Reversed and Remanded and Memorandum Opinion filed July 16, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00800-CR

THE STATE OF TEXAS, Appellant

V.

OLLIE JAMES FORD, JR., Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1268175

O P I N I O N

Appellee Ollie James Ford, Jr., was indicted on July 20, 2010, for the felony 

offense of aggravated sexual assault of a child that allegedly occurred on or about 

November 22, 1995. Appellee filed a motion to dismiss the indictment for 

prosecutorial delay of more than fourteen years between the alleged offense and 

the indictment. Following an evidentiary hearing, the trial court granted the 

motion to dismiss. The State of Texas now appeals the trial court’s order 

dismissing the case. Because there is no evidence that the delay was used 

intentionally to gain a tactical advantage over appellee or for some other improper 
2

purpose, we reverse the trial court’s order and remand for further proceedings in 

accordance with this opinion.

BACKGROUND

On July 20, 2010, a grand jury indicted appellee for the aggravated sexual 

assault of A.R. The sexual assault allegedly occurred on November 22, 1995, 

when A.R. was seven years old. After he was indicted, appellee filed a motion to 

dismiss the indictment, arguing that the State violated his due process rights when 

it waited more than fourteen years to indict him. See U.S. CONST. amend. V, XIV. 

Appellee also alleged that his right to a speedy trial had been violated. U.S.

CONST. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05 

(West 2005). During the ensuing evidentiary hearing, five witnesses testified: two 

records clerks from local medical facilities, the two investigating Baytown police 

officers, and the former Harris County prosecutor who accepted charges in 2010.1

Baytown police officer Brian Thompson testified that he was assigned to the 

case in late December 1995, when he was a new detective, after Child Protective 

Services (C.P.S.) referred the case to the police. Thompson learned from the 

C.P.S. referral that A.R.’s aunt had observed blisters on A.R.’s lower back and 

rectum area and had taken her to San Jacinto Methodist Hospital as a result. A.R. 

was diagnosed with syphilis. Thompson also learned that A.R. had reported being 

sexually abused by people either living in or visiting her mother’s house.

In early January 1996, Thompson travelled to Wallisville where he initially 

met with A.R. During that meeting, he presented A.R. with four separate photo 

 

1

The two records clerks who testified were from San Jacinto Methodist Hospital and 

Harris County Public Health and Environmental Services. Both testified they were unable to 

locate any records related to either A.R. or appellee for the 1995 to 1996 time period. The Harris 

County records clerk testified she did determine that a record for appellee had been opened in 

1993 and closed in 1996, but the record itself had been purged and destroyed in March of 2001. 
3

spreads that each included a photograph of a different male individual who had 

access to A.R.’s home on Elm Street in Baytown (“Elm Street House”): Toby 

Wright Moore, John Brinkley, Tony Cazares, and appellee. A.R. identified all four 

individuals as friends of the family. A.R. specifically identified Moore as her 

sister’s boyfriend. She also told Thompson that neither Moore nor Brinkley had 

hurt her.

After she identified Cazares and appellee in the photo spreads, A.R. was 

referred to Texas Children’s Hospital where she participated in a video forensic 

interview. Thompson testified he observed a portion of A.R.’s interview while it 

was occurring, and eventually viewed the complete interview on videotape. In the 

interview, A.R. disclosed that two people, Cazares and appellee, had sexually 

assaulted her by placing their sexual organs in her rectum. According to 

Thompson, Cazares was A.R.’s mother’s boyfriend and lived in the Elm Street 

House with A.R. and her mother. Thompson also learned that appellee was a 

friend of Cazares and that he frequently visited the Elm Street House. In addition, 

Thompson learned that A.R. had reported the sexual abuse to her mother and her 

sister, but neither believed her.

Thompson continued his investigation by conducting interviews with some 

of the people A.R. identified as living in the Elm Street House. Thompson first 

interviewed A.R.’s mother. During that interview, she denied A.R. had told her 

that she had been sexually assaulted. Thompson also interviewed A.R.’s sister, 

who told Thompson she was not aware of any sexual abuse of A.R. Thompson 

then interviewed Brinkley, who denied any knowledge of sexual abuse occurring 

in the house. Finally, Thompson interviewed Cazares, who denied that he had 

sexually assaulted A.R.

All of the people associated with the Elm Street House agreed to be tested 
4

for syphilis. Thompson testified that, with the exception of Brinkley, each person 

directly told him they had been tested for syphilis and the results were negative. 

Thompson testified that he learned the testing had been performed at the Harris 

County Health Clinic. Thompson then contacted the clinic by telephone and was 

told that the clinic does not obtain the patient’s name but instead assigns a number 

to each patient. Thompson learned that a patient could obtain his or her test results 

only by using the assigned number. Thompson testified that, as a result of this 

telephone conversation, he assumed he could not obtain the testing records with the 

information that he had because the clinic did not keep the test results. Thompson 

admitted that he did not ask the people associated with the Elm Street House for 

their patient numbers nor did he ask the clinic if there was any way to substantiate 

their claims that they had been tested for syphilis and that the results were 

negative.

Thompson also made contact with C.P.S. worker Katie Deal as part of his 

investigation. According to Thompson, Deal forwarded medical confirmation that 

A.R. had syphilis. Thompson testified that Deal also told him that the Elm Street 

House residents had completed sexually-transmitted-disease testing and the test 

results would be forwarded to him. Thompson eventually learned that C.P.S. never 

obtained those test results.

In a second interview, A.R.’s mother told Thompson that she had heard that 

appellee “had slept with another young girl who was related to an individual who 

owned a balloon shop in Baytown.” The balloon shop owner eventually told 

Thompson that he had contracted syphilis from appellee through anal intercourse.

Thompson finally talked to appellee on February 9, 1996. During the initial 

interview, appellee told Thompson he knew he was being accused of touching a 

little girl and giving her a sexually transmitted disease. Appellee denied the 
5

accusation. According to Thompson, appellee then pulled out a card from the 

Houston Health Clinic. Appellee told Thompson that he had been tested. 

Thompson admitted during the hearing that he did not attempt to obtain any 

medical records related to appellee’s alleged testing at the Houston Health Clinic. 

Thompson also admitted that he did not take possession of appellee’s card or make 

a copy of the card. Thompson did ask appellee to come to the police station to 

give a statement, which appellee did later that same afternoon. Thompson was 

then asked where appellee’s statement was presently located. Thompson admitted 

he did not know. Thompson also admitted that all of the statements he took as part 

of his investigation, and in fact his entire investigation file, were now missing.

On February 20, 1996, appellee returned to the police station where he took 

a polygraph examination. According to Thompson’s police report, the polygraph 

examiner informed him that, in the examiner’s opinion, appellee “had not been 

completely truthful with [Thompson] during [the] initial interview or in reference 

to the polygraph exam.” The actual polygraph examination results are missing.

Thompson acknowledged during the hearing that appellee’s polygraph 

examination was the last action he took in his investigation of the case. Thompson 

set the investigation aside at that point because he believed he had exhausted all 

investigative steps and still did not have enough evidence to arrest appellee.

2

 

Thompson’s decision to set the investigation aside was based, at least in part, on 

his belief that he needed a corroborating witness.3 Thompson denied that delaying 

 

2

Thompson did admit that, in hindsight and with the knowledge gained as a result of 

many years of experience, he believes he should have contacted the district attorney’s office for 

guidance. Thompson also admitted that he now believes his 1996 investigation uncovered 

sufficient evidence to establish there was probable cause to arrest appellee at that time.

3

Thompson believed he needed a corroborating witness because he was concerned about 

A.R.’s credibility. A.R. had talked during her video interview about events that Thompson 

learned had not actually occurred. Specifically, A.R. had mentioned that there had been a fire at 
6

the case was an effort to punish appellee or to gain a tactical advantage over him, 

and testified instead that the decision resulted from his inexperience as a new 

detective in 1996. The case then sat dormant for seven years. On September 29, 

2003, in response to pressure from his superiors to clear out old cases that were no 

longer being actively investigated, Thompson deactivated the case. When he 

deactivated the case, Thompson turned the entire file over to the Records Division 

for storage.

In early 2010, a now-adult A.R. contacted the Harris County District 

Attorney’s office to inquire why her case had never been prosecuted. The District 

Attorney’s office referred A.R. to the Baytown Police Department. A.R. spoke 

with Detective David Harrison at the Baytown Police Department. In response to 

A.R.’s call, Harrison reviewed A.R.’s forensic interview video, Thompson’s 

original investigation police report, and he also spoke directly with Thompson 

about his investigation. Harrison asked Thompson about the lack of medical 

records attached to the case and Thompson said he had had trouble obtaining 

medical records from C.P.S. Harrison worked on the case between January 21 and 

June 24, 2010, without uncovering any evidence that was not known in 1996, when 

Thompson set the investigation aside. Harrison then presented the case to Darin 

Darby, a Harris County child-abuse prosecutor, who accepted charges because he 

believed there was probable cause to file the case against appellee. 

At the conclusion of the evidentiary hearing, the trial judge provided an 

explanation for his decision to grant appellee’s motion to dismiss. The judge

determined that Thompson “intentionally stopped the investigation . . . at a point 

 

the Elm Street House a few days before her interview and her brother had died in the fire. 

Thompson’s concern grew out of the fact that A.R.’s mother denied there had been a fire at the 

Elm Street House and the mother’s admission that she had had a second child, but had given that 

child up for adoption. 
7

where he could have obtained [appellee’s] test results that would have exculpated 

[appellee].” The judge also stated that he found not credible Thompson’s 

testimony that Thompson did not believe he had probable cause in 1996. In 

particular, the judge stated that he did not believe Thompson’s testimony was 

credible that he could not obtain the syphilis testing medical records because the 

clinics used numbers rather than names. The judge also made the following 

pronouncement:

Thompson, although he stated he was presented with a card, he never 

goes any further than stating that he was presented with the card and 

specifically did not expand on that conversation, that [appellee] in 

handing him the card maintained his innocence and maintained that 

. . . the results were negative. I don’t find that testimony at all 

credible either, or the lack thereof, I don’t find that credible. I believe 

based on the testimony I heard that he was made fully aware not only 

that [appellee] had been tested, but that [appellee] had said, “I’m 

negative.”

The trial judge then found that Thompson “intentionally fail[ing] to obtain the 

results of [appellee’s] testing amounts to an actual and substantial prejudice to the 

Defense in this case.”

The trial judge then turned his attention to Harrison. The judge found that 

“Harrison’s testimony is completely void of any credibility, not deserving of any 

weight whatsoever.” Finally, the judge stated that he found “the officers in this 

case did act in bad faith or intentionally in order to gain a tactical advantage over 

the defendant in order to secure formal charges and with the specific intent to 

obtain a conviction and a sentence in this case.” No written findings of fact and 

conclusions of law were requested or signed in the case. This appeal followed.

ANALYSIS

In a single issue on appeal, the State contends the trial court abused its 
8

discretion when it granted appellee’s motion to dismiss the indictment. The State 

goes on to argue that appellee failed to meet his burden to provide evidence that 

the “State intentionally delayed this prosecution to gain a tactical advantage.” We 

agree with the State.

We apply a bifurcated standard of review when considering a trial court’s 

decision to dismiss a case. State v. Krizan-Wilson, 354 S.W.3d 808, 815 (Tex. 

Crim. App. 2011). We give almost total deference to a trial court’s findings of fact 

that are supported by the record, as well as any mixed questions of law and fact 

that rely upon the credibility of witnesses. Id. But when resolution of the case 

turns solely on questions of law or mixed questions that do not depend on 

credibility determinations, our review is de novo. Id.

Statutes of limitations are citizens’ primary protection from prosecution for 

unduly stale criminal charges. Ibarra v. State, 11 S.W.3d 189, 193 (Tex. Crim. 

App. 1999) (citing United States v. Marion, 404 U.S. 307, 322 (1971)). There is 

no statute of limitations for the offense at issue in this case. Tex. Code Crim. Proc. 

Ann. art. 12.01(1)(B) (West 2005 & Supp. 2012). The Due Process Clause of the 

United States Constitution provides additional, if limited, protection of an accused 

from “oppressive delay.” Krizan-Wilson, 354 S.W.3d at 814. Although we assess 

pre-indictment delay on a case-by-case basis, the Court of Criminal Appeals has 

instructed that proof of prejudice is a necessary but not sufficient element of a dueprocess claim, and that the due-process inquiry must consider the reasons for the 

delay. Id.

A defendant is entitled to relief for pre-indictment delay under the Due 

Process Clause when 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 or for some other bad-faith purpose. Id. at 814–15 
9

(citing Ibarra, 11 S.W.3d at 193). There must be proof of both elements. Id. at 

814. In addition, because the State is not required to conduct a continuous 

investigation and is also not required to file charges as soon as probable cause 

exists but before the State is satisfied the State will be able to establish a suspect’s 

guilt beyond a reasonable doubt, we may not infer bad faith from the existence of 

delay and prejudice. Id. at 814, 818–19. Appellee had the burden to prove that the 

State’s delay was an intentional device used to gain a tactical advantage or for 

some other improper purpose. Id. at 816. It is not enough for appellee to argue 

that the trial court may have disbelieved each and every witness who testified that 

the State had no negative intentions for the delay; he was required to present 

positive proof of such improper purpose. Id. 

Assuming without deciding appellee established the first element, we turn to 

the second. After a review of the record, which is summarized above, we conclude 

there is no evidence that the pre-indictment delay was intended to gain a tactical 

advantage over appellee or for some other bad-faith purpose. At most, appellee 

presented evidence that the pre-indictment delay was the result of inadequate

police work by Thompson, an inexperienced detective in 1996, not an effort on his 

part to gain a tactical advantage or for some other improper purpose. See State v. 

Krizan-Wilson, 321 S.W.3d 619, 626 (Tex. App.—Houston [14th Dist.] 2010),

aff’d, 354 S.W.3d 808 (Tex. Crim. App. 2011) (holding there was no evidence that 

the pre-indictment delay was intended to gain a tactical advantage or other 

improper purpose, but instead the only evidence indicated the delay was the result 

of a belief by investigators that the case was not winnable).

Our conclusion is supported by Thompson’s decision to deactivate the case 

in 2003, two years after the evidence indicates the syphilis testing medical records 

had been destroyed. If Thompson’s intent had been to prejudice appellee by 
10

waiting for potentially favorable evidence to disappear, he would have reopened 

the case at that point, not deactivated it. Moreover, undisputed evidence 

establishes that the only reason the police reopened the investigation in 2010 was 

the complainant contacted the police to ask why no one had ever been prosecuted. 

The evidence is also undisputed that, once the case was reopened, there were no 

further delays in the investigation.

The trial judge’s on-the-record explanation for his ruling does not change 

our analysis. Even if we disbelieve both investigating detectives’ testimony that 

the investigation was not delayed for an improper purpose, this disbelief cannot 

substitute for positive evidence that the delay was for an improper purpose. See 

Krizan-Wilson, 354 S.W.3d at 816 (“It is not enough for appellee to argue that the 

trial court may have disbelieved each and every witness that testified that the state 

had no negative intention for the delay, appellee must still present positive proof of 

such an improper purpose.”). The same principle applies if we disbelieve 

Thompson’s testimony that he did not think he had probable cause to file charges 

in 1996, because there is no requirement that investigators must press charges as 

soon as they have probable cause. Id. at 819. With respect to Harrison’s 

testimony, even though the trial judge found it devoid of credibility and it is 

undisputed that his investigation turned up no new evidence, there is still no 

positive proof that the delay was for an improper purpose. See Krizan-Wilson, 321 

S.W.3d at 626 (holding that the fact a later prosecutor decided to pursue the case 

even though no new evidence had been revealed during the twenty-three year delay 

is not evidence of improper purpose). Finally, the trial judge’s announced belief 

that Thompson was made fully aware not only that appellee had been tested, but 

also that the results of that test had been negative, cannot support the order of 

dismissal because there is no evidence in the record to support that belief. A 
11

determination that Thompson was not a credible witness cannot create evidence. 

No such evidence is found in the record. 

Because there is no evidence that the pre-indictment delay was used 

intentionally to gain a tactical advantage over appellee or for some other improper 

purpose, we hold the trial court erred in dismissing the indictment based on the 

delay.

4

 See Krizan-Wilson, 354 S.W.3d at 819–20. We sustain the State’s single 

issue on appeal.

CONCLUSION

Having sustained the State’s issue on appeal, we reverse the trial court’s 

order of dismissal and remand for further proceedings in accordance with this 

opinion.

/s/ J. Brett Busby

Justice

Panel consists of Justices Frost, Brown, and Busby.

Publish—Tex. R. App. P. 47.2(b).

 

4 Appellee’s motion to dismiss the indictment also included a ground asserting that his 

right to a speedy trial under the Sixth Amendment had been violated as a result of the fourteenyear pre-indictment delay. The trial court’s order granted appellee’s motion without specifying a 

ground. The State did not address the speedy-trial ground in its appellate brief and appellee did 

not file an appellate brief. We conclude the State was not obligated to address the speedy trial 

ground because the evidentiary hearing and the trial court’s explanation of its ruling focused 

exclusively on appellee’s Due Process Clause pre-indictment delay claim. See State v. White, 

306 S.W.3d 753, 760 (Tex. Crim. App. 2010) (“Under these circumstances, the State could have 

reasonably concluded that the trial court’s order granting White’s motion to dismiss was based 

only on the constitutional guarantees of due process and due course of law. Given that fact, the 

State, on appeal, was not obligated to argue why the trial court’s order could not have been 

proper under the Sixth Amendment speedy trial guarantee, and the court of appeals erred in 

holding otherwise.”). Accordingly, we express no view on appellee’s speedy-trial claim.