NUMBER 13-12-00289-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

ROBERT DALE JOHNSON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 163rd District Court

of Orange County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Longoria

Memorandum Opinion by Justice Benavides

By one issue, appellant Robert Dale Johnson asserts that the State violated his 

due process rights by delaying his indictment for burglary of a building. See TEX. PENAL 

CODE ANN. § 30.02(a)(2) (West 2011). We affirm.
2

I. BACKGROUND1

In December 2010, Johnson burglarized the liquor shed of Spanky’s Restaurant in 

Orange County, Texas. Spanky’s owner Mike Lemoine provided the Orange Police 

Department with surveillance footage of the burglary that purportedly depicted Johnson 

committing the act. Police opened an investigation but did not immediately arrest 

Johnson. 

On January 1, 2011, Johnson was arrested for an unrelated felony theft at 

Wal-Mart. Johnson was indicted for the felony theft offense on July 6, 2011, entered an 

open plea, and was sentenced to nine months in state jail. 

The State then indicted Johnson for the Spanky’s burglary on December 7, 2011. 

On March 2, 2012, Johnson pleaded guilty to the underlying offense and the trial court 

sentenced him to eighteen months’ imprisonment with the Texas Department of Justice, 

Institutional Division. This appeal ensued. 

II. PRE-INDICTMENT DELAY

By his sole issue, Johnson contends that the State’s one-year delay in indicting 

him for burglary of a building constituted an oppressive delay in violation of his right to 

due process under the Fifth and Fourteenth Amendments to the United States 

Constitution.

 

1

This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant 

to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 

73.001 (West 2005). 
3

A. Standard of Review and Applicable Law

Under the U.S. Constitution, due process requires dismissal of the indictment if a 

defendant shows that the pre-indictment delay caused (1) substantial prejudice to the 

defendant’s rights to a fair trial and (2) that the delay was an intentional device to gain 

tactical advantage over the accused. United States v. Marion, 404 U.S. 307, 322 

(1971); see Ibarra v. State, 11 S.W.3d 189, 193 (Tex. Crim. App. 1999); State v. McCoy, 

94 S.W.3d 296, 301 (Tex. App.—Corpus Christi 2002, no pet.). 

A “delicate judgment based on the circumstances of each case” is required in our 

review of whether a defendant’s rights to a fair trial were violated. Marion, 404 U.S. at 

325. Furthermore, the applicable statute of limitations is the primary assurance against 

bringing an unduly stale criminal charge. Ibarra, 11 S.W.3d at 193. In Texas, burglary 

of a building carries a three-year statute of limitations. See TEX. CODE CRIM. PROC. ANN. 

art. 12.01(7) (West Supp. 2011). 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. 

Ibarra, 11 S.W.3d at 193. 

Prosecutors are under no duty to file charges before they are satisfied they can 

prove a suspect's guilt beyond a reasonable doubt. McCoy, 94 S.W.3d at 301 (citing 

United States v. Lovasco, 431 U.S. 783, 791 (1977)). 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. McCoy, 94 S.W.3d at 301. 
4

B. Discussion

After applying the two-prong test to the present case, we conclude that Johnson’s 

due process rights were not violated. The burglary charge was filed within the 

three-year statute of limitations. Furthermore, nothing in the record shows that his 

rights to a fair trial were substantially prejudiced by the State’s one-year delay to indict 

him. Defendant’s fourth exhibit was admitted into evidence and illustrates the following 

timeline: 

 Date of Offense: 12/9/10

 Submitted to [District Attorney]: 9/16/11

 Indicted: 12/7/11

 [Attorney appointed]: 1/4/12

The record shows that despite the video evidence, Orange police attempted to 

discuss the burglary with Johnson in February 2011, prior to his sentencing in the felony 

theft case, but Johnson refused to speak with them. Moreover, it shows that the State 

indicted Johnson three months after the Orange police submitted the case to the district 

attorney’s office. We do not agree with Johnson’s argument that this delay was 

oppressive. See Lovasco, 431 U.S. at 794–95 (declining to adopt a rule which would 

require prosecutors to make charging decisions immediately upon assembling evidence 

sufficient to establish guilt). The trial court also stated that it equally considered in its 

sentencing ruling (1) the time Johnson lost and (2) what personal progress he has made 

during the time he may have lost, as shown by testimony. Finally, the record does not 

support Johnson’s argument that the State’s delay was intended to “keep [him] 

continuously incarcerated.” Accordingly, we overrule Johnson’s issue.
5

III. CONCLUSION

We affirm the trial court’s judgment. 

 

__________________________

GINA M. BENAVIDES,

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed the

11th day of April, 2013.