of Alexander L. Calhoun
                   State Bar No.: 00787187
                   4301 W. William Cannon Dr., Ste. B-150, # 260
                   Austin, TX 78749
                   Tele: 512/ 420 - 8850
                   Fax: 512/ 233- 5946
                   Cell: 512/731-3159
                   Email: alcalhoun@earthlink.net




             Oral Argument is Not Requested
             STATEMENT CONCERNING ORAL ARGUMENT

      Counsel believes the present case can be decided upon the briefs and that

oral argument will not significantly assist the Court in its review of the case.
                                      TABLE OF CONTENTS

STATEMENT CONCERNING ORAL ARGUMENT ............................................ I

TABLE OF CONTENTS .......................................................................................... ii

CERTIFICATE OF PARTIES ................................................................................. iii

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT OF THE CASE .................................................................................. 1

ISSUE PRESENTED ................................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ...................................................................... 12

POINT OF ERROR NUMBER ONE ...................................................................... 13

        THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
        SPEEDY TRIAL IN LIGHT OF THE EXTRAORDINARY PASSAGE OF TIME
        AND STATE’S LACK OF DILIGENCE IN LOCATING APPELLANT
        DESPITE HIS FREQUENT INCARCERATION.

CONCLUSION AND PRAYER ............................................................................. 23

CERTIFICATE OF SERVICE ................................................................................ 24

CERTIFICATE OF COMPLIANCE ....................................................................... 25




REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                                                 ii
                             CERTIFICATE OF PARTIES

       Pursuant to Rule 38.1(a), Tex.R.App. Pro., Appellant presents the following

persons who are parties to, or have an interest in the final judgment in this cause,

so that the Court may determine whether its members are disqualified or should

recuse themselves:

Mr. Reynaldo Zamora,                               Texas Department of Criminal Justice
TDCJ # 01989227                                    TDCJ Ellis Unit


Mr. Alexander L. Calhoun, App. Atty                4301 W. William Cannon Dr.,
                                                   Ste. B-150, # 260, Austin, TX 78749

Ms. Will Holgate, Trial Atty                       5837 B Hiline Road, Austin,
                                                   Texas 78734

Mr. Wes Mau, Dist. Atty                            Hays County Government Center,
                                                   712 South Stagecoach Trail,
                                                   Ste.2507, San Marcos, TX 78666

Mr. Brian Erskine, &                               Hays County Government
Raphael Guerrero, Asst. Dist. Attys                712 South Stagecoach Trail, Ste.
                                                   2507, San Marcos, TX 78666

Hon. Bruce Boyer Trial Judge                       Hays County Government Center,
                                                   712 South Stagecoach Trail,
                                                   San Marcos, TX 78666




REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                       iii
                                     INDEX OF AUTHORITIES

Constitutions:

Texas Const., Article I, § 10 .................................................................................... 13

U.S. Const., Amend. VI ........................................................................................... 13

U.S. Const., Amend. XIV ........................................................................................ 13


Cases:

Barker v. Wingo, 407 U.S. 514 (1972) ..................................... 12, 13, 16, 18, 19, 20

Cantu v. State, 253 S.W.3d 273 (Tex. Cr. App. 2008) ............................................ 13

Deluna v. State, 05-10-01339-CR (Tex.App. - Dallas 2012) (unpublished) .......... 17

Doggett v. United States, 505 U.S. 647(1992).............................................14, 19, 20

Ervin v. State, 125 S.W.3d 542 (Tex.App. - Hous. [1st Dist.] 2002)                                , 15, 16

Gonzales v. State, 435 S.W.3d 801 (Tex.Cr.App. 2014) ............................18, 19, 20

Harris v. State, 827 S.W.2d 949, 956 (Tex.Cr.App. 1992) ..................................... 14

Harris v. State, 986 S.W.2d 619 (Tex.App. - Tyler 1997) ...................................... 20

Klopfer v. North Carolina, 386 U.S. 213 (1967) ..................................................... 13

Maddux v. State, 825 S.W.2d 511 (Tex.App.-Hous. [1st Dist.] 1992) ................... 20

Moore v. Arizona, 414 U.S. 25 (1973) .................................................................. 19

McGregor v. State, 394 S.W.3d 90 (Tex.App. - Hous. [1st Dist.] 2012) .........13, 14

Phillips v. State, 650 S.W.2d 396 (Tex.Cr.App. 1983) ...............................15, 20, 21

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                                                  iv
Puckett v. State, 279 S.W.3d 434 (Tex.App. - Texarkana 2009)............................. 20

Rivera v. State, 990 S.W.2d 882 (Tex.App. - Austin 1999) .................................... 14

State v. Kuri, 846 S.W.2d 459 (Tex.App. - Hous. [14th Dist.] 1993) .................... 20

State v. Owens, 778 S.W.2d 135 (Tex.App. — Hous. [1st Dist.] 1989) ............... 21

State v. Smith, 76 S.W.3d 541 (Tex.App.- Hous. [14th Dist.] 2002) ..................... 18

Zamorano v. State, 84 S.W.3d 643 (Tex.Cr.App. 2002) ........................................ 14




REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                              v
TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:

       COMES NOW, before the Court, Appellant, by and through his attorney of

record, and pursuant to Rule 38.1, Tex.R.App.Pro., files this brief on appeal, and

would show the Court as follows:

                            STATEMENT OF THE CASE

       Appellant was charged with the felony offense of Aggravated Kidnaping.

[Clerk’s Record (“C.R.”): 6].         The jury convicted him of the charged offense.

[C.R.: 138 - 140].       Sentencing was held to the trial court, which assessed a

punishment at 60 years confinement in the Texas Department of Criminal Justice

(TDCJ). [C.R.:139].

       Pursuant to a motion for extension due to an incomplete record, this brief

will be timely if filed by December 7, 2015.

                                  ISSUE PRESENTED

Point of Error Number One

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
       SPEEDY TRIAL IN LIGHT OF THE EXTRAORDINARY PASSAGE OF
       TIME AND STATE’S LACK OF DILIGENCE IN LOCATING APPELLANT
       DESPITE HIS FREQUENT INCARCERATION.

                               STATEMENT OF FACTS

       The present case arises from the denial of Appellant’s motion for Speedy



REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                     1
Trial    due to the delay in prosecution of his 1987 charge for Aggravated

Kidnaping in Hays County, Texas. Appellant did not appear for trial in August

1987 after which the case lay dormant until 2013 when Appellant was finally

arrested on a warrant issued on the case by Hays County.

        A.    The Speedy Trial Hearing

        Following his apprehension in 2013, Appellant filed a Motion to Dismiss

for Lack of a Speedy Trial.          [C.R.: 19 - 25]. Appellant testified as the sole

witness at the hearing on his motion.          Appellant’s date of birth was March 28,

1954. [2 R.R.: 8]. In 1987, after the charges arose, he had been in a car accident

resulting in a 52-day coma. [2 R.R.: 9 - 10; 3 R.R.: 37].          The resulting brain

injuries from the coma affected his memory of events. [2 R.R.: 9 - 10; 3 R.R.:

38].    He had not shown up for trial in August 1987 because he had now known

about the trial setting, a residual effect of his injuries. [2 R.R.: 10].

        Appellant was subsequently arrested in Maverick County in 1992 for

Conspiracy to Possess Marijuana. [2 R.R.: 11, 12, 30 - 31; 3 R.R.: 18 - 19].       He

was identified in the booking records under both his brother’s name,         “Enrique

Jimenez Mata,” a Mexican national, as well as his own name “Reynaldo Ybarra

Zamora.”      [3 R.R.: 47; SX: 13]. When Appellant was arrested, the authorities

found in the car, 3 false identification documents which belonged to his brother.


REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                     2
[2 R.R.: 31; 3 R.R.: 24; 3 R.R.: 20, 44 - 45]. He was released from jail because

the authorities suspected him of being his brother, who was an illegal alien.       [2

R.R.: 11, 12, 30 - 31; 3 R.R.: 46]. The sheriff’s department released him to the

border patrol, which drove him to the international bridge and instructed him to

return to Mexico. [2 R.R.: 11; 3 R.R.: 45].

       Appellant was again arrested by the Austin Police Department for Indecent

Exposure in 2001.         [3 R.R.: 33, 51].       Documents submitted by the State, a

police department “Press Release” of the arrest, State’s Exhibit 15, and an APD

offense report, State’s Exhibit 31 - Exhibit F, reflect Appellant was arrested under

the name of “Reynaldo Zamora” with a date of birth of “3/28/1958.” [3 R.R.: SX

15, 31 (Attachment F)]. He was convicted and placed on probation. [8 R.R.: SX

31 (Attachment G)].         This probation was eventually revoked in October 2005

and he was sentenced to 30 days in the county jail. [8 R.R.: SX 31 (Attachment

K)].

       Also in 2001, Appellant was arrested and incarcerated in Franklin County,

Kentucky. [2 R.R.: 13 - 14, 22].          The booking sheet listed among his charges a

fugitive warrant. [2 R.R.: 14; SX 14]. He plead guilty to the local offense served

a 5 ½ month sentence. [2 R.R.: 15]. Despite the out-of-state detainer, the local

authorities released him from custody after Hays County did not seek extradition.


REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                     3
[2 R.R.: 15; 3 R.R.: 29 - 30, 47 - 48].

       Appellant then returned to Texas from Kentucky.        [3 R.R.: 49]. While

living in Austin, Texas, he checked with the Travis County Sheriff’s Office for

outstanding warrants and learned that there were no warrants from Hays County.

[2 R.R.: 16 - 17; 3 R.R.: 50 - 51].

       In 2002, Appellant was again arrested in Maverick County for the 1992

charge. [2 R.R.: 17 - 18]. He was found guilty after a trial and sentenced to 12

years imprisonment. [2 R.R.: 18 - 19; DX 1 & 2]. He was paroled from prison

in 2005. Prior to his release, the Board of Pardons and Paroles checked for

outstanding detainers and he “came up clean.” [2 R.R.: 20].

       After being released from prison, Appellant renewed his driver’s licence

without incident. He was aware that the Department of Public Safety routinely

ran warrant checks when renewing driver’s licences.       [2 R.R.: 20 - 21; 3 R.R.:

50].

       Appellant was again arrested in Austin in 2007. [3 R.R.: 34].        State’s

Exhibit 28, an Austin Police Department Press Release reflects he was arrested

under the name “Reynaldo Zamora” with a date of birth of “3/28/1954.” [3 R.R.:

32; 8 R.R.: SX 28]. An offense report from the Texas Attorney General’s

Fugitive Apprehension Unit           noted the existence of a 1986 Hays County


REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                  4
Aggravated Kidnaping case, but misstated that it resulted in a conviction and

sentence. [8 R.R.: 31 (Attachment I)].

       Appellant’s parole on the Maverick County conviction was revoked in 2008

and he was again incarcerated in the state prison system. [3 R.R.: 33]. He was

paroled again in 2010. The Board of Pardons and Paroles again reviewed him for

detainers, found none, and released him. [2 R.R.: 20].

       On September 7, 2013 Appellant was finally arrested by Hays County for

the 1987 charges. He was appointed an attorney on October 23 and the two met in

jail a week later, on October 30, 2013.         He was subsequently returned to TDCJ

for    four months, after which he was again returned to Hays County to face

charges. [2 R.R.: 27].

       The State submitted several documents in order to demonstrate that

Appellant has utilized several aliases and dates of birth over the years.    State’s

Exhibit 1, a 1972 judgment of conviction in Guadalupe County, and State’s

Exhibit 2, a related 10-print card reflect that Appellant’s first name was spelled as

“Ray.” [3 R.R.: 10, 11: 8 R.R.: SX 1 & 2].

       State’s Exhibit 3, a Guadalupe County magistration form, dating to 1978,

and State’s Exhibit 4, a 1978 Guadalupe County judgement of conviction also

listed his name as “Raynaldo Ybarra Zamora.” [8 R.R.: SX 3]. State’s Exhibit


REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                    5
6, a 10-print card from TDCJ identified him as “Reynaldo Zamora” with an aka

as “Ray” but stated his date of birth as “3-25-54.” [8 R.R.: SX 6].

       State’s Exhibit 9, his Hays County waiver of arraignment in the present

case listed him as “Reynaldo Zamora.” [8 R.R.: SX 9].

       State’s Exhibit 11, photos purportedly of Appellant by the Maverick County

Sheriff’s Department dating to 1992 listed the individual as “Enrique Mata

Jimenez” with a date of birth of “12-21-1958.”                An accompanying indigence

form for the Maverick County case recited Enrique Mata Jimenez as the defendant

and was purportedly signed by Mata.             [8 R.R.: SX 12].        State’s Exhibit 13, a

Maverick County jail print out, listed Enrique Jiminez Mata” as an escapee.

Notably the document also listed the “Reynaldo Ybarra Zamora” as an alias.

       Three identification cards seized by Maverick County during Appellant’s

1992 arrest, a Mexican driver’s licence, a Texas driver’s licence, and a State of

Texas certificate of birth, bearing the name “Reynaldo Ybarra Zamora” with a

date of birth of 3/28/54" were admitted.1 [3 R.R.: 24; 8 R.R.: SX 16].

       State’s Exhibit 14, a “News Release” from Franklin County, Kentucky law

enforcement listed Appellant as “Ray Ybarra Zamora.” It also noted that he was

a “fugitive” for which no bond was authorized. [8 R.R.: SX 14].


       1
           The Mexican ID spells Appellant’s middle name as “Ibarra” but is otherwise consistent
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                               6
       State’s Exhibit 18, booking photos from Appellant’s re-arrest in Maverick

County identified him as “Reynaldo Ybarra Zamora” with a date of birth of

“3/28/1954.” [3 R.R.: 26; 8 R.R.: SX 18]. The judgment of conviction for his

trial identified him under the name of “Reynaldo Ybarra Zamora” with an aka as

“Enrique Jimenez Mata.”           [3 R.R. 27; 8 R.R.: SX 19].   The accompanying

Maverick County 10-print card related to the judgment, however, spelled his name

as “Raymundo Ybarra Zamora” with a date of birth of “3/28/1954.”      [3 R.R. 27;

8 R.R.: SX 20].       A Franklin County law enforcement “News Release” dating to

a June 2003 arrest, State’s Exhibit 23, identified Appellant as “Ray Ybarra

Zamora.” [3 R.R.: 28 - 29; 8 R.R.: 23].

       State’s Exhibit 25, a State of Texas Pardons and Parole notice of offender

release, dated October 5, 2005 identified Appellant, “Reynaldo Ybarra Zamora”

with a date of birth of “3/28/54" as an impending parolee. [3 R.R.: 31; 8 R.R.:

SX 25].

       State’s Exhibit 30, a second State of Texas Pardons and Parole notice of

offender release, dated May 25, 2005 again identified Appellant as “Reynaldo

Ybarra Zamora” with a date of birth of “3/28/54."

       State’s Exhibit 31, a written response with documentary attachments, to


with the Texas documents.
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                7
Appellant’s Speedy Trial motion, was also admitted. [3 R.R.: 8 - 9; 8 R.R.: 31].

       Appellant contended that his defense was premised upon an alternative

suspect to the kidnaping – his brother – supported by witnesses who could have

provided alibis of his whereabouts in the time period that the offense had

occurred. He had a younger half-brother, “Enrique Mata Jiminez” – they shared

the same father, but different mothers – who lived in the Piedras Negras, Mexico.

[2 R.R.: 12 - 13; 2 R.R.: 28 - 29]. The brothers resembled one another. [2 R.R.:

25]. Jiminez, a Mexican national, and would use Appellant’s ID while in the

United States. [2 R.R.: 28 - 29].         Jiminez operated Appellant’s septic business

when Appellant worked out-of-state and used his driver’s licence to drive the

dump truck which used in the business. [2 R.R.: 25 - 26].           Appellant believed

that his brother had committed the offenses using Appellant’s identity while

Appellant was working out-of-state.          [2 R.R.: 26].   Appellant denied owning a

white Corvette, the suspect vehicle in the case, but his brother had owned such a

vehicle. [3 R.R.: 40 - 41]. Appellant had lost contact with his brother over the

years; he not been able to locate him for some period of time. [2 R.R.: 12 - 13].

His inquiries had proven fruitless because no one in the family knew of his

brother’s whereabouts. [2 R.R.: 13].

       There were several other witnesses with whom he had worked who could

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                     8
have testified to his being out-of-state during the relevant time period but who

were no longer available as witnesses.            In 1986 - 1987, Appellant had been

working for a long time employer, Dr. Darryl Havert, through whom he met

another individual, Colonel Sanders.           [2 R.R.: 21, 23; 3 R.R.: 37, 40].     He

believed that he had been working for Sanders out-of-state at the time of the

offense in late 1986. [2 R.R.: 22]. Appellant learned that Sanders had died in

2007. [2 R.R.: 21 - 22; 3 R.R.: 35 - 36].          Another witness, Dr. Havert, had

died from a stroke in 2007. [2 R.R.: 23 - 24; 3 R.R.: 36]. Havert would have

been able to testify about Appellant’s whereabouts during the period which the

charges arose.       Havert owned two small airplanes and provided transport for

Appellant to and from Colorado as well as Kentucky, where Havert owned a ranch

on which Appellant worked. [2 R.R.: 23].            There had also been a private pilot,

employed by Havert to fly the planes between San Antonio and Kentucky, who

could have testified on Appellant’s behalf, but whose name Appellant had

forgotten over time. [2 R.R.: 24 - 25].

       The trial court took the matter under advisement, and ultimately denied the

motion, noting on the docket sheet that the delay was “attributable to Δ’s own

actions, lack of previous request for Speedy Trial; lack of prejudice to Δ under all

attendant circumstances.” [C.R.: 155].

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                       9
       On the morning of trial, just before voir dire, the State advised the trial

court of additional evidence not disclosed during the pre-trial Speedy Trial

hearing.     The prosecutor made a proffer that he had learned from the district

attorney’s office officer manager that she had received a fax from the parole

department in 2010, inquiring into the status of the pending case.   [4 R.R.: 17 -

18].    The office manager reported the fax to the chief of the family justice

division – not the same prosecutor as the one making the proffer.       The DA’s

Office, which was attempting to locate and re-create a case file, did not respond

to TDCJ and Appellant was released from prison. The DA’s Office did not re-

create a file until Appellant was arrested in 2013 on an “active warrant.” [4 R.R.:

18 - 19].

        Appellant re-urged the motion to dismiss, which the trial court denied. [4

R.R.: 22 - 25].

       B.     Trial on the Merits

       The evidence at trial showed nine-year-old G.G. and her friend, D.S. were

abducted on December 20, 1986 in Buda, Hays County, Texas. While walking to

a neighborhood friend’s home, the suspect drove up in a white Corvette, identified

himself as the friend’s uncle, and asked where she lived. [5 R.R.: 108 - 109; 6

R.R.: 22 - 23, 28].        He asked for help locating the house and when the girls

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                 10
expressed hesitancy in getting into his car, he identified himself as “Reynaldo

Zamora.” [6 R.R.: 28 - 31, 74, 76 - 77, 80 - 81]. The girls got into the car and

tried to find the house. [6 R.R.: 32]. While driving through the neighborhood, the

suspect announced he needed gas and drove the girls to a gas station along the

highway, where he bought D.S. a hamburger. [5 R.R.: 109, 111; 6 R.R.: 34 - 37,

38]. He drove them back to their neighborhood. D.S. exited the car, but as G.G.

started to exit, the suspect pulled her back in and drove off. [5 R.R.: 109; 6 R.R.:

44 - 45].     He ultimately drove G.G. to a spot along the side of the highway,

parked and fondled her breast and crotch, then drove her back. [6 R.R.: 49 - 51].

He dropped G.G. off at the school bus stop and she ran home and related the

incident. [6 R.R.: 52 - 57].

       Appellant was identified as a suspect during the investigation. Members of

the Hays County Sheriff’s Office went to Appellant’s house with an old

unexecuted warrant, and while searching the home found Appellant hiding in the

shower. [5 R.R.: 170 - 174; 186; 8 R.R.: SX 12 (Michael Dees Deposition)].

       The officers assigned to the investigation took D.S. and G.G. on a drive by

of Appellant’s house following Appellant’s arrest, at which time both girls

identified the white Corvette parked in the drive way as the suspect’s vehicle. [5

R.R.: 177 - 179; 6 R.R.: 58].

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                  11
        The girls could not initially identify a suspect.        [5 R.R.: 190].    After

Appellant’s arrest, they were again shown a lineup and each selected his

photograph. [5 R.R.: 143, 182 - 183, 193; 6 R.R.:             59 - 60; SX 12 (Michael

Dees Deposition)].

        Records of Appellant’s credit card matched records of a purchase made at

the gas station convenience store where the suspect allegedly made a purchase.

[5 R.R.: 77 - 81, 194 - 196; SX 9].

        After Appellant was arrested, he posted bond and was released from jail. [5

R.R.: 66 - 67; 6 R.R.: 95 - 97]. He did not appear for the August 1987 trial date.

[5 R.R.: 71 - 72, 74].

        The parties stipulated that over passage of time, the State had lost numerous

items of evidence, including: photographs, hair and fingerprint samples, photos of

the vehicle as well as the vehicle itself, recorded witness statements, the gas ticket

and photos of Appellant.        [5 R.R.: 149 - 150; SX 13]. They also stipulated that

hair samples taken from the girls and subjected to microscopic analysis of hair

samples taken from the corvette did not have matching characteristics. [5 R.R.:

151].

        The jury convicted Appellant of Aggravated Kidnaping. [7 R.R.: 56]. The

punishment phase was held to the trial court.             The court rejected Appellant’s
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                      12
request for a affirmative finding on the issue of “safe release” and assessed a

sentence of 60 years imprisonment. [7 R.R.: 93 - 95].

                         SUMMARY OF THE ARGUMENT

       1.     The trial court erred in denying Appellant’s motion to dismiss the

case due to the violation of his right to Speedy Trial by incorrectly weighing the

relevant factors under Barker v. Wingo, 407 U.S. 514 (1972). The testimony and

documentary evidence developed in the Speedy Trial hearing reflected that while

Appellant had not appeared for the 1987 trial date, and not clearly asserted his

right to a Speedy Trial at that time, in the intervening years, he was frequently

incarcerated in Texas, either in TDCJ, or in county jails under his own name and

date or birth, or was held out-of-state under a Texas detainer, but not extradited by

the State. Further, evidence was presented which demonstrated the prosecution

ignored a direct inquiry by parole officials regarding Appellant’s fugitive status.

The State’s lack of efforts to locate and bring Appellant to trial, given the passage

of years, significantly outweighs Appellant’s lack of assertion of his right.

Additionally, the trial court failed to presume prejudice given the number of years

in which the State did not seek to apprehend Appellant. In the alterative, the trial

court erroneously concluded Appellant had not shown prejudice despite testimony

of missing and unavailable witnesses. The State’s lack of diligence, coupled with
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                   13
the demonstrated prejudice outweigh the sole Barker factor in favor of the State.

                               GROUND FOR REVIEW

Ground for Review Number One

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
       SPEEDY TRIAL IN LIGHT OF THE EXTRAORDINARY PASSAGE OF
       TIME AND STATE’S LACK OF DILIGENCE IN LOCATING APPELLANT
       DESPITE HIS FREQUENT INCARCERATION.

       The Sixth Amendment and Fourteenth Amendments to the United States

Constitution and Article I, § 10 of the Texas Constitution, guarantee an accused

the right to a speedy trial.    Barker v. Wingo, 407 U.S. 514, 515 (1972); Klopfer

v. North Carolina, 386 U.S. 213 (1967); Cantu v. State, 253 S.W.3d 273, 280 &

n.16 (Tex. Cr. App. 2008); and, McGregor v. State, 394 S.W.3d 90 (Tex.App. -

Hous. [1st Dist.] 2012). A court analyzes speedy trial claims on an ad hoc basis

by weighing and then balancing four factors: (1) length of the delay, (2) reason for

the delay, (3) assertion of the right, and (4) prejudice to the accused. Barker, 407

U.S. at 530.     The inquiry is triggered when the delay between arrest or formal

accusation and trial is unreasonable enough to be "presumptively prejudicial."

Cantu, 253 S.W.3d at 281. The burdens with regard to the factors differ between

the parties.    While the State bears the burden of justifying the length of delay,

the defendant bears the burden of proof that he asserted the right to a Speedy

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                    14
Trial, and an initial burden of making a prima facie showing of potential

prejudice.    Cantu, 253 S.W.3d at 280;           McGregor, 394 S.W.3d at 112; and,

Rivera v. State, 990 S.W.2d 882, 892 (Tex.App. - Austin 1999).         While no one

particular factor is talismanic, Barker, 407 U.S. at 533, the Court of Criminal

Appeals has held that the defendant's burden "'varies inversely' with the State's

degree of culpability for the delay"; thus, "the greater the State's bad faith or

official 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." Cantu, 253 S.W.3d at 280 - 281; and, McGregor, 394 S.W.3d at 112 (citing

Cantu).

       A.     Length of Delay

       There is no set time period to trigger a Speedy Trial analysis, but Texas

courts have applied as a rule of thumb that an eight-month delay is generally

sufficient to trigger the inquiry.      Zamorano v. State, 84 S.W.3d 643, 649 n.26

(Tex.Cr.App. 2002); and, Ervin v. State, 125 S.W.3d 542, 546 (Tex.App. - Hous.

[1st Dist.] 2002) (citing Harris v. State, 827 S.W.2d 949, 956 (Tex.Cr.App.

1992)).      Compare, Doggett v. United States, 505 U.S. 647, 652 n. 1(1992)

(observing that majority of courts hold delay of one year is sufficient to trigger

inquiry). There was evidence that Appellant had absconded from Hays County in
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                 15
late 1987, subsequently arrested in Maverick County, Texas in 1992, and then

either released from custody or escaped. It may be debatable whether this time

should count toward the length of the delay, but in essence this period of time is

largely irrelevant to the determination of whether the length of the delay was

presumptively unreasonable.

        What is indisputable is that as of 2002, Appellant was in the custody of the

State of Texas, incarcerated in Maverick County, Texas, tried and sentenced to 12

years incarceration in the Texas Department of Criminal Justice.2 [8 R.R.: SX 18,

19, 20]. He was sentenced under his own name, the same one as he was charged

under in Hays County – Reynaldo Ybarra Zamora – and date of birth – 3/28/1954.

[8 R.R.: 19, 20]. The evidence was undisputed that Hays County did not seek to

arrest him until September 2013 - 11 years later. [2 R.R.: 27]. This delay, dating

from 2002 is presumptively unreasonable and sufficient to initiate a Speedy Trial

inquiry.

        B.      Reason for Delay

        Because the State is obligated to expeditiously seek to try a defendant, it


        2
            The record established that Appellant was in the constructive custody of the Texas two years
earlier than this, when he was incarcerated in Franklin County, Kentucky. The State submitted
documentary evidence from the Franklin County, Kentucky Sheriff’ that Appellant was in the custody of
the Franklin County as of May 11, 2000 for charges, including a fugitive warrant for which no bond was
authorized. [8 R.R.: SX 14]. Appellant testified he was ultimately released from custody when the
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                                      16
bears the burden of justifying a presumptively unreasonable delay.             Ervin, 125

S.W.3d at 546 (citing Phillips v. State, 650 S.W.2d 396, 400 (Tex.Cr.App. 1983).

The Court assesses the reason for the delay against the State depending upon the

degree of culpability in failing to provide a Speedy Trial.           For neutral reasons,

such as a missing State witnesses, the delay is not counted against the State.

Barker, 407 U.S. at 531. In contrast, a deliberate prolongation weighs heavily

against the State, while negligence is also counted against the State, albeit not as

heavily as deliberate misconduct.                Barker, 407 U.S. at 531; and, Ervin, 125

S.W.3d at 546.

        The prosecution as much as conceded negligence on the issue with the trial

court. [6 R.R.:19 - 20]. Independent of this, the undisputed facts demonstrated the

State, at a minimum, failed to exercise diligence in seeking to prosecute Appellant

until 2013.         Even conceding the time period in which Appellant was

unapprehended by the authorities, it is nonetheless clear that from 2001, he was

under the direct or constructive custody of the State.            In early 2001, he was in

Kentucky custody, but held on an out-of-state detainer; the prosecution offered no

explanation for its failure to seek extradition. From 2002 onward, Appellant was

consistently in and out of TDCJ, under his own name, and correct date of birth.


State of Texas
REYNALDO       declined
           ZAMORA       to seek his extradition. [2 R.R.: 15].
                    V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                        17
And he was repeatedly paroled under this name and date of birth.          Again, the

State offered no explanation for its failure to obtain his presence for trial.    In

2007, he was arrested in Austin under his own name and date of birth.         Again,

the State offered no explanation for its failure to obtain his presence for trial in

Hays County. While contending Appellant was using an alias for this time period,

the State’s own evidence – documents generated by law enforcement – reflects

that that law enforcement was aware of variations in Appellant’s name, as well as

the possible use of aliases.       Yet again, the State offered no explanation of the

warrants for Appellant’s arrest and whether – or why – they did not include

known aliases and spelling variations of his name.

       These instances of         prosecutorial negligence weigh against the State

because the State has the affirmative obligation to make reasonable efforts to

bring a defendant to trial, even if he is a fugitive. Compare, Deluna v. State, 05-

10-01339-CR (Tex.App. - Dallas 2012) (unpublished) (noting that during time

period defendant was unapprehended, he had been incarcerated in jail and subject

to being located through reasonable diligence).

        Also significant, the prosecutor’s proffer made on the morning of trial

reflected at least one occasion in which the State simply disregarded the

opportunity to secure Appellant’s presence for trial. Parole officials contacted the
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                   18
Hays County District Attorney’s Office in 2010 inquiring on a detainer, but the

office did not respond, resulting in Appellant’s release.          The context of the

revelation – a proffer        from information conveyed by another employee –

precluded further inquiry into this, but supports an inference that the Parole

Department might have contacted the office on earlier occasions prior to

Appellant’s release from prison. The State’s inaction in light of the contact by the

Parole Department is not mere negligence - it strides into deliberate misconduct,

and should be treated more heavily in the weighing process than the States’ lack

of diligence.

       C.       Assertion of the Right to Speedy Trial

       There is no evidence in the reconstructed court file that Appellant filed a

request for a Speedy Trial in 1987.         He filed his request to dismiss for lack of a

Speedy Trial on August 4, 2014. [C.R.: 19 - 25]. The lack of an initial demand for a

Speedy Trial is a factor which counts against a defendant. Barker, 407 U.S. at 531;

and, Gonzales v. State, 435 S.W.3d 801, 810 - 811 (Tex.Cr.App. 2014).            It is not

determinative, however, as the Supreme Court has noted that the State bears the

ultimate burden of ensuring that the right to due process has been accorded.          Id.,

407 U.S. at 527.       Accordingly,      “[a] defendant has no duty to bring himself to

trial.” Ibid. See also, State v. Smith, 76 S.W.3d 541, 549 (Tex.App.- Hous. [14th
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                      19
Dist.] 2002) (“A defendant has no duty to bring himself to trial, and the primary

burden rests upon the courts and the prosecution to insure that cases are brought to

trial.”).   While the absence of proof in the reconstructed file weighs against

Appellant,    it must be measured in light of both the State’s lack of any efforts to

secure Appellant’s presence during the years he was incarcerated in TDCJ, coupled

with the State’s failure to seek Appellant’s extradition from Kentucky, as well as

the significant delay from the period where it is indisputable that Appellant was in

State custody and subject to being brought to trial in Hays County.

       D.     Prejudice.

       As a general matter, the defendant has the burden of making a prima facie

showing of prejudice.        Barker, supra. Under circumstances, where the delay is

long enough and attributable to the State, it is appropriate to presume prejudice

without any specific prima facie showing by the defendant. Doggett, 505 U.S. at

657; and, Gonzales, 435 S.W.3d at 812 (“In certain instances, the length of delay

may be so excessive that it presumptively compromises the reliability of a trial in

ways that neither party can prove or identify. . . . In such instances, the defendant is

absolved from the requirement to demonstrate prejudice.”) (internal quotations

omitted). See also, Moore v. Arizona, 414 U.S. 25, 26 (1973) (“Barker v. Wingo

expressly rejected the notion that an affirmative demonstration of prejudice was
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                    20
necessary to prove a denial of the constitutional right to a speedy trial.”).

Presumptive prejudice occurs in the context of the length of the delay coupled with

the State’s negligence. In Doggett, the Court applied a presumption of prejudice

where the between indictment and apprehension lasted 8 ½ years, “ six times as

long as that generally sufficient to trigger judicial review . . .”   Id., 5905 U.S. at

658.

         In Appellant’s case, he was in constructive custody in Kentucky as of 2001,

but the State did not seek his extradition at that time. He was in the custody of the

State of Texas as of 2002, but the prosecution did not seek a bench warrant at that

time, or for any of the periods in which he was in a Texas prison. In fact, as

divulged by the prosecutor on the morning of trial, the Texas Board of Pardons and

Paroles actually contacted the office in 2010 to ascertain the Appellant’s status in

Hays County, but the District Attorney’s Office failed to take any action.      He was

not arrested on a warrant from Hays County until 2013. This is well beyond the

time that the Supreme Court found sufficient to presume prejudice in Doggett,

supra.

         In the alternative, even if the presumption of prejudice does not apply in this

particular case, Appellant established a sufficient prima facie showing of prejudice

to which the State failed to rebut.        A defendant need not show actual prejudice,
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                     21
however. Phillips, 650 S.W.2d at 401;              Puckett v. State, 279 S.W.3d 434, 437

(Tex.App. - Texarkana 2009);          Rivera, 990 S.W.2d at 892; Harris v. State, 986

S.W.2d 619, 625 (Tex.App. - Tyler 1997); and, State v. Kuri, 846 S.W.2d 459, 467

(Tex.App. - Hous. [14th Dist.] 1993). This follows from the difficulty, as a result of

excessive delay, for either party to prove or identify the way in which the reliability

of trial has been compromised by the passage of time.           See Doggett, 505 U.S. at

655; and, Gonzales, 435 S.W.3d at 812.                Where a witness dies or disappears

during a delay, the prejudice is obvious. Barker, 407 U.S. at 532. This Court has

explained that in the case of a missing witness, “[t]o show prejudice, a defendant

need only show that the prospective witness was material to the case, not that the

witness would have testified favorably to the defense.” Maddux v. State, 825

S.W.2d 511, 517 (Tex.App.-Hous. [1st Dist.] 1992, rev’d on other grounds, 862

S.W.2d 590 (Tex.Cr.App. 1993)) (citing Phillips, 650 S.W.2d at 402; and, State v.

Owens, 778 S.W.2d 135, 138 (Tex.App. — Hous. [1st Dist.] 1989)).

       In the present case, Appellant made a prima facia showing of prejudice. He

testified about a plausible alternative suspect whose whereabouts were unknown by

the time of trial. He also advised of three potential material witnesses who could

possibly have provided alibis for the time period in question. Two were dead, and

one, the pilot employed by Havert, was unknown and plainly unlocatable due to the
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                     22
passage of time. The State addressed none of this evidence at the hearing.

       E.     The balance of the Speedy Trial Factors weighs in favor of reversing
              the trial court’s order denying the motion to dismiss.

       This court balances the relevant factors of a Speedy Trial claim on a de novo

basis. Gonzales, 435 S.W.3d at 809; and, McGregor, 394 S.W.3d at 112. The

trial court made not specific fact-findings, but concluded Appellant had failed to

make a showing on three Barker factors – invocation of the right, the reason for the

delay, and prejudice. The court erred on two of these factors – the reason for the

delay and prejudice – and so it necessarily applied the Barker test incorrectly.

While there is no evidence Appellant timely demanded a Speedy Trial, a factor

which weighs against Appellant, the State made no efforts to apprehend him in the

years following his bond forfeiture, even though he was incarcerated under his own

name and date of birth, or under known aliases, since 2001.             Indeed, the

unrebutted evidence establishes that the State failed to seek his extradition from

Kentucky in 2001 despite the out-of-state detainer, and ignored the Parole Board’s

inquires in 2010. This prolonged negligence coupled with affirmative misfeasance,

should weigh heavily when measured against Appellant’s own failure to assert his

right to a Speedy Trial.

       In its cursory conclusion that Appellant had proven no prejudice, the Court

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                 23
failed to address Doggett’s injunction that a sufficiently prolonged and unjustified

delay obviates the need to demonstrate prejudice. In Appellant’s case, assuming a

date of 2001, the State’s unjustifiable delay in seeking prosecution was 12 years.

This was more than sufficient to justify presumptive prejudice under Doggett.

       Alternatively, the trial court erred in concluding Appellant had not proven

prejudice.      Appellant presented sufficient and unrebutted prima facie proof of

prejudice through missing and deceased witnesses. The witnesses – his brother,

Havert, Sanders, and the pilot were material insofar as they related to an alternative

suspect coupled with Appellant’s absence from the state, and were unavailable due

to the passage of time.       Even in the absence of presumed prejudice, Appellant

made a sufficient showing of prejudice to weigh the balance of the Barker factors in

favor of Appellant.

       This Court should conclude the trial court erred in its denial of Appellant’s

motion to dismiss for violation of his Speedy Trial right.

                                  Conclusion and Prayer

       WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

this Honorable Court reverse Appellant’s conviction, remand the case to the trial

court with instructions to dismiss the case for violation of the right to a Speedy

Trial, any other such relief to which Appellant may be entitled.
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                   24
Respectfully submitted,


Law Office of Alexander L. Calhoun
4301 W. William Cannon Dr., B-150, # 260
Austin, TX 78749
Tele: 512/ 420- 8850
Fax: 512/ 233-5946
Cell: 512/731-3159
Email: alcalhoun@earthlink.net


BY:__/s/ Alexander L. Calhoun ____
   Alexander L. Calhoun
   State Bar No.: 00787187

    Attorney for Appellant, Reynaldo Zamora




REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-
CR
                             CERTIFICATE OF SERVICE

       I hereby certify that on December 8, 2015, a copy of the above and

foregoing Appellant’s Brief has been served upon the Hays County District

Attorney's Office by United States Mail at the following address:

Hays County District Attorney
Hays County Government Center
712 South Stagecoach Trail, Ste. 2507
San Marcos, TX 78666.

                                                  /s/ Alexander L. Calhoun
                                                Alexander L. Calhoun




REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                             26
                         CERTIFICATE OF COMPLIANCE

       Pursuant to Tex.R.App.Pro. Rule 9.4, I hereby certify that the foregoing

appellate brief has been prepared in Times New Roman typeface in 14 point type

and consists of 6036 words.


                                       /s/ Alexander L. Calhoun
                                    Alexander L. Calhoun




REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                            27
