GABALDON, IVAN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0149-23

THE STATE OF TEXAS

v.

IVAN GABALDON, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE EIGHTH COURT OF APPEALS
EL PASO COUNTY

RICHARDSON, J., delivered the opinion of the Court in which NEWELL,
WALKER, MCCLURe, and PARKER, J.J., joined. SCHENK, P.J., filed a concurring
opinion. YEARY, J., concurred. FINLEY, J., filed a dissenting opinion in which
KEEL, J., joined.

OPINION

Appellee was initially indicted for murder. After he sought dismissal on speedy trial

grounds the State dismissed the murder charge and reindicted Appellee for capital murder

with the intent to seek the death penalty. The trial court, after finding that the State’s
reindictment was unconstitutionally vindictive, dismissed the case with prejudice. The El

Paso 8th Court of Appeals agreed and affirmed the trial court. The question before this

Court is whether the trial court abused its discretion in doing so. We hold that the trial court

did abuse its discretion and reform the trial court’s order to remove the “with prejudice”

language from its dismissal. In doing so, as urged by the State, we allow them to reindict

Appellant but limited to the original charge of murder or any other lesser-included offense

per its discretion.

BACKGROUND

On February 27, 2021, Appellee Ivan Gabaldon was detained by the El Paso Police

Department in the course of a murder investigation following the discovery of the body of

Juan Garcia Flores. (1 CR 209-10). According to the complaint affidavit which was filed

the next day (February 28), Flores’s body had been discovered in a small bathroom

following a call to police for a welfare check in the morning hours of February 23, 2021.

(1 CR 209-10). Police believed he had died on February 22 after suffering multiple stab

wounds to his back and neck. The complaint affidavit identified Appellee as the alleged

perpetrator of the stabbing and further alleged that the stabbing happened because of a

disagreement while Appellee was receiving oral sex in exchange for money in Flores’s

truck.

In the complaint affidavit, Appellee claimed that Flores pulled a knife and

threatened Appellee while stating a desire to perform other sexual acts on Appellee against

Appellee’s wishes. (1 CR 209-10). Appellee claimed that he then appropriated and drove

2
Flores’s truck away after he threw the knife out onto an unknown street. (1 CR 209-10).

According to the affidavit allegations, Appellee then sold the stolen truck for $200,

changed his clothes, and then fled to Juarez, Mexico. (1 CR 209-10). A warrant for

Appellee’s arrest was signed on the same day as the complaint affidavit and executed on

the February 28th. (1 CR 208).

On March 5, 2021, Appellee, his counsel, and the State appeared before a magistrate

for a bond hearing after his original bond was set for $1 million. (2 RR 1; 1 CR 212). There,

Appellee requested that his bond be reduced to a more reasonable amount and be given a

personal recognizance bond with strict reporting conditions. (2 RR 4-6). In support,

Appellee’s trial counsel represented that Appellee was a natural citizen who worked in

downtown El Paso to support his pregnant wife and child living in Juarez, Mexico. Trial

counsel also argued that the bond amount should be lowered because Appellee had a strong

self-defense claim.

The State opposed bond reduction and stated the following:

Judge, we don’t believe that the defendant is even a U.S. citizen, and I think
that this claim that he was born in Chicago is false. We know that he is
crossing the border on a very regular basis during the week using a false
Social Security card.

(2 RR 6). The State further alleged that the birth certificate was fake and that Appellee had

no real ties to the community. (2 RR 6-7). According to the State, Appellee was also a

danger to the community because Appellee was arrested and was on bond for two pending

fourth degree felony charges, Possession of Stolen Vehicles (1st Offense) and Non-

3
residential Burglary, in New Mexico allegedly committed only 12 days prior to the alleged

murder. (2 RR 6-7; 1 CR 42 (“Notice of Extraneous Offenses” alleging Appellee had

pending felonies from Dona Ana County, New Mexico)). After the State highlighted

Appellee’s alleged efforts to hide evidence in the instant case and flee to Juarez, the

magistrate denied Appellee’s request and continued the bond at $1 million. (2 RR 9).

First Indictment

On March 10, 2021, the Grand Jury returned an indictment against Appellee for a

single count of Murder under trial court cause number 20210D00530 and assigned to the

210th District Court for El Paso. (1 CR 9). On March 17, Appellee filed a formal request

for all discovery pursuant to Texas Code of Criminal Procedure Article 39.14. (1 CR 214).

On May 18, at the judge’s conference, the court coordinator mentioned on the record

that trial was set for November 5, 2021. (3 RR 4). Another status conference was held on

August 19. (4 RR 1). There the State announced that it had no plea recommendations yet.

Defense, in response, responded “I think we’re just going to wait for our trial date . . . .” (4

RR 4).

On October 5, 2021, a month before trial, the trial court held a hearing on Appellee’s

motion to inspect the evidence. There, Appellee complained that the State still hadn’t

turned over required discovery including Appellee’s own statements made to the police. (5

RR 4-16). In spite of the missing discovery, Appellee announced that he was ready for trial

on November 5. Appellee’s counsel also announced Appellee’s opposition to any

4
continuance or that Appellee be released under a personal recognizance bond. The State

said that it was sending evidence to DPS labs for forensic testing and promised that the

missing statement would be given to Appellee via their digital discovery portal. The trial

judge, while noting the State’s tardiness in this case and other serious cases, acknowledged

that there was no jury panel available on November 5 due to COVID-19 protocols. (5 RR

10-14). The trial court then reset the trial to December 2, 2021 and announced another

hearing in two days (October 7) to receive updates on the State’s progress. (5 RR 15).

On October 7, the trial court reconvened to receive updates. After dealing with

additional discovery matters including items of evidence recently submitted by the State

for DNA testing, the trial court proclaimed that it would still go forward with trial on

December 2 with two jury panels. (6 RR 14). The trial court also granted Appellee’s motion

for discovery and inspection of evidence and set October 19 as the date to reconvene.

Nevertheless, Appellee’s counsel once again, despite having complained about discovery

issues, declared the defense ready for trial on December 2.

On Novermber 15, 2021, the State filed a motion for a continuance of the December

2 trial date. In support, the State provided three reasons:

(1) The lead prosecutor, Curtis Cox, had jury duty set for December 3,
2021—the day after jury trial was to commence.
(2) DNA testing on 10 items submitted to DPS had not yet been completed.
(3) Three material witnesses, including one that may have had exculpatory
information, could not be located.

5
(1 CR 264-65). Appellee’s counsel responded with a motion objecting to the continuance

and requesting a speedy trial dismissal. (1 CR 269). A hearing was held on November 16,

to address these motions and a contemporaneous State’s motion objecting to masked jurors

during jury selection. During the hearing and in addition to the three arguments above,

Curtis Cox, on behalf of the State, also claimed that he intended to take the case to be

reindicted under the capital-murder statute and needed time to evaluate the case. (8 RR 16).

At the hearing, Appellee’s trial counsel, in response, opposed the continuance and

asserted that the State’s need for a continuance was of its own making after failing to

exercise due diligence in locating witnesses and testing evidence. Appellee’s counsel once

again announced its readiness for trial—even on a capital-murder reindictment—and

declared it would be willing to waive its 10 days to prepare for it. (8 RR 17-22).

Second Indictment and State’s Motion to Seek the Death Penalty

On November 17, 2021, the State motioned the trial court to dismiss Appellee’s murder

charge without prejudice which the court granted. At the same time, the State reindicted

the case under the capital-murder statute to be tried in the 210th District Court (Cause

number 20210D02909). (1 CR 8). On November 18, the State renewed their November 15

request for a continuance in an amended motion. In their amended motion, the State added

a fourth reason that the State needed time to evaluate whether to pursue the death penalty.

Subsequently, “State’s Notice of Intent to Seek the Death Penalty” was filed on November

22.

6
Defense Motion to Dismiss on Prosecutorial Vindictiveness

On November 23, 2021, Appellee filed his “Motion to Dismiss Based on Prosecutorial

Vindictiveness.” (1 CR 76). In the motion, Appellee claimed that the State elected to seek

the death penalty as “retribution for [Appellee] asserting his speedy trial rights” and as a

means of delaying the trial. (1 CR 78). In support, Appellee argued that the State’s

justifications for seeking the death penalty were contradicted by other contemporaneous

actions such as offering a PR bond. Notably, Appellee alleged that they were implicitly

threatened during the November 16 hearing where the following exchange happened on

the record:

Defense: But, you know, we’re in a situation where weeks before trial
now we’re – you know, now we’re looking at a capital murder.
And my thought is this is just a way to delay. We are ready and
if they indict, Your Honor, we are willing to waive our ten
days.
The Court: Okay. All right.
Defense: May I say –
Prosecutor: I do not think you can do that while we consider whether to
seek the death penalty. However, I will seek the death penalty
if that’s what becomes necessary.
Defense: We’ll still waive our ten days.

(8 RR 17).

The State countered in a written response that it had reindicted the case under the

capital-murder statute because of the horrific aggravating facts of the case. The State

alleged that Appellee had committed a murder motivated by hate in the course of

7
committing a premeditated robbery. Per the State, the victim had been stabbed

approximately 20 times while on his knees and had been targeted because of his sexual

orientation. The State asserted that it was essentially correcting the misjudgment of prior

prosecutors who undercharged the alleged offense. (1 CR 111). With regard to the State’s

proposal to release Appellee on a personal recognizance bond, the State asserted that while

Appellee was a continuing danger to society, he had “the presence of mind necessary to

conform his behavior while being watched by the criminal justice system.” (1 CR 113).

Trial Court’s Hearing on Vindictiveness

On November 29, the trial court held a hearing and heard arguments regarding a number

of pretrial matters including Appellee’s motion to dismiss. While both parties re-urged

arguments from their written motion, the State also announced that it was now ready for

trial on December 2. (10 RR 66). Nevertheless, at the end of the hearing, the trial court, in

light of the late developments, delayed trial tentatively to January 14, 2022 on its own

motion. (10 RR 105).

On December 14, 2021, the trial court orally informed the parties in a hearing that

it was granting Appellee’s motion to dismiss.

Trial Court: There are several points that the Defense has brought up or
highlighted, but clearly I saw the proceedings transpire as they
did. I simply find the State’s reasoning and explanations for its
decision to reindict and ultimately seek the death penalty as not
credible.
I am therefore granting the Defense Motion to Dismiss
for Prosecutorial Vindictiveness.

8
I am very concerned. I am very concerned and have
been concerned for a while because of the lack of diligence that
the State of Texas has, the manner in which they’ve been
handling –you-all have been handling these cases. It is with no
pleasure whatsoever that I am looking at this case and just
feeling, in my years as a prosecutor and being in this
courthouse, I certainly did not expect to be in a position to see
the State of Texas literally disregard some of the most serious
cases, to include this one, but as I know that there are others.
***
There are families of victims that are not being well
served when cases within the DA’s office can just be
disregarded. And there are so many troubling things, I agree.
I’m not going to reiterate. But I do feel that the Defense has
provided sufficient evidence that the reindictment and the
decision to seek the death penalty was an unjustifiable penalty
resulting solely from [Appellee] exercising his right to go to
trial. 1

1
We note that Yvonne Rosales, the District Attorney for the 34th Judicial District during the
pendency of this case, submitted her resignation letter to be effective on December 14, 2022. Resignation
Letter from Dist. Attorney Yvonne Rosales to Gov. Greg Abbott (Nov. 28, 2022). At the time, Rosales was
facing a petition to remove her from office after allegations were made of official misconduct and
widespread incompetence during her administration. State of Texas ex rel. Omar Carmona v. Yvonne
Rosales, No. 2022DCV2472 (346th Dist. Ct. Aug. 24, 2022). In addition to the alleged prosecutorial
vindictiveness in the instant case, the allegations of incompetence included the dismissal of hundreds (with
thousands more expected) of criminal cases by the jail magistrate for District Attorney Rosales’s failure to
secure an indictment or information. Id. at *3-4. Also included in the allegations were her alleged
mishandling of the mass murder case, State v. Patrick Wood Crusius, Nos. 2019D004878 & 20200D02631.
Id.; see also In re State, 705 S.W.3d 443 (Tex. App.—El Paso 2024) (discussing the alleged facts of Crusius
and the State’s alleged violation of the trial court’s explicit orders during that case). Per the petition to
remove, District Attorney Rosales’s office had failed to file a single pleading in eighteen months while
overseeing the case. Simultaneously, she also promised to hire new prosecutors to oversee Crusius and take
it to trial in less than a year. Ex rel. Carmona, No. 2022DCV2472, at *3. District Attorney Rosales’s
resignation became effective the day prior to a hearing set for December 15, 2022, which would have
decided whether she should be temporarily suspended from office and another appointed in her place
pending trial. See Order Setting Hearing on Temp. Suspension of the Respondent/Defendant Pending Trial,
Ex rel. Carmona, No. 2022DCV2472.
More than one administration has occupied the District Attorney’s office since former-D.A.
Rosales. Former-D.A. Bill D. Hicks was appointed by Governor Abbott, on December 14, 2022, to succeed
Rosales and finish the remainder of her term. Governor Abbott Appoints Hicks as 34th Judicial District
Attorney, OFFICE OF THE TEXAS GOVERNOR: GREG ABBOTT (Dec. 14, 2022),
https://gov.texas.gov/news/post/governor-abbott-appoints-hicks-as-34th-judicial-district-attorney. He was
succeeded by the current D.A. James Montoya beginning in 2025. Elected District Attorneys Through the
Years, EL PASO COUNTY: DISTRICT ATTORNEY JAMES MONTOYA,
https://www.epcounty.com/da/meet.htm (last visited May 22, 2025).

9
(11 RR 7-8). A written order dismissing the case with prejudice was entered that same day

which the State appealed. (1 CR 173, 174-75).

At the Eighth Court of Appeals, the State argued that the dismissal was an abuse of

the trial court’s discretion and that the “with prejudice” portion was judicial overreach. The

State asserted that there was no competent evidence to support the trial court’s finding that

the reindictment was motivated by prosecutorial vindictiveness. According to the State,

Appellee’s speedy trial right was not asserted until after the State notified them of their

intent to reindict the case. The State further asserted that it had not yet received evidence

concerning the robbery of the truck (necessary to invoke the capital-murder statute) until

well after the original murder indictment as further justification for the late reindictment.

Per the State, the receipt of the “new evidence” irrefutably rebutted any support for the trial

court’s factual findings. Thus, the State concluded that the trial court’s findings were

effectively unsupported and must be reviewed de novo. Alternatively, the State argued that

dismissal with prejudice was unwarranted and that the State should be allowed to prosecute

the case as a non-capital murder or another lesser-included offense.

The Eighth Court of Appeals, however, deferred to the trial judge’s credibility

findings and found evidence of actual vindictiveness on the part of the State. “The State

reindicted [Appellee] for capital murder as punishment for his opposition to their requests

for a continuance.” State v. Gabaldon, 661 S.W.3d 558, 568 (Tex. App.—El Paso 2023).

Thus, the lower appellate court found no abuse of discretion from the trial court. And

because the Eighth Court of Appeals opined that there was no other way to “neutralize the
10
taint of the State’s egregious conduct in this case,” they affirmed the dismissal of the

indictment with prejudice. Id.

On discretionary review, the State continues its position that dismissing with

prejudice is unwarranted even if there was a constitutional violation. Moreover, the State

does not concede that prosecutorial vindictiveness was the reason for re-charging Appellee

with capital murder and pursuing the death penalty. 2 The State contends the mere dismissal

of the capital murder charge (but without prejudice) would have cured any perceived taint

of unconstitutionality. Thus, the State argues that the trial court unnecessarily invaded the

exclusive province of the State’s prosecutorial discretion in forcing a dismissal with

prejudice. And in doing so, the State urges this Court to allow the reindictment of Gabaldon

but limited to the offense of murder or any other lesser-included offense.

APPLICABLE LAW

“[T]here is no general authority, written or unwritten, inherent or implied, which

would permit a trial court to dismiss a case without the prosecutor’s consent.” State v.

Johnson, 821 S.W.2d 609, 613 (Tex. Crim. App. 1991); see also State v. Dinur, 383 S.W.3d

695, 699 (Tex. Crim. App. 2012). This includes dismissals without prejudice and

dismissals with prejudice. Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001);

State v. Plambeck, 182 S.W.3d 365 368 (Tex. Crim. App. 2005). Even under its inherent

2
“If there was prosecutorial vindictiveness in this case, which the State does not concede, the
dismissal of the capital-murder indictment cured any constitutional violation.” St. Br. at *8. “While not
agreeing with the trial court or the Court of Appeals on the finding and holding of prosecutorial
vindictiveness in this case, . . . what the State contests is that any taint in the capital-murder indictment
occasioned by prosecutorial vindictiveness did not ever extend to the original murder indictment, . . . .” St.
Br. at *11-12.
11
judicial authority, trial courts lack this power because “dismissal of a case does not serve

to ‘enable our courts to effectively perform their judicial functions and to protect their

dignity, independence, and integrity.’” Johnson, 821 S.W.2d at 613 (quoting Eichelberger

v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979)).

A trial court only gains the authority to dismiss (over the State’s opposition) when

it is “authorized by constitution, statute, or common law.” State v. Mungia, 119 S.W.3d

814, 816 (Tex. Crim. App. 2003). Our case law recognizes a trial court’s authority to

dismiss a case without the prosecutor’s consent in the following situations:

(1) where a defendant has been denied a right to a speedy trial;
(2) where there is a defect in the charging instrument;
(3) where a defendant is detained and no charging instrument is presented (in
violation of Texas Code of Criminal Procedure Article 32.01); and
(4) to remedy certain Sixth Amendment violations to the right to counsel—
where the “defendant suffers demonstrable prejudice, or a substantial
threat thereof, and where the trial court is unable to identify and neutralize
the taint by other means.”

Dinur, 383 S.W.3d at 700; Johnson, 821 S.W.2d at 612; State v. Frye, 897 S.W.2d 324,

330 (Tex. Crim. App. 1995). Moreover, “other constitutional violations not yet identified

may also support a trial court’s dismissal of a case.” Dinur, 383 S.W.3d at 700.

Nevertheless, dismissing a case, especially with prejudice, is “a drastic measure

only to be used in the most extraordinary circumstances.” Mungia, 119 S.W.3d at 817

(quoting Frye, 897 S.W.2d at 330). Generally, the scope of a judicial remedy should be

narrowly tailored to cure the harmful conduct without “unnecessarily infringing on

competing interest.” United States v. Morrison, 449 U.S. 361, 364, 365 (1981). Dismissal

12
with prejudice is only warranted when there is no other means to nullify the violative act.

See id. at 365-66. “Therefore, where there is no constitutional violation, or [defendant’s]

rights were violated but dismissal of the indictment was not necessary to neutralize the

taint of the unconstitutional action, the trial court abuses its discretion in dismissing the

charging instrument without the consent of the State.” Dinur, 383 S.W.3d at 700 (citing

State v. Terrazas, 962 S.W.2d 38, 42 (Tex. Crim. App. 2003)).

To answer whether the trial court’s dismissal with prejudice was an abuse of

discretion, we first look to see if there is evidence supporting prosecutorial vindictiveness

in the record. There was. Both the trial court and the court of appeals agree the State’s

actions were vindictive, and the record supports that finding. As a result, we must next

answer the question of whether the finality of dismissing with prejudice was necessary to

“neutralize the taint” of the State misconduct. In this case, Appellee alleges that he was

vindictively reindicted for capital murder where the State pursued the death penalty

because Appellee asserted his right to a speedy trial. Thus, based on the above facts and

assumptions, “neutralizing the taint” requires the Court to question what would have

happened to the State’s case had the alleged misconduct never happened. If a neutralized

condition can be achieved with reasonable ease, then this Court should take such steps to

achieve it. However, if it is impossible to remove the poison from the State’s case, only

then does this Court have the authority of employing the “drastic remedy” of dismissing

with prejudice.

13
The “decision whether or not to prosecute, and what charges to file” generally rests

in the discretion of the prosecutor “so long as the prosecutor has probable cause to believe

that the accused committed an offense defined by statute.” Bordenkircher v. Hayes, 434

U.S. 357, 364 (1978). Thus, “[a]n initial indictment—from which the prosecutor embarks

on a course of plea negotiation—does not necessarily define the extent of the legitimate

interest in prosecution.” United States v. Goodwin, 457 U.S. 368, 380 (1982).

Nevertheless, the Due Process Clause is violated when criminal charges are brought

in retaliation for the defendant’s exercise of his legal rights. Neal v. State, 150 S.W.3d 169,

173 (Tex. Crim. App. 2004).

To punish a person because he has done what the law plainly allows him to
do is a due process violation of the most basic sort, and for an agent of the
State to pursue a course of action whose objective is to penalize a person’s
reliance on his legal rights is patently unconstitutional.

Bordenkircher, 434 U.S. at 363.

On appellate review, we “afford almost total deference to a trial court’s

determination of the historical facts that the record supports.” 3 Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997). We similarly afford the same deference to “trial

court rulings on application of law to fact questions” if the resolution turns on evaluations

3
There is no noticeable difference between the proposed “clearly erroneous” standard and the
Guzman standard applied to the trial judge’s findings. Under the clearly erroneous standard, the reviewing
court pays great deference to the trial court’s findings unless “the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364m 395 (1948). Although we utilize different nomenclature, that is exactly what we are
doing here.
14
of credibility and demeanor. Id. However, we review de novo “mixed questions of law and

fact” not depending on such evaluations of credibility and demeanor. Id.

Speedy Trial

The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial . . . .” The constitutional guarantee is that “the

Government will move with the dispatch that is appropriate to assure him [the accused] an

early and proper disposition of the charges against him. ‘[T]he essential ingredient is

orderly expedition and not mere speed.’” United States. v. Marion, 404 U.S. 307, 313

(1971) (quoting Smith v. United States, 360 U.S. 1, 10 (1959). “The constitutional right is

that of a speedy trial, not a dismissal of the charges.” Cantu v. State, 253 S.W.3d 273, 281

(Tex. Crim. App. 2008) (describing dismissal of the charges on speedy trial grounds as a

“radical remedy”); United States v. Loud Hawk, 474 U.S. 302, 314 (1986)

(“unsatisfactorily severe remedy of dismissal”). “It does not preclude the rights of public

justice.” Beavers v. Haubert, 198 U.S. 77, 87 (1905).

Per its own text, “the protection of the Amendment is activated only when a criminal

prosecution has begun and extends only to persons who have been ‘accused’ in the course

of that prosecution.” Marion, 404 U.S. at 313. Therefore, “the Speedy Trial Clause of the

Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or

otherwise officially accused.” United States v. MacDonald, 456 U.S. 1, 6 (1982) (citing

Marion, 404 U.S. at 313). “Thus, a person who has not yet been formally charged cannot

15
seek protection from the Speedy Trial Clause, and the State is not required ‘to discover,

investigate, and accuse a person within any particular period of time.’” 4 Gonzales v. State,

435 S.W.3d 801, 808 (Tex. Crim. App. 2014) (citing Marion, 404 U.S. at 313, 320)

(“Rather, ‘any delay between commission of the crime and indictment is controlled by the

applicable statute of limitations.’”).

“Dismissal of the charging instrument with prejudice is mandated only upon a

finding that an accused’s Sixth Amendment speedy-trial right was actually violated.”

Cantu, 253 S.W.3d at 281 (emphasis added). “This is a serious consequence because it

means that a defendant who may be guilty of a serious crime will go free, without having

been tried.” Barker v. Wingo, 407 U.S. 514, 522 (1972). The trial court “must use a

balancing test in which the conduct of the State and the defendant are weighed” in order to

analyze such claims. Shaw v. State, 117 S.W.3d 883, 888 (Tex. Crim. App. 2003) (citing

Barker, 407 U.S. at 530). Each case must be analyzed “with common sense and sensitivity

4
As the Supreme Court has explained:

The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent
prejudice to the defense caused by passage of time; that interest is protected primarily by
the Due Process Clause and by statutes of limitations. The speedy trial guarantee is
designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the
lesser, but nevertheless substantial, impairment of liberty imposed on an accused while
released on bail, and to shorten the disruption of life caused by arrest and the presence of
unresolved criminal charges.
***
But with no charges outstanding, personal liberty is certainly not impaired to the same
degree as it is after arrest while charges are pending. . . Following dismissal of charges,
any restraint on liberty, disruption of employment, strain on financial resources, and
exposure to public obloquy, stress and anxiety is no greater than it is upon anyone openly
subject to a criminal investigation.

United States v. Macdonald, 456 U.S. 1, 8–9 (1982).
16
to ensure that charges are dismissed only when the evidence shows that a defendant’s actual

and asserted interest in a speedy trial has been infringed.” Cantu, 253 S.W.3d at 281

(emphasis added) (citing Barker, 407 U.S. at 534–35 (rejecting defendant’s claim that his

speedy-trial right was violated despite a five-year delay where the record strongly indicated

that the defendant did not actually want a speedy trial). These factors, as defined under

Barker, include:

(1) the length of the delay;

(2) the reason for the delay;

(3) the defendant’s assertion of his speedy trial right; and

(4) the prejudice to the defendant resulting from the delay. 5

Barker, 407 U.S. at 530; Shaw v. State, 117 S.W.3d 883, 888–89. “No single factor is

necessary or sufficient to establish a violation of the defendant’s right to a speedy trial.”

Shaw, 117 S.W.3d at 889. “Rather, they are related factors and must be considered together

with such other circumstances as may be relevant.” Barker, 407 U.S. at 533. This is

because a dismissal resulting from “a wooden application of the Barker factors would

infringe upon ‘the societal interest in trying people accused of crime.’” Cantu, 253 S.W.3d

at 281.

Although the Texas Constitution independently guarantees an accused the right to a speedy trial,
5

this Court has traditionally applied the same Barker analysis to determine a speedy trial claim under the
Texas guarantee as well as the federal equivalent. Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim.
App. 2002).

17
Length of Delay

The length of delay, also called a “double inquiry,” is the prima facie “triggering

mechanism” that begins the Barker analysis. State v. Munoz, 991 S.W.2d 818, 821 (Tex.

Crim. App. 1999). “Until there is some delay which is presumptively prejudicial, there is

no necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S.

at 530. Presumptive prejudice “simply marks the point at which courts deem the delay

unreasonable enough to trigger the Barker enquiry.” Munoz, 991 S.W.2d at 822 (quoting

Doggett v. United States, 505 U.S. 647, 652 n.1 (1992)). “[A]n accused must allege that

the interval between accusation and trial has crossed the threshold dividing ordinary from

‘presumptively prejudicial’ delay . . . .” Doggett, 505 U.S. at 651. If the defendant makes

this showing, the trial court must consider among other factors, “the extent to which the

delay stretches beyond the bare minimum needed to trigger judicial examination of the

claim.” Id. Although every case should be examined under an ad hoc basis, “[i]n general,

delay approaching one year is sufficient to trigger a speedy trial inquiry.” Doggett, 505

U.S. at 652 n.1; Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003); Shaw, 117

S.W.3d at 889. 6

6
In Harris v. State, 827 S.W.2d 949 (Tex. Crim. App. 1992), this Court found that a thirteen-month
delay was presumptively unreasonable and thereby sufficient to trigger the need for Barker analysis. The
Court supported this finding by citing to LaFave & Israel, Criminal Procedure § 1832(b) (1984) with a
parenthetical stating that some courts found eight months or longer as presumptively unreasonable. See
also Zamarano v. State, 84 S.W.3d 643, 649 n. 26 (Tex. Crim. App. 2002) (“See Harris v. State, 827 S.W.2d
at 956 (recognizing that courts generally hold that any delay of eight months or longer is presumptively
unreasonable and triggers speedy trial analysis.).”).

18
Reason for Delay

“In assessing the reasons for delay, a court must accord different weights to different

reasons, and it must ask ‘whether the government or the criminal defendant is more to

blame for the delay.’” Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim. App. 2017)

(emphasis added) (quoting Doggett, 505 U.S. at 651–52). Deliberate attempts to delay trial

to hamper the defense should be weighed against the government heavily. Barker, 407

U.S. at 531; Munoz, 991 S.W.2d at 822. “A more neutral reason such as negligence or

overcrowded courts should be weighted less heavily.” Id. “[A] valid reason, such as a

missing witness, should serve to justify appropriate delay” and not be weighed against the

government at all. 7 Id. “Delay caused by the defense weighs against the defendant.” 8

Hopper, 520 S.W.3d at 924. Furthermore, “delay which is attributable in whole or in part

to the defendant may even constitute a waiver of a speedy trial claim.” Munoz, 991 S.W.2d

at 822 (citing Barker, 407 U.S. at 529 (stating “delay attributable to the defendant” can

waive speedy trial claims under the standard waiver doctrine)). This is especially the case

in light of “the reality that defendants may have incentives to employ delay as a ‘defense

tactic’: delay may ‘work to the accused’s advantage’ because ‘witnesses may become

7
“Delay caused by good faith plea negotiations is not the result of negligence or a ‘deliberate
attempt to delay the trial.’ We decide delay caused by good faith plea negotiations . . . should not be
weighed against the prosecution.” State v. Munoz, 991 S.W.2d 818, 824 (Tex. Crim. App. 1999); see also
Doggett v. United States, 505 U.S. 647, 656 (1992) (“Our speedy trial standards recognize that pretrial
delay is often both inevitable and wholly justifiable. The government may need time to collect witnesses
against the accused, oppose his pretrial motions, or, if he goes into hiding, track him down.”).
8
This includes the actions of defense counsel because “each party is deemed bound by the acts of
his lawyer-agent.” Coleman v. Thompson, 501 U.S. 722, 753 (1991) (quoting Link v. Wabash R. Co., 370
U.S. 626, 634 (1962)).
19
unavailable or their memories may fade’ over time.” Vermont v. Brillon, 556 U.S. 81, 90

(2009).

Defendant’s Assertion of his Speedy Trial Right

“Whether and how a defendant asserts his right is closely related to the other

factors . . . . The strength of his efforts will be affected by the length of the delay, to some

extent by the reason for the delay, and most particularly by the personal prejudice, which

is not always readily identifiable, that he experiences.” Barker, 407 U.S. at 531. Although

a defendant’s failure to assert his speedy trial right does not amount to a waiver of that

right, failure to assert the right . . . makes it difficult for a defendant to prove he was denied

a speedy trial.” Dragoo, 96 S.W.3d at 314. Moreover, “the longer the delay becomes, the

more likely a defendant who wished a speedy trial would be to take some action to obtain

it.” Id. Therefore, “[t]his factor is entitled to strong evidentiary weight in determining

whether the defendant is being deprived of the right to a speedy trial.” Gonzales v. State,

435 S.W.3d 801, 810–11 (Tex. Crim. App. 2014). “This is so because 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.” Shaw v. State, 117 S.W.3d 883,

890 (2003). Furthermore, “[f]iling for dismissal instead of a speedy trial will generally

weaken a speedy-trial claim because it shows a desire to have no trial instead of a speedy

one. If a defendant fails to first seek a speedy trial before seeking dismissal of the charges,

he should provide cogent reasons for this failure.” Cantu, 253 S.W.3d at 283; see Barker,

407 U.S. at 534–35 (finding that the defendant right to a speedy trial was not prejudiced

20
despite a five-year delay by the State because defendant’s actions—including a motion to

dismiss the indictment—showed that he did not want trial at all).

Prejudice to the Defendant

In assessing whether there is prejudice to the defendant, the trial court must do so

“in light of the interests of defendants which the speedy trial 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.

Dragoo, 96 S.W.3d at 315 (citing Barker, 407 U.S. at 532). “[W]ith 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 (citing Doggett, 505 U.S. at 655). Nevertheless, the Supreme

Court has recognized that “delay is a two-edged sword. . . . The passage of time may make

it difficult or impossible for the Government to carry this burden [of proving its case

beyond a reasonable doubt].” Loud Hawk, 474 U.S. at 315. Thus, “this presumption of

prejudice to the defendant’s ability to defend himself is ‘extenuated . . . by the defendant’s

acquiescence’ in the delay.” Dragoo, 96 S.W.3d at 315; Shaw, 117 S.W.3d at 890 (both

citing Doggett, 505 U.S. at 655).

“[I]n the absence of ‘excessive’ bad-faith or ‘excessive’ negligent delay by the

government, a defendant usually has to show ‘specific prejudice’ to his defense.” Munoz,

21
994 S.W.2d at 829 (citing Doggett, 505 U.S. at 655–57). “Although a showing of ‘actual

prejudice’ is not required in Texas, the burden is on the accused to make some showing of

prejudice which was the caused by the delay of his trial.” Harris v. State, 489 S.W.2d 303,

308 (Tex. Crim. App. 1973) (citing Courtney v. State, 472 S.W.2d 151, 154 (Tex. Crim.

App. 1971)). A finding of prejudice requires a showing that “lapses of memory” in

witnesses “are in some way ‘significant to the outcome’ of the case.” Munoz, 994 S.W.2d

at 829 (quoting Barker, 407 U.S. at 534). A “bare assertion of ‘dimming memories’” is

insufficient. Id. To show prejudice via emotional distress, the Defendant is required to

show “any anxiety or concern beyond the level normally associated with being charged”

with the specific offense in question. Shaw, 117 S.W.3d at 890. In the case of missing

witnesses, “the Appellee must show that the witnesses are unavailable, their testimony

might be material and relevant to his case, and that he has exercised due diligence in his

attempt to find them and produce them for trial. Harris, 489 S.W.2d at 308.

ANALYSIS

Here, we first note that the trial judge factually found the State prosecutor’s

justifications for the alleged retaliatory reindictment and pursuit of the death penalty as not

credible. The record, to which the trial judge had first-hand knowledge, supports the trial

judge’s finding. For instance, the record documents late discovery disclosures by the State

to which Appellee’s attorney made repeated requests and complaints. The State also

admitted to the trial judge that a prior prosecutor from among a string of prosecutors

assigned to the case had, “for at least . . . six months, effectively did nothing.” (8 RR 7).

Another notable statement, moreover, was where the lead State prosecutor simultaneously
22
maintained that Appellee should be allowed to be placed on a personal recognizance bond

while pursuing the death penalty for an extremely violent murder.

But perhaps most prominent is the timing of the State’s reindictment conveniently

right after Appellee asked the trial court for a speedy trial dismissal. The State asserted that

reindictment was not sought to avoid a potential speedy trial dismissal. Instead,

reindictment was justified only after the State discovered evidence of the aggravating

robbery of Flores’s truck and that the murder victim was a homosexual man. This eleventh-

hour “discovery of new evidence” happened mere weeks before the December 2021 trial

date and, per the State, gave rise to a possible hate crime. However, these claims are

completely inconsistent with the complaint affidavit filed roughly nine months earlier. (1

CR 209-10). As noted above, the complaint affidavit attested that there was probable cause

to believe that Appellee engaged in a homosexual act with Flores, stabbed him to death

multiple times, and then stole his truck. The trial judge was not outside the zone of

reasonableness in disbelieving that the State only became aware of these inculpatory details

nine months after the State began its prosecution for murder. The trial judge also based this

conclusion on her awareness of the State’s mishandling of other cases in her court.

Thus, the trial judge’s credibility finding is supported by evidence of actual

vindictiveness in the record. And because Appellee has shown evidence showing actual

vindictiveness, we conclude that the State, at least in part, retaliated against Appellee for

exercising a legal right.

23
Next, we examine whether the trial court’s authority to “neutralize the taint”

necessitated dismissal with prejudice. To do so, we begin by looking at Appellee’s

assertion of his right to a speedy trial. We look to see if Appellee’s speedy trial right was

actually violated. If it was, then dismissal of the case with prejudice would have been the

natural untainted result—and the trial court had the authority to effectuate that result.

Cantu, 253 S.W.3d at 281. However, if Appellee’s speedy trial right was not actually

violated, then dismissal with prejudice would have been an abuse of discretion.

Here, we note that Appellee was publicly accused of Flores’s murder on February

2, 2021. At the time of the State’s misconduct, Appellee’s trial was set for December 2,

2021. Thus, only around nine months would have passed had the case gone to trial. It is

arguable that this amount of time is insufficient in a murder prosecution to trigger a Barker

analysis. Doggett, 505 U.S. at 652 n.1 (stating that although cases are evaluated on an ad

hoc basis, delays “approaching one year” may be sufficient to trigger Barker analysis). We

note that there are a number of cases involving serious offenses that survived Barker

analysis despite a delay measuring in years. Nevertheless, assuming arguendo that this time

span is presumptively prejudicial enough to trigger Barker, there has been de minimus

delay. We note that “the extent to which the delay stretches beyond the bare minimum

needed” is near-zero. Doggett, 505 U.S. at 651. Thus, the length of the delay factor lends

no weight in favor of Appellee.

The reasons for delay, likewise, offer little-to-no weight in support of a speedy trial

dismissal. Although the State sought continuances multiple times, the trial court never

24
granted them. In other words, although they likely lacked diligence in pursuing the

prosecution, the State never caused any delay. The only continuance ever issued by the

trial court was when it reset the trial date of November 5 to December 2 because a jury

panel was not available amidst the COVID-19 pandemic. Accordingly, in asking the

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

delay,” we find the State blameless. Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim.

App. 2017) (quoting Doggett, 505 U.S. at 651–52).

The third Barker factor, however, weighs against Appellee, though not heavily. We

first note that Appellee, through counsel, timely asserted his right to a speedy trial. In a

hearing on October 5, 2021, Appellee attorney, while complaining of missing discovery,

orally announced that he was ready for trial and asked that any anticipated State requests

for continuances be denied. (5 RR 8-9). Appellee’s attorney maintained his oral demand

for a speedy trial to take place on December 2 in subsequent hearings over the next month

until November 15, 2021. (6 RR 21; 7 RR 7).

In response to the State’s written motion for a continuance and roughly two weeks

before the December 2 trial date, Appellee filed a written motion to dismiss with prejudice

claiming a violation of his speedy trial right. (1 CR 269-71). And as noted earlier, “[f]iling

for dismissal instead of a speedy trial will generally weaken a speedy-trial claim because

it shows a desire to have no trial instead of a speedy one.” Cantu, 253 S.W.3d at 283. Thus,

when Appellee filed for a dismissal instead of a speedy trial prior to the trial date he initially

25
demanded, he contradicted his own demands for a speedy trial on December 2. He revealed

a conflicting desire to avoid trial altogether.

Neither do the facts under the fourth Barker factor lean in Appellee’s favor. We

initially note that because we are assuming that the length of delay is barely past the point

of triggering Barker analysis, Appellee must show more acute or egregious prejudice

(created by the delay) than if the delay had been longer. See Harris v. State, 489 S.W.2d

303, 308 (Tex. Crim. App. 1973) (citing Courtney v. State, 472 S.W.2d 151, 154 (Tex.

Crim. App. 1971)). In his motion to dismiss, Appellee claimed that he was suffering from

oppressive pretrial incarceration because had been in prison since his February arrest. (1

CR 270). He additionally claimed that this had caused him “much anxiety and concern

regarding the outcome of the trial.” (1 CR 270). At a hearing dealing with Appellee’s

speedy trial motion and several other motions, Appellee’s trial counsel also represented

that the incarceration was causing economic hardship to Appellee’s family in Mexico. 9 (8

RR 13). Neither his written motion nor his claim of economic hardship, however, offer

“any anxiety or concern beyond the level normally associated with being charged” with

murder. Shaw v. State, 117 S.W.3d 883, 890 (2003).

Furthermore, the record provides items, though not fully developed in the record,

that undercut Appellee’s claims of prejudice. We initially note that when Appellee was

initially arrested, he had documented pending felony charges in New Mexico for which he

9
We question whether Appellee’s trial counsel’s representations constitute competent evidence.
Nevertheless, we will assume it is for the sake of argument.

26
was out on bail when the alleged murder of Flores occurred. (2 RR 6-7; 1 CR 42). The

State also asserted in a “Notice of International Criminal Record” that Appellee had

approximately six pending criminal cases in Chihuahua, Mexico ranging from dealing

cocaine to assaultive offenses. (1 CR 170). Additionally, the State asserted at Appellee’s

initial bond hearing that Appellee was a flight risk because he had entered the United States

illegally utilizing fraudulent documents. 10 (2 RR 6-7). Nevertheless, even with Appellee’s

contemporaneous criminal cases kept out of the analysis, Appellee fails to show an acute

prejudice beyond the stresses normally associated with being prosecuted for murder—

especially in light of the fact that the length of delay was minimally (if at all) sufficient to

trigger Barker.

Combining the Barker factors together, Appellee’s right to a speedy trial was not

violated. And because it was not violated, had there been no prosecutorial vindictiveness,

the case would not have necessitated a dismissal with prejudice on speedy trial grounds.

Thus, the trial court abused its discretion in dismissing the case with prejudice without the

State’s consent after finding the State had been unconstitutionally vindictive in retaliation

for Appellee’s speedy trial motion. The trial court’s authority to “neutralize the taint” only

extended to dismissing the capital-murder charge but leaving the door open for the State to

reindict Appellee for murder based on the facts of the case before it. 11 Dismissing the case

10
We question whether the State’s representations regarding Appellee’s pending cases in Mexico
and his allegedly illegal entry based on fake documents into the United States constitute competent
evidence. We will assume it is for the sake of argument.

We do not foreclose the possibility of dismissal with prejudice as an appropriate remedy in other
11

circumstances. We merely hold that it was not necessary to neutralize the taint in this case.
27
with prejudice, however, went well past returning the case to its original state and

punitively invaded the exclusive province of the State’s prosecutorial discretion. And in

doing so, the trial court exceeded both its enumerated and inherent authority.

Potential Remedies

Having found dismissal with prejudice too drastic, we now explore whether the

additional remedial condition of forced recusal (over any State objection) is required to

neutralize the taint under the facts of this case. Although there are variety of reasons and

avenues to remove or recuse a district attorney, we note the Appellant has not requested

that at any time. On remand, Appellant would not be foreclosed from seeking that as a

remedy, but there is nothing in the record to suggest that is a remedy they desire.

“Relying on Tex. Const. Article V, Section 21, Texas courts have uniformly

declared that the offices of county and district attorneys are constitutionally created and

therefore constitutionally protected. The authority of county and district attorneys cannot

be abridged or taken away.” State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 4 (Tex. Crim.

App. 1990) (internal citations and quotes omitted). Our statutes further mandate that

“[e]ach district attorney shall represent the state in all criminal cases in the district courts

of the attorney’s district . . . .” Tex. Code Crim. Proc. art. 2A.102 (formerly Article 2.01

(emphasis added)). And unless some explicit authority requires otherwise, we have long

held that “[t]he responsibility for making the decision to recuse himself is on the district

attorney himself; the trial court cannot require his recusal.” Coleman v. State, 246 S.W.3d

28
76, 81 (Tex. Crim. App. 2008) (citing Johnson v. State, 169 S.W.3d 223, 229 (Tex. Crim.

App. 2005); State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 939 (Tex. Crim. App. 1991)).

The Legislature has given us several statutory avenues that permits us to interfere

with the authority of the district attorney. Of these statutes, none apply to the circumstances

of this case. Chapter 87 of the Local Government Code allows for the complete removal of

a district attorney from office for incompetency, official misconduct, or intoxication. Local

Gov’t Code § 87.013 However, such a removal can only be done by filing a petition for

removal followed by conducting a full jury trial. Local Gov’t Code §§ 87.015, 87.018.

The Code of Criminal Procedure requires recusal in specified scenarios where the

prosecutor is disqualified. Tex. Code Crim. Proc. art. 2A.105 (formerly Article 2.08).

However, the record here does not reflect that the current District Attorney for the 34th

Judicial District or any member of his office is or would be disqualified. No party has even

suggested that the District Attorney is disqualified, nor implicated any conflicts of interest.

See Tex. R. Prof. Conduct 1.09 (prohibiting an attorney from representing another person

“in the same or substantially related matter in which that person’s interests are materially

adverse to the interests of the former client”); Landers v. State, 256 S.W.3d 295, 305-07

(Tex. Crim. App. 2008) (utilizing Tex. R. Prof. Conduct 1.09 as “guidance” in interpreting

Tex. Code Crim. Proc. art. 2.08 (now Article 2A.105)). We reiterate that no party has

requested the recusal of the District Attorney and is not precluded from doing so on remand.

Secondly and from a more pragmatic perspective, just like we cannot take a case

away from a prosecuting authority, we also lack the authority to force a neighboring

29
prosecuting authority to take the case. We cannot require a neighboring authority to travel

to another jurisdiction to prosecute a case against their consent. There is no incentive for a

neighboring nor any other district attorney to do so. They receive no additional

compensation nor even travel costs for taking the case. Especially in this case, the nearest

neighboring prosecuting authority to the District Attorney’s Office for the 34th Judicial

District is a considerable distance away. This presents additional logistical challenges

compared to other areas in Texas where the geographical distance between neighboring

county seats is far shorter. Moreover, most of these are small offices. It is dangerous to set

a precedent that cannot be applied evenly throughout the state.

Finally, the nearest neighboring district attorney’s office may not be in a position or

be otherwise equipped to take on such a complex case. Some offices have only a handful

of part-time attorneys and have little-to-no experience dealing with a potential capital-

murder case. Other offices may have their own challenges such as overwhelming caseloads

or shortages of either human or equipment resources.

In summary, dismissal without prejudice without forced recusal is the sure-footed

path forward here. Indeed, the past problematic district attorney was recently defeated and

replaced with a newly elected district who may very well be acceptable to Appellee. In

accordance with Supreme Court case law, the scope of this remedy is narrowly tailored to

cure the harmful conduct in this case without “unnecessarily infringing on competing

interest.” United States v. Morrison, 449 U.S. 361, 364, 365 (1981).

30
CONCLUSION

It is undisputed that prosecutors for the State have immense discretion in deciding

whom to criminally charge and what criminal charges to pursue. Still, utilizing the death

penalty—the ultimate punitive measure—in retaliation for the valid exercise of a

constitutional right is incongruent with the prosecutor’s compelling “obligation to govern

impartially” and duty as a servant of the law to refrain from striking “foul blows.” Berger

v. United States, 295 U.S. 78, 88 (1935). Thus, the circumstances that led to this case are

concerning. And partly because of the State’s mishandling of this case and other cases from

this time period, we note that multiple administrations have come and gone at the Office

of the District Attorney for the 34th Judicial District. 12 We remain optimistic that the current

administration will not continue such folly.

Nonetheless, we hold that the trial court exceeded its authority in dismissing

Appellee’s capital murder charge with prejudice. Doing so abused the trial court’s power

to neutralize the taint of prosecutorial vindictiveness. Consequently, we reverse the court

of appeals and modify the trial court’s dismissal to be without prejudice. In doing so, we

grant the State’s request to allow a reindictment of Appellant for the original charge of

murder or any other lesser-included offense per its discretion.

12
The District Attorney for the 34th Judicial District serves not only the entirety of El Paso County,
but also acts as the district attorney for Culberson and Hudspeth counties as well.
31
Filed: September 3, 2025

Publish

32