Opinion issued August 9, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00897-CR ——————————— ENRIQUE CHAVEZ AGUIRRE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 950986
MEMORANDUM OPINION
A jury convicted Enrique Chavez Aguirre of aggravated sexual assault of a
child under 14 years of age. See TEX. PENAL CODE § 22.021(a)(1)(B). The court
assessed punishment at 30 years’ imprisonment. On appeal, Aguirre argues that he should have been granted a new trial due to his trial counsel’s failure to assert his
Sixth Amendment right to a speedy trial.
Finding no reversible error, we affirm the trial court’s judgment.
Background
Appellant Enrique Chavez Aguirre is a Mexican citizen. In 2003, he lived in
Houston with his girlfriend. Four children lived in the house with them: Aguirre’s
son, Enrique Jr., and his girlfriend’s three children, one of whom is the
complainant in this case. One day the complainant, who was 11 years old at the
time, reported to a friend and to a teacher that Aguirre had touched her
inappropriately. The school reported the incident, and Child Protective Services
brought the complainant to the Children’s Assessment Center for an interview and
medical exam. At this interview, the complainant disclosed that on more than one
occasion Aguirre had placed his mouth on her vagina, and he had sexually
assaulted her sister. Aguirre was charged with aggravated sexual assault of a child,
but he disappeared soon after the complainant reported the incident.
In 2013, Aguirre was arrested pursuant to the 10-year-old warrant. Aguirre’s
trial counsel did not object to the lack of a speedy trial, and the factual
circumstances of the arrest were not discussed at trial. The jury found Aguirre
guilty of aggravated sexual assault of a child under 14 years of age. Enrique Jr.
testified during the punishment stage on behalf of his father. After the accusations
2 were originally made against his father, Enrique Jr. moved to Mexico with his
uncle, and he did not see his father while living there. The court imposed a
sentence of imprisonment for 30 years.
Aguirre filed a motion for new trial, asserting among other issues that his
trial counsel was ineffective for not raising a speedy-trial claim. The motion
included an affidavit from Enrique Jr. stating that Aguirre had applied to renew his
permanent residency card in 2012 and was unaware of the pending indictment
against him. This affidavit stated that in November 2012, Aguirre hired an
immigration attorney from McAllen, Texas. It did not definitively state whether
Aguirre met with the attorney in person. Also attached to the motion were an
immigration appointment notice for December 28, 2012 in Las Vegas, Nevada, and
a copy of the approved residency card, which was in the name of Enrique Aguirre
Chavez, rather than Enrique Chavez Aguirre.
The trial court held a hearing on this motion. The only witness was
Aguirre’s trial counsel. Trial counsel admitted after examination by Aguirre’s
appellate counsel that he had not researched the law relating to the right to a
speedy trial for this case, beyond examining one Supreme Court opinion. He also
testified that he had been a criminal lawyer for 32 years, and he had represented
clients in roughly 300 trials.
3 Trial counsel further testified that after speaking to his client and his family,
he understood that Aguirre intentionally left Harris County and fled to Mexico
after the charges were filed in 2003. Trial counsel stated that he did not elicit
testimony on this subject because he did not want to open the door to cross-
examination as to why Aguirre left the country. In response to the suggestion that
Aguirre may have been living in Nevada or Texas at some point during the 10
years that the warrant was pending, trial counsel testified that he “had no
knowledge from anybody that he . . . was living in Henderson, Nevada, or that he
was living [in] the United States at all during this time.” Counsel went on to
explain that, based on his conversations with Aguirre and his brother, he did not
believe that a speedy-trial claim was a “meritorious defense” for this case and his
decision not to pursue the claim was a strategic one.
The trial court denied the motion for new trial and read its findings of fact
and conclusions of law into the record. The court concluded that trial counsel’s
decision not to litigate the speedy-trial issue “was based upon reasonable trial
strategy” and was made with sufficient knowledge of the relevant law. The court
also found that trial counsel did not have any knowledge or information that
Aguirre lived in the United States at any time between his 2003 indictment and his
2013 arrest.
4 The trial court briefly analyzed the factors involved in the analysis of a
speedy-trial claim and found that they were not satisfied. The court found that the
reason for the delay between the indictment and arrest was that Aguirre “left the
jurisdiction to avoid arrest and prosecution for the offenses” in question and that he
did not timely assert his right to a speedy trial or show prejudice. The trial court
also found that there was no evidence of negligence on the part of the State in the
delayed arrest, because the name on the immigration documents was “Enrique
Aguirre Chavez” rather than Enrique Chavez Aguirre. The trial court concluded
that trial counsel’s performance was not deficient and that had the speedy-trial
issue been raised, the trial’s outcome would not have been different. Aguirre
appealed.
Analysis
On appeal, Aguirre asserts that his trial counsel’s failure to litigate a speedy-
trial claim for his case was ineffective assistance of counsel. He further contends
that the trial court erred in denying his motion for new trial on that basis. These
two issues are effectively the same for the purposes of our review. Because
Aguirre made his claim of ineffective assistance of counsel in a motion for new
trial, this court must determine whether the trial court erred by denying that
motion. See Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); Lopez v.
State, 428 S.W.3d 271, 278 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d). An
5 appellate court reviews a trial court’s denial of a motion for new trial for abuse of
discretion, and it will only reverse if the trial judge’s opinion was “clearly
erroneous and arbitrary.” Riley, 378 S.W.3d at 457. The appellate court must view
all evidence in the light most favorable to the trial court’s ruling and presume that
the trial court made all reasonable factual findings in support of the ruling that are
supported by the record. State v. Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App.
2014). This court cannot substitute its own judgment for that of the trial court and
must uphold the trial court’s ruling if it is within the zone of reasonable
disagreement. Riley, 378 S.W.3d at 457.
This court also must give deference to the trial court’s determination of
historical facts when based solely on affidavits, regardless of whether the affidavits
are controverted. Id. “The trial court is free to disbelieve an affidavit, especially
one unsupported by live testimony.” Id. When there is a mixed question of law and
fact that turns on “an evaluation of credibility and demeanor,” the trial court’s
findings are entitled to almost total deference. Id. at 458.
The Sixth Amendment does not require merely that a criminal defendant
have an attorney appointed, but that the lawyer also gives reasonably effective
assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984). In order to demonstrate that trial counsel was ineffective, an appellant must
demonstrate that: “1) trial counsel’s performance was deficient because it fell
6 below an objective standard of reasonableness; and 2) a probability sufficient to
undermine confidence in the outcome existed that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Rylander v. State,
101 S.W.3d 107, 109–10 (Tex. Crim. App. 2003).
A reviewing court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Nava v. State, 415 S.W.3d
289, 307–08 (Tex. Crim. App. 2013). An appellant must “overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Ex parte Ellis, 233 S.W.3d 324, 330 (Tex. Crim.
App. 2007) (quoting Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App.
1992)). The mere fact that an attorney identifies a particular strategy does not
prevent us from determining that a specific act or omission was outside the range
of competent assistance. See id. However, reviewing courts must “avoid the
deleterious effects of hindsight” and find deficient performance only when “no
reasonable trial attorney would pursue such a strategy under the facts” of a case.
Id. at 330–31.
Trial counsel has a duty to become acquainted with the facts of the case and
conduct a reasonable investigation. Strickland, 466 U.S. at 691, 104 S. Ct. at 2066;
Ex parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983) (“It is fundamental
7 that an attorney must have a firm command of the facts of the case as well as the
law before he can render reasonably effective assistance of counsel.”). “Strickland
does not require defense counsel to investigate each and every potential lead” but it
does require a strategic decision based on a “thorough understanding of the
available evidence.” Ex parte Woods, 176 S.W.3d 224, 226 (Tex. Crim. App.
2005); see also Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003).
A speedy trial is guaranteed to the accused by the Sixth and Fourteenth
Amendments to the Constitution, and the sole remedy when the accused is
deprived of this right is dismissal. See Barker v. Wingo, 407 U.S. 514, 522, 92 S.
Ct. 2182, 2188 (1972). A determination of whether a defendant has been deprived
of this right requires the weighing and balancing of four factors identified by the
Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (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 bears the burden of justifying the length of the delay
between accusation and trial, while the defendant must prove the assertion of the
right and show prejudice. Cantu, 253 S.W.3d at 280. 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
8 speedy trial. Id. at 280–81. An appellant’s “failure to diligently and vigorously
seek a rapid resolution [to the prosecution] is entitled to ‘strong evidentiary
weight.’” Id. at 284 (quoting Barker, 407 U.S. at 531, 92 S. Ct. at 2192).
Aguirre argues on appeal that trial counsel did not conduct a reasonable
investigation of the facts or law relating to his potential speedy-trial claim. He
asserts that the immigration documentation shows that he had contact with the
federal government, and that the affidavit attached to the motion for new trial
proves that Aguirre visited his son in McAllen, Texas. Aguirre suggests that this
shows that the State was negligent in its attempts to find him and bring him to trial.
He asserts that this combined with the inherent prejudice in the 10-year delay
would have led to a successful speedy-trial claim if trial counsel had pursued one.
However, the trial court made explicit factual findings that directly
controverted the premises of this argument. The trial court found that Aguirre left
the jurisdiction to avoid prosecution, and it determined that there was no evidence
in the record of the circumstances of his arrest or where he was living during the
10-year period. Aguirre’s name was different on his immigration documents, and
the court found that this (rather than the State’s negligence) was one of the causes
of the delay in arresting him. Because these findings of historical fact are
supported by the record, we must defer to them. See Thomas, 428 S.W.3d at 103–
04.
9 In its ruling on the motion, the trial court also determined several mixed
questions of fact and law which turned on its evaluation of “credibility and
demeanor.” Riley, 378 S.W.3d at 458. Key among these was its finding that trial
counsel’s decision not to pursue a speedy-trial claim was a reasonable strategic
decision. Because Aguirre did not litigate a speedy-trial claim, this court cannot
review that claim on the merits. See TEX. R. APP. P. 33.1. However, an examination
of how the Barker factors could apply to this case is helpful in determining
whether any reasonable attorney would choose not to assert a speedy-trial claim,
and as a result whether the record supports the trial court’s findings that counsel
was not deficient.
The first Barker factor—length of the delay—would weigh in Aguirre’s
favor. As acknowledged by the trial court, a delay of 10 years is presumptively
prejudicial. See Cantu, 253 S.W.3d at 281 (noting that while there is no set time
element that triggers the analysis, a 17-month delay has been found presumptively
prejudicial). The second Barker factor—the reason for the delay—is not supported
by any evidence suggesting that it would be in Aguirre’s favor. There is nothing in
the record on this subject, and any conjecture about the State’s role in the delay
would be purely hypothetical. See Barker, 407 U.S. at 531, 92 S. Ct. at 2192. The
third Barker factor—assertion of the right—is undermined by the trial court’s
finding, which is supported by the record, that Aguirre told trial counsel that he
10 intentionally left the country to avoid prosecution. This fact seriously impedes
Aguirre’s speedy-trial claim, as it would show that rather than “vigorously
seek[ing] a rapid resolution” to the indictment, he instead deliberately frustrated
the State’s attempts to prosecute him. See Cantu, 253 S.W.3d at 284. Trial
counsel’s stated concern about opening the door to damaging information that the
State could later use in trial also was reasonable under these circumstances.
Finally, the fourth Barker factor—prejudice to the accused—must be
analyzed “in light of the defendant’s interests that the speedy-trial right was
designed to protect: (1) to prevent oppressive pretrial incarceration, (2) to
minimize the accused’s anxiety and concern, and (3) to limit the possibility that the
accused’s defense will be impaired.” Cantu, 253 S.W.3d at 285. Because Aguirre
was not imprisoned during the delay, and according to his own affidavit he was not
aware of the indictment, neither of the first two rights are implicated here. See id.
To the extent Aguirre asserts that the delay itself is a prima facie showing of
prejudice that the State was required to rebut regardless of whether he presented
evidence, see Dragoo v. State, 96 S.W.3d 308, 316 (Tex. Crim. App. 2003), we
note that the “presumption of prejudice to the defendant’s ability to defend himself
is ‘extenuated . . . by the defendant’s acquiescence’ in the delay.” Shaw v. State,
117 S.W.3d 883, 890 (Tex. Crim. App. 2003) (quoting Doggett v. United States,
505 U.S. 647, 658, 112 S. Ct. 2686, 2694 (1992)). If the trial court had found that
11 Aguirre acquiesced in the delay by evading prosecution, the presumption of
prejudice in this case would have been extenuated. It is also uncertain what
evidence the State would have adduced to rebut any further argument of prejudice,
as both at trial and on appeal the State was required to respond only to Aguirre’s
claim of ineffective assistance of counsel, and not his potential Sixth Amendment
speedy-trial claim.
Even assuming the first two Barker factors were highly favorable to Aguirre,
the third factor would weigh heavily against him and open the door to potentially
damaging information, and it is far from clear that the fourth factor would work in
his favor. See id.; Cantu, 253 S.W.3d at 285. The uncertain success of the claim
and its possible negative effects on the trial as a whole would be enough to prevent
a reasonable attorney from pursuing a speedy-trial claim. A reasonable view of the
record supports the trial court’s conclusion that trial counsel’s decision not to
pursue a speedy-trial claim was a matter of reasonable trial strategy and not
deficient performance.
Aguirre’s argument that trial counsel’s “incomplete” investigation renders
his strategic decision deficient is unavailing. While trial counsel has a duty to
research the facts and law when making a strategic legal decision, counsel is not
required “to investigate each and every potential lead.” Woods, 176 S.W.3d at 226.
Trial counsel’s testimony, which the trial court found credible, stated that he spoke
12 with both Aguirre and other family members. None of them suggested that Aguirre
was living in the United States after the warrant was issued, and Aguirre himself
admitted that he fled to Mexico in response to the charges.
The only evidence presented that Aguirre was living in the United States at
any time after charges were filed came from his son’s affidavit, which the trial
court was free to disbelieve. See Riley, 378 S.W.3d at 457. In any case, that
information was not provided to trial counsel at a time when he could consider its
implications for a potential speedy-trial defense. The record supports the trial
court’s conclusion that trial counsel’s investigation of the facts was within the
standard of “prevailing professional norms.” See Ellis, 233 S.W.3d at 330. To
require counsel to have searched for the specific, hard-to-find documents that
would contradict his client’s own statements would be to judge him on the basis of
hindsight rather than whether he provided reasonably competent assistance. See
id.; Woods, 176 S.W.3d at 226.
Aguirre also argues that because trial counsel did not research the law
regarding the speedy-trial right in connection with this specific case, his strategic
decision was unsound because it was not based on a firm grasp of the law. During
the hearing, trial counsel was asked if he had read several cases relating to the
speedy-trial right; trial counsel stated that he had read only Barker v. Wingo. The
trial court found that this, combined with trial counsel’s knowledge of the facts,
13 was sufficient for him to make a strategic decision based on the Barker factors. See
Barker, 407 U.S. at 530–32, 92 S. Ct. 2182 at 2192–93. Because the Barker factors
control the analysis, a “reasonable view of the record could support the trial court’s
ruling” that trial counsel performed a sufficient legal and factual investigation, and
thus, the court did not abuse its discretion. Riley, 378 S.W.3d at 457; Lopez, 428
S.W.3d at 282.
In sum, rather than a situation in which “no reasonable attorney would
pursue” the same strategic course as Aguirre’s trial counsel, the record supports the
trial court’s determination that the challenged omission in this case was “sound
trial strategy.” Ellis, 233 S.W.3d at 330–31. Viewing all evidence in favor of the
trial court’s ruling, we conclude that trial counsel’s decision not to pursue a
speedy-trial claim was a reasonable and valid legal strategy, and thus no basis for
an ineffective assistance claim. See id. at 330; Riley, 378 S.W.3d at 457. Aguirre
has not alleged any other reason for trial counsel’s ineffectiveness on appeal, and
he has not raised any other reason to reverse the lower court’s ruling on his motion
for new trial.
We conclude that the trial court did not err by denying Aguirre’s motion for
new trial because Aguirre’s trial counsel was not deficient in his decision not to
litigate a speedy-trial claim. We overrule Aguirre’s argument on appeal.
14 Conclusion
We affirm the judgment of the trial court.
Michael Massengale Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).