Ibarra v. State

• Decision Date: 20 October 1999
• Citation: 11 S.W.3d 189
• Parties: (Tex.Crim.App. 1999) RAMIRO RUBI IBARRA, Appellant v. THE STATE OF TEXAS NO. 72,974
• Court: Texas Court of Criminal Appeals

Page 189

11 S.W.3d 189 (Tex.Crim.App. 1999)

RAMIRO RUBI IBARRA, Appellant v. THE STATE OF TEXAS

NO. 72,974

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

October 20, 1999

Rehearing Denied Dec. 8, 1999.

ON DIRECT APPEAL FROM McLENNAN COUNTY

[Copyrighted Material Omitted]

O P I N I O N

MEYERS, J., delivered the unanimous opinion of the Court.

Appellant was convicted in September 1997 of capital murder. TEX. PENAL CODE ANN. 19.03(a). Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure article 37.0711 3(b) and 3(e), the trial judge sentenced appellant to death. Article 37.0711 3(g).¹ Direct appeal to this Court is automatic. Article 37.0711 3(j). Appellant raises eleven points of error.

In his first point of error, appellant contends the issuance of a second search warrant under amended Article 18.01 violated the prohibition against retroactive laws contained in the Texas Constitution. TEX. CONST. art. I, 16.²

The instant offense, murder in the course of a sexual assault, occurred on March 5, 1987. On or about March 10, 1987, Waco police detectives obtained an evidentiary search warrant for blood and hair samples from appellant. An indictment was returned on May 25, 1987. However, due to the detectives' failure to properly procure the search warrant through a court of record, the items seized pursuant to that warrant were eventually suppressed. The State was unable to obtain a subsequent search warrant because Article 18.01(d), as it then provided, prohibited it.³ Without this evidence, the State dismissed the indictment.

In 1995, Article 18.01(d) was amended to permit the issuance of subsequent search warrants.⁴ Section 2 of the statutory notes accompanying the amendment provides:

The change in the law made by this Act applies regardless of whether a search warrant under Subdivision (10), Article 18.02, Code of Criminal Procedure, was issued before, on, or after the effective date of this Act.

Following the amendment, the State obtained a second search warrant for hair and blood samples from appellant. Appellant was re-indicted and convicted.

The retroactive laws provision of the Texas Constitution operates only to prohibit the application of statutes which disturb vested, substantive rights. Ex parte Davis, 947 S.W.2d 216, 220 (Tex. Crim. App. 1996); Grimes v. State, 807 S.W.2d 582, 587-88 (Tex. Crim. App. 1991); see also Fowler v. State, 991 S.W.2d 258, 260-61(Tex. Crim. App. 1999). Laws altering procedure do not generally fall within the prohibition. Davis, 947 S.W.2d at 220; Grimes, 807 S.W.2d at 587-88.

The amendment to Article 18.01(d), deleting the prohibition against subsequent search warrants and providing that subsequent warrants be issued by specified courts, is procedural in nature. It affects only the circumstances in which subsequent evidentiary search warrants may be issued; the amendment does not impact a defendant's right to be free from unreasonable searches and seizures. See Ex parte Davis, 947 S.W.2d 216, 220 (Tex. Crim. App. 1996)(amendments to Article 11.071, limiting subsequent applications for writ of habeas corpus, were procedural and did not affect vested, substantive rights); Grimes, 807 S.W.2d at 587 (amendment to code provision to effect that error occurring in punishment phase would result in new punishment hearing only instead of new trial, was procedural and did not disturb vested, substantive rights).

Appellant argues the amendment affected his "vested right to be free from further search warrants once the first one was executed." He also says the second search violated his substantive rights "to be free from search and seizure." But the deleted portion of Article 18.01 did not create a vested, substantive right to be free from a second search and seizure. Rather, it established a prohibition which operated to prevent the State from seeking a second warrant. Moreover, there is no right "to be free from search and seizure," only unreasonable search and seizure. Appellant does not otherwise complain that the search was unreasonable, or that the amendment renders second searches unreasonable. Point of error one is overruled.

In point of error two, appellant maintains his right to due process under the Fifth Amendment was violated by the passage of time between the date the offense was committed and the date appellant was indicted a second time, almost nine and a half years later. In point of error three, appellant claims the delay violated his due-course-of-law rights under the Texas Constitution.

As stated in point of error one, appellant was originally indicted on March 25, 1987, just nineteen days after the instant offense was committed. Due to procedural problems with a search warrant, the State's best supporting evidence was suppressed and the indictment was dismissed on July 29, 1988. Because the State was unable to obtain a second search warrant at that time, little other investigation was able to take place.

In 1995, the legislature amended Article 18.01(d). Pursuant to this change in the law, the State obtained a second evidentiary search warrant and appellant was re-indicted on September 18, 1996. Appellant now claims the State delayed the second indictment for tactical reasons only.

The applicable statute of limitations is the primary assurance against bringing an unduly stale criminal charge. United States v. Marion, 404 U.S. 307, 322 (1971). There is no statute of limitations for the offense of murder in Texas. Article 12.01(1). However, the statute of limitations does not fully define a defendant's rights with respect to the events occurring prior to indictment; the Due Process Clause has a limited role to play in protecting against oppressive delay. United States v. Lovasco, 431 U.S. 783, 789 (1977); Marion, 404 U.S. at 325.

A defendant is entitled to relief for pre-indictment delay under the Due Process Clause where he can show the delay: (1) caused substantial prejudice to his right to a fair trial, and (2) was an intentional device used to gain a tactical advantage over the accused. Marion, supra; Spence v. State, 795 S.W.2d 743, 749 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 932 (1991); see also United States v. Gouveia, 467 U.S. 180, 192 (1984)(Due Process Clause requires dismissal of indictment where government's delay was deliberate device to gain advantage and delay caused accused actual prejudice). The Fifth Circuit has extended the second prong of the test to delays intentionally undertaken by the government for the purpose of gaining some tactical advantage and those for other impermissible, bad-faith purposes. United States v. Crouch, 84 F.3d 1497, 1514 (5th Cir. 1996).

Applying the two-prong test, we conclude appellant's due process rights were not violated. We again note there is no limitation on the time within which to prosecute someone for murder. See Article 12.01(1). Further, nothing in the record suggests the State intentionally delayed the case to gain a tactical advantage over appellant or otherwise acted in bad faith. The State merely stopped investigating when it had no further access to evidence and re-opened investigation when evidence became accessible pursuant to statutory changes. Additionally, appellant fails to establish prejudice. The record is devoid of any proof that exculpatory evidence or witnesses became unavailable to him during the delay. Appellant's alibi witnesses at the time of the first indictment both testified in the instant trial.

Appellant relies on the fact that the State did not continuously investigate him during the time period in question. We are unaware of any requirement that the police conduct continuous investigation. Further, we fail to see the difference in the continuation of an investigation after a procedural change in the law versus an advancement in science such as DNA testing which appellant views as a valid reason to re-open a case. We agree with the Supreme Court's evaluation:

In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely "to gain tactical advantage over the accused," precisely because investigative delay is not so one-sided. Rather than deviating from elementary standards of "fair play and decency," a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of "orderly expedition" to that of "mere speed." This the Due Process Clause does not require. We therefore hold that to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.

Lovasco, 431 U.S. at 795.

Citing Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991), as authority for his proposition, appellant claims Article I, 19 of the Texas Constitution affords him greater rights than the Federal Due Process Clause. Appellant argues that under the Texas Constitution, our inquiry need not be confined to an assessment of whether the State was attempting to gain a tactical advantage by delaying the case. He suggests "a delay for an improper purpose" would violate the due course of law provision. Appellant argues the State's deliberate decision not to prosecute the case without the evidence suppressed under the first warrant and the State's later pursuance of the case after they were able to obtain a subsequent warrant under the amended law was such a delay.

Even assuming the standard argued by appellant applies under the Texas Constitution, the evidence does not support a conclusion that the State's delay was for an "improper purpose." There is nothing improper in a State's decision not to prosecute a case based on its assessment that there is insufficient evidence to obtain a conviction. That the...