84 F.3d 470
318 U.S.App.D.C. 30
Charles BRIDGES, Appellant,v.Sharon Pratt KELLY, et al., Appellees.
No. 95-7038.
United States Court of Appeals,District of Columbia Circuit.
Argued April 22, 1996.Decided May 31, 1996.

[318 U.S.App.D.C. 31] Appeal from the United States District Court for the District of Columbia (No. 94cv01559).
Charles Bridges, appearing pro se, argued the cause and filed the briefs for appellant.
Martin B. White, Assistant Corporation Counsel, argued the cause for appellees, with whom Charles F. Ruff, Corporation Counsel, Charles L. Reischel, Deputy Corporation Counsel, and Lutz A. Prager, Assistant Deputy Corporation Counsel, were on the brief.  Garland Pinkston, Jr., Principal Deputy Corporation Counsel, entered an appearance.
Before EDWARDS, Chief Judge, WALD and SENTELLE, Circuit Judges.
Opinion for the Court filed by Chief Judge EDWARDS.
HARRY T. EDWARDS, Chief Judge:

1
Appellant Charles Bridges was terminated from his position as an attorney-advisor in the District of Columbia's Department of Administrative Services ("DAS") pursuant to a 1993 reduction-in-force ("RIF") action.  Appellant brought suit in federal court against the District of Columbia ("D.C." or "the District") and various D.C. officials, alleging that his 1993 termination was the last in a series of actions taken against him in retaliation for his filing of a lawsuit challenging a 1991 RIF notice that was canceled before it took effect.  In his complaint, which alleges violations of rights protected under, inter alia, 42 U.S.C. § 1983 (1994), the Veterans Reemployment Act, 38 U.S.C. § 2021 (1988) ("VRA"), and the United States Constitution, appellant requests reinstatement with associated benefits, a total of $8 million in compensatory damages, and a total of $20 million in punitive damages.

2
Prior to filing his action in District Court, appellant exercised his right under D.C. law to appeal his 1993 termination to the District's Office of Employee Appeals ("OEA").  Although this administrative appeal was filed on or about August 13, 1993, and the statutory deadlines for OEA action have long passed, appellant's OEA claim has not yet been adjudicated and remains pending before the local agency.  On the assumption that the matters in issue in the federal court action could be pursued before the OEA, the District Court applied the doctrine of equitable restraint, set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny, and dismissed appellant's complaint.

3
Appellees concede in their brief before this court that a Younger-grounded dismissal was improper as to certain of appellant's claims, but not as to all.  Brief for Appellees at 6, 8, 14.  We find that, even assuming, arguendo, that the Younger doctrine may be employed in lawsuits involving the District of Columbia, Younger clearly has no application here.  This is because, in the instant case, appellant has raised federal claims and sought relief that are beyond the compass of the D.C. administrative/judicial system.  In particular, it is conceded that appellant could not receive from the D.C. system the full panoply of remedies available to him from the District Court in connection with his federal claims.  On this record, we hold that there was no basis for a dismissal of appellant's lawsuit pursuant to Younger.   Accordingly, we reverse and remand for further proceedings.1[318 U.S.App.D.C. 32] I. BACKGROUND

4
A. The Complaint Allegations and Prayer for Relief

5
According to his complaint, appellant held a position of attorney-advisor and functioned as a claims officer in the District's DAS for five years prior to his termination in 1993.  Appellant's troubles with the District began in the Fall of 1991, shortly after his return from active service with the United States Army Reserves in the Persian Gulf War.  By letter dated October 1, 1991, the District notified appellant that, pursuant to a RIF being undertaken pursuant to the District of Columbia Government Comprehensive Merit Personnel Act of 1978 Emergency Amendment Act of 1991, 38 D.C.Reg. 4935 (1991), he would be terminated effective November 8, 1991.

6
Appellant filed a lawsuit challenging the separation notice as violative of, inter alia, his retention rights under the VRA, which mandates that reservists returning to their old jobs following a period of active duty cannot be discharged, except for cause, for a period of one year.  See 38 U.S.C. §§ 2021(b)(1) & 2024(b) (1988).  The complaint states that the United States Department of Labor ("DOL") also intervened on appellant's behalf in contesting the separation notice.  Complaint p 5, reprinted in Appellant's Appendix ("App.")  Section B;  see also 38 U.S.C. § 2025 (1988) (The VRA directs DOL to assist veterans in resuming their former positions upon returning from active duty.).  In recognition of appellant's retention protection, the District canceled the October 1 separation notice on October 28, 1991.2

7
Appellant alleges in his complaint that, following the District's rescission of the October 1991 separation notice, his supervisors "subjected [him] to a continuous pattern of harassment for nearly two years ... in retaliation for [his] law suit" challenging the separation notice.  Complaint pp 5, 17, reprinted in App.  Section B.  According to appellant, this harassment entailed a variety of adverse personnel actions and culminated in the issuance of a second RIF-based separation notice on June 18, 1993, pursuant to which appellant was terminated from employment with the District on July 23, 1993.

8
Appellant exercised his right under D.C. law to appeal his 1993 termination to the District's OEA,3 with a subsequent right to judicial review in the D.C. Superior Court.4  Section 1-606.3 of the D.C.Code provides that the OEA Hearing Examiner shall render [318 U.S.App.D.C. 33] a decision "within 120 days, excluding Saturdays, Sundays, and legal holidays, from the date of the appellant's filing of the appeal with the [OEA]," the only exception being that the OEA "may promulgate rules to allow a Hearing Examiner a reasonable extension of time if extraordinary circumstances dictate that an appeal cannot be decided within the 120-day period."   D.C.CODE ANN. § 1-606.3(c) (1992).  However, although appellant filed his administrative appeal on or about August 13, 1993, Brief of the Appellant at 25, and although the OEA apparently failed to extend the statutory time frame for adjudication of the case, id. at 16, appellant's OEA appeal has not yet been adjudicated and remains pending before the OEA.5  Appellant alleges in his complaint that his OEA appeal "has been unreasonably delayed beyond the required statutory 120 day time frame for adjudication, depriving [appellant] of due process of law[ ].  OEA has failed to address three ... consecutive defaults by the District in that case;  and the administrative process does not provide complete and adequate relief to [appellant]...."  Complaint p 5, reprinted in App.  Section B.

9
In Counts One through Three, the complaint further alleges that the manner in which the District effected appellant's 1993 termination, the pattern of harassment preceding the termination, and the District's motive for subjecting appellant to termination all represent conduct actionable under 42 U.S.C. § 1983.  Complaint pp 10-42, reprinted in App.  Section B.  In particular, appellant alleges that his discharge was "a sham, an illegal scheme/device to oust him from his job ... in obvious reprisal for a pending lawsuit and subsequent appeal, as well as for other illegal reasons."   Id. p 42, reprinted in App.  Section B.  Finally, Count Four of the complaint alleges a section 1983 claim for intentional and/or negligent infliction of emotional distress.  Id. pp 43-44, reprinted in App.  Section B.

10
Appellant's prayer for relief states as follows:

11
(1) All compensatory damages in the sum of $8,000,000 [$2 million for each of the four counts of the complaint], or as the Court believes just and due, and it is requested that the court grant [appellant] reinstatement to his job with full seniority rights, back pay with accumulated raises, restoration of annual leave, accumulated sick leave, pension entitlements, and other benefits [appellant] is entitled to by his employment and damages for humiliation, pain, suffering, embarrassment, loss of reputation, nervous condition, the intentional and/or negligent infliction of mental and emotional distress, anxiety, and harassment.

12
(2) Punitive Damages in the amount of $20,000.00 [intended to read "$20,000,000.00 "6].

13
(3) The cost of this action and [appellant's] expenses incurred in this matter, including reasonable attorney fees.  (42 U.S.C. § 1988)

14
(4) And such other and further relief as this court may deem just and proper in law and equity.

15
Id. at 19-20, reprinted in App.  Section B.

B. Proceedings Before the District Court

16
Appellant filed his complaint before the District Court on July 15, 1994.  One week later, on July 22, 1994, the District Court ordered Corporation Counsel for the District [318 U.S.App.D.C. 34] to respond by August 22, 1994, regarding whether the complaint should be dismissed.  On August 22, Corporation Counsel filed Defendants' Motion to Dismiss the Complaint, arguing that, in light of the pending OEA appeal concerning appellant's termination, the District Court should dismiss appellant's complaint both under the Younger doctrine of equitable restraint and for failure to exhaust local administrative remedies.  In support of its dismissal arguments, Corporation Counsel characterized appellant's complaint as follows:

17
In essence, [appellant] merely seeks to have this Court review his employment termination from the District.  While the complaint attempts to set forth allegations to give rise to federal jurisdiction under 42 U.S.C. § 1983, the complaint sets forth allegations which amount to no more than [appellant] seeking to have this Court take the place of the OEA and its authority to review [appellant's] termination.

18
Memorandum of Points and Authorities in Support of Defendant District of Columbia's Motion to Dismiss the Complaint at 5.

19
At a scheduled status hearing held on January 17, 1995, the trial judge decided to hear oral argument from the parties concerning the issues presented by the pending motion to dismiss.  Corporation Counsel, in addition to the equitable restraint and exhaustion arguments raised in its filings, also presented yet a third ground for dismissing appellant's complaint.  According to Corporation Counsel, appellant's federal constitutional claims boiled down to due process arguments, which could be asserted before the OEA (and on appeal to the D.C. Superior Court) along with "any other rights that [appellant] may wish to bring up."   Transcript of Status Hearing ("Tr.") at 5, reprinted in App.  Section C.  Thus, Corporation Counsel argued that appellant had "not been deprived of any substantive due process rights;"  rather, according to Corporation Counsel, appellant already was pursuing under the D.C. administrative/judicial system "all the rights that he is entitled to."   Id.

20
At the conclusion of the parties' arguments, the trial judge stated as follows:

21
Now, the best thing that I can do for you, Mr. Bridges, is this.  I am going to dismiss these claims in view of the pendency of the claim before the District of Columbia Board, pursuant to the Comprehensive Merit Personnel Act, without prejudice if you lose, to assertion of these claims in the Superior Court.

22
In other words, I am not going to be the Judge that throws you out of court.  I am not going to do that to a lawyer.  I am just not going to do it.  I could dismiss it with prejudice, I think, but I am not going to do that.  I am going to do you a favor and dismiss it without prejudice after this administrative adjudication takes place, so that you will not be impaired.

23
I have written a brief memorandum to that effect.

24
Id. at 11, reprinted in App.  Section C.

25
On January 18, 1995, the District Court filed a four-page Order disposing of the case.  Bridges v. Kelly, Civ. Action No. 94-1559 (D.D.C. Jan. 18, 1995) ("Order"), reprinted in App.  Section D.  The court accepted the view espoused by Corporation Counsel that, "[a]lthough [appellant] has filed several claims under 42 U.S.C. § 1983, at bottom [appellant] seeks reinstatement of his former position."   Order at 2, reprinted in App.  Section D.  Without mention of Corporation Counsel's arguments regarding exhaustion of administrative remedies or the due process nature of the complaint's federal allegations, the District Court proceeded to apply the Younger doctrine of equitable restraint to dismiss appellant's complaint based on the following findings:

26
First, there is an ongoing state proceeding because [appellant's] appeal of his employment termination is now pending before the [OEA].  By statute, the OEA is the proper entity to hear such an appeal.  See D.C.Code § 1-606.3(d).

27
Second, [appellant's] assertion of improper removal from his employment position pursuant to the District's official reduction-in-force implicates an important state interest, due to the District's need to manage and supervise its public employee labor force.

28
[318 U.S.App.D.C. 35] Last, there is an adequate opportunity for [appellant] to raise federal questions in the pending administrative action.  Pursuant to the statute that [appellant's] administrative action is now proceeding under, a public employee has the right to judicial review of an adverse ruling by the D.C.Superior Court, then the D.C.Court of Appeals, and if necessary, the United States Supreme Court.  See D.C.Code, §§ 1-606.3(d), 11-102 and 11-721.

29
Id. at 3-4, reprinted in App.  Section D.  The court dismissed appellant's complaint "without prejudice, from the dockets of this Court, subject to [appellant's] alleged right to later bring an appropriate claim in the District of Columbia Superior Court."   Id. at 4, reprinted in App.  Section D.7

II. ANALYSIS

30
"[T]he doctrine of Younger v. Harris ... and its progeny restrains federal courts from interfering in ongoing state judicial proceedings."  District Properties Assocs. v. District of Columbia, 743 F.2d 21, 27 (D.C.Cir.1984).  The Supreme Court's espousal of the restraint doctrine "was based partly on traditional principles of equity, but rested primarily on the 'even more vital consideration' of comity."  New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350, 364, 109 S.Ct. 2506, 2516, 105 L.Ed.2d  298 (1989) ("NOPSI ") (quoting Younger, 401 U.S. at 44, 91 S.Ct. at 750-51) (citation omitted);  see also Hoai v. Sun Ref. & Mktg. Co., 866 F.2d 1515, 1517 (D.C.Cir.1989) ("Under the Younger ... doctrine of ... equitable restraint, a federal court may dismiss an action when there is a direct conflict between the exercise of federal and state jurisdiction and considerations of comity and federalism dictate that the federal court should defer to the state proceedings.").

31
Nevertheless, because of "the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them," Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976), the appropriateness of refraining "from the exercise of federal jurisdiction is the exception, not the rule," id. at 813, 96 S.Ct. at 1244;  see also Ankenbrandt v. Richards, 504 U.S. 689, 705, 112 S.Ct. 2206, 2215-16, 119 L.Ed.2d 468 (1992) (The Court observed that doctrines permitting federal courts to abstain from exercising their jurisdiction "rarely should be invoked.");  Colorado River, 424 U.S. at 813, 96 S.Ct. at 1244 (" '[A] doctrine of abstention ... is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.' "  (quoting [318 U.S.App.D.C. 36] County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S.Ct. 1060, 1062, 3 L.Ed.2d 1163 (1959))).  Thus, the Supreme Court has made clear that the Younger doctrine must be applied in accordance with "the rule that only exceptional circumstances justify a federal court's refusal to decide a case in deference to the States."   NOPSI, 491 U.S. at 368, 109 S.Ct. at 2518.   We find no such circumstances present in the instant case and therefore reverse the District Court's ruling that Younger requires dismissal of appellant's federal complaint.8

32
For the Younger doctrine to apply,

33
a rigid three-prong test must be satisfied:  first, a federal court may dismiss a federal claim only when there are ongoing state proceedings that are judicial in nature;  second, the state proceedings must implicate important state interests;  third, the proceedings must afford an adequate opportunity in which to raise the federal claims.

34
Hoai, 866 F.2d at 1518 (citing Middlesex County Ethics Comm. v. Garden State Bar  Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982)).  We note at the outset that appellees concede in their brief that it was error for the trial court to apply Younger to appellant's claims regarding "retaliatory" actions other than appellant's actual employment termination, because the record is inadequate to establish that the other adverse personnel actions allegedly taken against appellant are the subject of any ongoing District proceeding, as required under the first prong of Younger analysis.  See Brief for Appellees at 6, 8, 14.  However, we also find that dismissal was inappropriate as to appellant's termination-related claims as well.

35
We agree with appellees that the OEA appeal process, with the attendant review in the D.C. Superior Court and D.C. Court of Appeals, is judicial in nature,9 and that the District has an important interest in its own ability to implement reductions in the size of its workforce.  However, we find that the District Court erred in concluding that [318 U.S.App.D.C. 37] the OEA proceeding, together with the availability of judicial review in the D.C. courts, presents an adequate forum in which appellant can fully and fairly pursue his federal claims.  The most obvious basis for our finding on this issue, and the one on which we rest, is the inability of the D.C. system to grant appellant the full relief requested in connection with his federal claims.

36
Contrary to the District Court's assertion, appellant seeks much more than simply reinstatement to his former position, with associated back pay and benefits.  In connection with the termination-related claims stated in Counts One and Three of his complaint, appellant seeks a total of $4 million in compensatory damages and $10 million in punitive damages;  and appellant's 1993 termination is part of the basis for Count Four's allegation of intentional and/or negligent infliction of emotional distress, pursuant to which appellant seeks an additional $2 million in compensatory damages and $5 million in punitives.  See Complaint at 10-11, 15-18, reprinted in App.  Section B.  We find nothing in the D.C.Code, and appellees cite nothing, authorizing the OEA to grant relief such as punitive damages and compensatory damages (in excess of back pay and benefits) for harms flowing from tortious conduct.10  Nor have we found anything suggesting that, on appeal from the OEA, the D.C. Superior Court or Court of Appeals could entertain requests for relief that were not cognizable before the OEA.11  Indeed, counsel for the District conceded at oral argument that the OEA and reviewing D.C. courts could not provide appellant the full relief he seeks under his section 1983 claims.

37
Following our decision in District Properties, we hold here that the inability of the D.C. system to afford appellant the full relief he seeks in connection with his federal claims is sufficient to preclude dismissal under Younger.   In District Properties--where appellant landlords challenged the operation of the District agency responsible for administering local rent control laws--we observed that the landlords' charges, if proven true, might well entitle them "to broader ... forms of relief" than were available from the agency or under the judicial review procedures authorized by D.C. law.  743 F.2d at 26.   Therefore, we rejected the District Court's application of Younger equitable restraint:

38
Younger principles do not require dismissal of appellants' complaint, for there are no ongoing proceedings in the local [system] in which appellants could raise their federal ... claims....  [A]ppellants' claims are in a number of respects considerably broader than the claims they were able to assert in the proceedings in local courts or before [the agency] itself.  And the relief they seek in this case is far broader than that which the local court could have granted in the administrative review proceeding.   Therefore, the District Court erred in its ... holding that this case [318 U.S.App.D.C. 38] should be dismissed on  Younger grounds.  There being no pending state ... proceedings that would have afforded appellants a full and fair opportunity to litigate their [federal] claims, the predicate for Younger abstention was simply absent in this case.

39
Id. at 28 (emphasis added).  The same reasoning applies here.  Accordingly, we reverse the District Court's decision dismissing appellant's complaint on grounds of equitable restraint.

III. CONCLUSION

40
For the reasons set forth above, the District Court's dismissal of appellant's complaint is reversed and the case remanded for further proceedings consistent with this opinion.

41
So ordered.

1
 We find no merit in appellant's claim of bias on the part of the District Court, and we reject his request to reassign this case to another judge
In addition, apart from a warning, which we hereby issue, we decline to take further disciplinary action against appellees' counsel for his failure to comply with filing deadlines established by the court.  Although counsel's conduct was careless, it was not attributable to any willful conduct and it caused no prejudice to appellant, so no sanction other than a warning is warranted in this instance.

2
 An appeal of appellant's lawsuit challenging the 1991 RIF action remained pending before this court until April 26, 1994, when the case was dismissed as moot, because "[a]ppellant's employment with the D.C. government was never terminated, and appellant failed to amend his complaint to allege any injury resulting from mere notice of termination."  Bridges v. District of Columbia, No. 92-7224 (D.C.Cir.1994) ("Judgment")

3
 The D.C. Court of Appeals has described the creation and role of the OEA as follows:
The Merit Personnel Act was enacted to establish a comprehensive merit-based personnel system for employees of the District of Columbia.  In order to ensure compliance with the merit system principles set forth in the Act, its drafters created the OEA, a quasi-judicial body empowered to review final agency decisions affecting, inter alia, performance ratings, adverse actions, and employee grievances.  Although the Act does not define the standards by which the OEA is to review these decisions, it is self-evident from both the statute and its legislative history that the OEA is not to substitute its judgment for that of the agency and that its role ... is simply to ensure that managerial discretion has been legitimately invoked and properly exercised.  Indeed, the OEA's own regulations state that it will uphold an agency decision unless (1) it is unsupported by substantial evidence, (2) there was harmful procedural error, or (3) it was not in accordance with law or applicable regulations.
Stokes v. District of Columbia, 502 A.2d 1006, 1009-10 (D.C.1985) (internal quotation and citations omitted).

4
 D.C.CODE ANN. § 1-606.3 (1992) states, in part, as follows:
(a) Any employee may appeal a final agency decision affecting ... a reduction-in-force ... to the Office [of Employee Appeals] upon the record and under such other rules and regulations which the Office may issue.
(d) Any employee or agency may appeal the decision of the Office to the Superior Court of the District of Columbia for a review of the record and such Court may affirm, reverse, remove, or modify such decision, or take any other appropriate action the Court may deem necessary.

5
 At oral argument, appellant suggested that he had received authorization from the D.C. Court of Appeals to withdraw his OEA appeal and that he had in fact voluntarily dismissed the agency case during the pendency of his appeal before this court.  Our review of the parties' post-argument filings, however, indicates that the OEA has yet to rule on appellant's request for voluntary dismissal, and, as near as we can tell, the D.C. Court of Appeals has offered no opinion on the matter other than to dismiss for a lack of jurisdiction appellant's petition for a writ of mandamus ordering the OEA to rule on his pending motions.  Thus, appellant's administrative appeal is apparently still pending before the OEA

6
 Two weeks after filing his complaint, appellant submitted a notice of typographical errors stating, in part, as follows:  "Page 20, Item 2, DAMAGES, the cumulative damages total from Counts 1-4 should read $20,000,000.00 in lieu of $20,000.00."   PRAECIPE p 2.  This correction was made in accordance with the $5 million appellant requested as punitive damages for each of the four counts of the complaint

7
 The District Court referred to its dismissal of appellant's complaint as an application of the "abstention doctrine" set forth in Younger v. Harris.   Order at 2-3, reprinted in App.  Section D.  However, in the interest of clarity, this opinion will refer to the doctrine enunciated in Younger v. Harris as the doctrine of "equitable restraint," pursuant to which a federal case is dismissed (i.e., removed from the federal court's jurisdiction) on considerations of comity and federalism;  equitable restraint is distinct from the "abstention" doctrine set forth in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), which does not result in dismissal, but rather serves to delay federal adjudication while a local forum resolves pertinent issues of local law.  See Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 1697, 36 L.Ed.2d 488 (1973) ("Unlike those situations where a federal court merely abstains from decision on federal questions until the resolution of underlying or related state law issues ... Younger v. Harris contemplates the outright dismissal of the federal suit, and the presentation of all claims, both state and federal, to the state courts."  (footnote omitted));  Zalman v. Armstrong, 802 F.2d 199, 207 n. 11 (6th Cir.1986) ("Younger ... requires dismissal of the complaint rather than retention of jurisdiction as is the case under Pullman abstention.");   see also Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 477-81, 97 S.Ct. 1898, 1902-05, 52 L.Ed.2d 513 (1977), for a discussion of the differing considerations underlying Younger equitable restraint and Pullman abstention.  See also Hoai v. Sun Ref. & Mktg. Co., 866 F.2d 1515 (D.C.Cir.1989)
Despite the District Court's curious statement that appellant's complaint was being dismissed "without prejudice," it seems clear that the intention of the court and the understanding of the parties was that appellant's complaint was being fully removed from the District Court's jurisdiction pursuant to the teachings of Younger and its progeny.  We assume that what the District Court meant to say is that, in dismissing, the federal court was rendering no judgment on the merits.  In any event, this opinion will analyze the court's dismissal of appellant's complaint as an application of the Younger doctrine of equitable restraint.

8
 Because we find the facts of this case outside the scope of Younger's equitable restraint doctrine, we need not, and do not, confront the still-open question avoided by previous panels of this court regarding the extent to which Younger applies at all in situations where the ongoing, non-federal proceeding is before an arm of the District of Columbia.  In LaShawn A. v. Kelly, 990 F.2d 1319, 1322 (D.C.Cir.1993), cert. denied,  510 U.S. 1044, 114 S.Ct. 691, 126 L.Ed.2d 659 (1994), we recently stated as follows:
This Court has never decided whether the District of Columbia is a state for Younger abstention purposes.  Instead, every time the question has arisen, we have assumed that the doctrine applies to the District and nonetheless determined, in light of the facts of each particular case, that Younger abstention has not been appropriate.  See, e.g., District Properties Assocs. v. Dist. of Columbia, 743 F.2d 21, 28 n. 4 (D.C.Cir.1984);  Family Div. Trial Lawyers v. Moultrie, 725 F.2d 695, 701 n. 7 (D.C.Cir.1984).  In the present case, we again find it unnecessary to reach the issue, because Younger abstention would not be required here even if the doctrine applied to the District with full force.
But cf. Hoai, 866 F.2d at 1517, 1519 (In a case where the District Court stayed proceedings in an attempt to avoid "questions arguably posed by Younger," the court found that an ongoing action in D.C.Superior Court satisfied the "ongoing state proceedings" prong of Younger analysis.).  Like the panels before us, we merely assume, arguendo, but do not decide, that the Younger doctrine applies to the District.

9
 On the other hand, we are not at all certain that the OEA proceeding in this case can be considered "ongoing" for Younger purposes.  Appellant makes a powerful argument that the District agency has defaulted on its statutory directive to issue a decision "within 120 days, excluding Saturdays, Sundays, and legal holidays, from the date of the appellant's filing of the appeal with the Office."   D.C.CODE ANN. § 1-606.3(c) (1992).  Far from being resolved within the 120-day period mandated by the statute, appellant's OEA appeal has languished for almost three years.  According to appellant, and the District has stated nothing to the contrary, OEA did not even assign a judge until a year after appellant filed his administrative appeal, dispositive motions filed before the agency years ago still have not been ruled upon, and the agency never exercised its statutory option to promulgate rules allowing "a reasonable extension of time if extraordinary circumstances dictate that an appeal cannot be decided within the 120-day period."   Id.;  see also Brief of the Appellant at 25;  Reply Brief for Appellant at 11-12.  Under these circumstances, it is questionable whether a Younger-based dismissal of appellant's federal complaint was appropriate because there simply is no "ongoing" local proceeding.  However, we need not decide this issue, because we find the inadequacy of the relief available to appellant through the D.C. system to be a more apparent basis for reversal

10
 The D.C.Code simply states that "[i]n any appeal taken pursuant to this section [including an appeal of a final agency decision affecting a reduction-in-force], the [OEA] shall review the record and uphold, reverse, or modify the decision of the agency."   D.C.CODE ANN. § 1-606.3(a), (b) (1992).  Although there is case law to support appellees' contention that the OEA is empowered to order reinstatement with back pay and some associated benefits, Brief for Appellees at 11;  see also District of Columbia v. Thompson, 593 A.2d 621, 635 & n.25 (D.C.)  (The court observed that an employee who files an appeal before the OEA is "able to seek reinstatement, and perhaps back pay."), cert. denied, 502 U.S. 942, 112 S.Ct. 380, 116 L.Ed.2d 331 (1991), such relief is far narrower than the remedies appellant requests from the District Court

11
 To the contrary, it appears that D.C. courts reviewing decisions of the OEA apply the "arbitrary and capricious" standard typical for judicial review of agency action.  See Office of the Dist. of Columbia Controller v. Frost, 638 A.2d 657, 660 (D.C.1994) ("[W]e examine the agency record to determine whether there is substantial evidence to support OEA's findings of fact, or whether OEA's action was arbitrary, capricious, or an abuse of discretion."  (internal quotation omitted)).  It would seem that, as a necessary corollary of this standard of review, a D.C. court hearing an appeal from the OEA would not entertain claims and arguments not raised, or not eligible to be raised, before the agency.  Cf. Hessey v. Burden, 615 A.2d 562, 568 & n. 9 (D.C.1992) (The court noted that the language of section 1-606.3(d) authorizing "appeal" of an OEA decision to the Superior Court was to be contrasted with the language of a different D.C.Code section deemed to authorize an "original proceeding" in which the court could exercise de novo review and address matters not considered by the agency.)


                                                                              ACCEPTED
                                                                          01-15-00367-CR
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                     12/7/2015 7:22:07 PM
                                                                    CHRISTOPHER PRINE
                No. 01 - 15 - 00367- CR                                            CLERK

    IN THE FIRST DISTRICT COURT OF APPEALS FILED IN
              AT HOUSTON, TEXAS        1st COURT OF APPEALS
                                           HOUSTON, TEXAS
                                                12/7/2015 7:22:07 PM
=============================================
                                      CHRISTOPHER A. PRINE
                                                       Clerk

          REYNALDO ZAMORA
                       Appellant

                           v.

          THE STATE OF TEXAS,
                       Appellee

=============================================
  Appeal from Convictions in Cause Numbers CR 87-0140,
     in the 22nd District Court of Hays County, Texas,
             Hon. Bruce Boyer, Judge Presiding
=============================================
                BRIEF FOR APPELLANT
=============================================

                   Respectfully submitted,

                   Law Office of Alexander L. Calhoun
                   State Bar No.: 00787187
                   4301 W. William Cannon Dr., Ste. B-150, # 260
                   Austin, TX 78749
                   Tele: 512/ 420 - 8850
                   Fax: 512/ 233- 5946
                   Cell: 512/731-3159
                   Email: alcalhoun@earthlink.net

             Oral Argument is Not Requested
             STATEMENT CONCERNING ORAL ARGUMENT

      Counsel believes the present case can be decided upon the briefs and that

oral argument will not significantly assist the Court in its review of the case.
                                      TABLE OF CONTENTS

STATEMENT CONCERNING ORAL ARGUMENT ............................................ I

TABLE OF CONTENTS .......................................................................................... ii

CERTIFICATE OF PARTIES ................................................................................. iii

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT OF THE CASE .................................................................................. 1

ISSUE PRESENTED ................................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ...................................................................... 12

POINT OF ERROR NUMBER ONE ...................................................................... 13

        THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
        SPEEDY TRIAL IN LIGHT OF THE EXTRAORDINARY PASSAGE OF TIME
        AND STATE’S LACK OF DILIGENCE IN LOCATING APPELLANT
        DESPITE HIS FREQUENT INCARCERATION.

CONCLUSION AND PRAYER ............................................................................. 23

CERTIFICATE OF SERVICE ................................................................................ 24

CERTIFICATE OF COMPLIANCE ....................................................................... 25

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                ii
                             CERTIFICATE OF PARTIES

       Pursuant to Rule 38.1(a), Tex.R.App. Pro., Appellant presents the following

persons who are parties to, or have an interest in the final judgment in this cause,

so that the Court may determine whether its members are disqualified or should

recuse themselves:

Mr. Reynaldo Zamora,                               Texas Department of Criminal Justice
TDCJ # 01989227                                    TDCJ Ellis Unit

Mr. Alexander L. Calhoun, App. Atty                4301 W. William Cannon Dr.,
                                                   Ste. B-150, # 260, Austin, TX 78749

Ms. Will Holgate, Trial Atty                       5837 B Hiline Road, Austin,
                                                   Texas 78734

Mr. Wes Mau, Dist. Atty                            Hays County Government Center,
                                                   712 South Stagecoach Trail,
                                                   Ste.2507, San Marcos, TX 78666

Mr. Brian Erskine, &                               Hays County Government
Raphael Guerrero, Asst. Dist. Attys                712 South Stagecoach Trail, Ste.
                                                   2507, San Marcos, TX 78666

Hon. Bruce Boyer Trial Judge                       Hays County Government Center,
                                                   712 South Stagecoach Trail,
                                                   San Marcos, TX 78666

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                iii
                                     INDEX OF AUTHORITIES

Constitutions:

Texas Const., Article I, § 10 .................................................................................... 13

U.S. Const., Amend. VI ........................................................................................... 13

U.S. Const., Amend. XIV ........................................................................................ 13

Cases:

Barker v. Wingo, 407 U.S. 514 (1972) ..................................... 12, 13, 16, 18, 19, 20

Cantu v. State, 253 S.W.3d 273 (Tex. Cr. App. 2008) ............................................ 13

Deluna v. State, 05-10-01339-CR (Tex.App. - Dallas 2012) (unpublished) .......... 17

Doggett v. United States, 505 U.S. 647(1992).............................................14, 19, 20

Ervin v. State, 125 S.W.3d 542 (Tex.App. - Hous. [1st Dist.] 2002)                                , 15, 16

Gonzales v. State, 435 S.W.3d 801 (Tex.Cr.App. 2014) ............................18, 19, 20

Harris v. State, 827 S.W.2d 949, 956 (Tex.Cr.App. 1992) ..................................... 14

Harris v. State, 986 S.W.2d 619 (Tex.App. - Tyler 1997) ...................................... 20

Klopfer v. North Carolina, 386 U.S. 213 (1967) ..................................................... 13

Maddux v. State, 825 S.W.2d 511 (Tex.App.-Hous. [1st Dist.] 1992) ................... 20

Moore v. Arizona, 414 U.S. 25 (1973) .................................................................. 19

McGregor v. State, 394 S.W.3d 90 (Tex.App. - Hous. [1st Dist.] 2012) .........13, 14

Phillips v. State, 650 S.W.2d 396 (Tex.Cr.App. 1983) ...............................15, 20, 21

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                iv
Puckett v. State, 279 S.W.3d 434 (Tex.App. - Texarkana 2009)............................. 20

Rivera v. State, 990 S.W.2d 882 (Tex.App. - Austin 1999) .................................... 14

State v. Kuri, 846 S.W.2d 459 (Tex.App. - Hous. [14th Dist.] 1993) .................... 20

State v. Owens, 778 S.W.2d 135 (Tex.App. — Hous. [1st Dist.] 1989) ............... 21

State v. Smith, 76 S.W.3d 541 (Tex.App.- Hous. [14th Dist.] 2002) ..................... 18

Zamorano v. State, 84 S.W.3d 643 (Tex.Cr.App. 2002) ........................................ 14

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                v
TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:

       COMES NOW, before the Court, Appellant, by and through his attorney of

record, and pursuant to Rule 38.1, Tex.R.App.Pro., files this brief on appeal, and

would show the Court as follows:

                            STATEMENT OF THE CASE

       Appellant was charged with the felony offense of Aggravated Kidnaping.

[Clerk’s Record (“C.R.”): 6].         The jury convicted him of the charged offense.

[C.R.: 138 - 140].       Sentencing was held to the trial court, which assessed a

punishment at 60 years confinement in the Texas Department of Criminal Justice

(TDCJ). [C.R.:139].

       Pursuant to a motion for extension due to an incomplete record, this brief

will be timely if filed by December 7, 2015.

                                  ISSUE PRESENTED

Point of Error Number One

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
       SPEEDY TRIAL IN LIGHT OF THE EXTRAORDINARY PASSAGE OF
       TIME AND STATE’S LACK OF DILIGENCE IN LOCATING APPELLANT
       DESPITE HIS FREQUENT INCARCERATION.

                               STATEMENT OF FACTS

       The present case arises from the denial of Appellant’s motion for Speedy

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                1
Trial    due to the delay in prosecution of his 1987 charge for Aggravated

Kidnaping in Hays County, Texas. Appellant did not appear for trial in August

1987 after which the case lay dormant until 2013 when Appellant was finally

arrested on a warrant issued on the case by Hays County.

        A.    The Speedy Trial Hearing

        Following his apprehension in 2013, Appellant filed a Motion to Dismiss

for Lack of a Speedy Trial.          [C.R.: 19 - 25]. Appellant testified as the sole

witness at the hearing on his motion.          Appellant’s date of birth was March 28,

1954. [2 R.R.: 8]. In 1987, after the charges arose, he had been in a car accident

resulting in a 52-day coma. [2 R.R.: 9 - 10; 3 R.R.: 37].          The resulting brain

injuries from the coma affected his memory of events. [2 R.R.: 9 - 10; 3 R.R.:

38].    He had not shown up for trial in August 1987 because he had now known

about the trial setting, a residual effect of his injuries. [2 R.R.: 10].

        Appellant was subsequently arrested in Maverick County in 1992 for

Conspiracy to Possess Marijuana. [2 R.R.: 11, 12, 30 - 31; 3 R.R.: 18 - 19].       He

was identified in the booking records under both his brother’s name,         “Enrique

Jimenez Mata,” a Mexican national, as well as his own name “Reynaldo Ybarra

Zamora.”      [3 R.R.: 47; SX: 13]. When Appellant was arrested, the authorities

found in the car, 3 false identification documents which belonged to his brother.

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                2
[2 R.R.: 31; 3 R.R.: 24; 3 R.R.: 20, 44 - 45]. He was released from jail because

the authorities suspected him of being his brother, who was an illegal alien.       [2

R.R.: 11, 12, 30 - 31; 3 R.R.: 46]. The sheriff’s department released him to the

border patrol, which drove him to the international bridge and instructed him to

return to Mexico. [2 R.R.: 11; 3 R.R.: 45].

       Appellant was again arrested by the Austin Police Department for Indecent

Exposure in 2001.         [3 R.R.: 33, 51].       Documents submitted by the State, a

police department “Press Release” of the arrest, State’s Exhibit 15, and an APD

offense report, State’s Exhibit 31 - Exhibit F, reflect Appellant was arrested under

the name of “Reynaldo Zamora” with a date of birth of “3/28/1958.” [3 R.R.: SX

15, 31 (Attachment F)]. He was convicted and placed on probation. [8 R.R.: SX

31 (Attachment G)].         This probation was eventually revoked in October 2005

and he was sentenced to 30 days in the county jail. [8 R.R.: SX 31 (Attachment

K)].

       Also in 2001, Appellant was arrested and incarcerated in Franklin County,

Kentucky. [2 R.R.: 13 - 14, 22].          The booking sheet listed among his charges a

fugitive warrant. [2 R.R.: 14; SX 14]. He plead guilty to the local offense served

a 5 ½ month sentence. [2 R.R.: 15]. Despite the out-of-state detainer, the local

authorities released him from custody after Hays County did not seek extradition.

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                3
[2 R.R.: 15; 3 R.R.: 29 - 30, 47 - 48].

       Appellant then returned to Texas from Kentucky.        [3 R.R.: 49]. While

living in Austin, Texas, he checked with the Travis County Sheriff’s Office for

outstanding warrants and learned that there were no warrants from Hays County.

[2 R.R.: 16 - 17; 3 R.R.: 50 - 51].

       In 2002, Appellant was again arrested in Maverick County for the 1992

charge. [2 R.R.: 17 - 18]. He was found guilty after a trial and sentenced to 12

years imprisonment. [2 R.R.: 18 - 19; DX 1 & 2]. He was paroled from prison

in 2005. Prior to his release, the Board of Pardons and Paroles checked for

outstanding detainers and he “came up clean.” [2 R.R.: 20].

       After being released from prison, Appellant renewed his driver’s licence

without incident. He was aware that the Department of Public Safety routinely

ran warrant checks when renewing driver’s licences.       [2 R.R.: 20 - 21; 3 R.R.:

50].

       Appellant was again arrested in Austin in 2007. [3 R.R.: 34].        State’s

Exhibit 28, an Austin Police Department Press Release reflects he was arrested

under the name “Reynaldo Zamora” with a date of birth of “3/28/1954.” [3 R.R.:

32; 8 R.R.: SX 28]. An offense report from the Texas Attorney General’s

Fugitive Apprehension Unit           noted the existence of a 1986 Hays County

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                4
Aggravated Kidnaping case, but misstated that it resulted in a conviction and

sentence. [8 R.R.: 31 (Attachment I)].

       Appellant’s parole on the Maverick County conviction was revoked in 2008

and he was again incarcerated in the state prison system. [3 R.R.: 33]. He was

paroled again in 2010. The Board of Pardons and Paroles again reviewed him for

detainers, found none, and released him. [2 R.R.: 20].

       On September 7, 2013 Appellant was finally arrested by Hays County for

the 1987 charges. He was appointed an attorney on October 23 and the two met in

jail a week later, on October 30, 2013.         He was subsequently returned to TDCJ

for    four months, after which he was again returned to Hays County to face

charges. [2 R.R.: 27].

       The State submitted several documents in order to demonstrate that

Appellant has utilized several aliases and dates of birth over the years.    State’s

Exhibit 1, a 1972 judgment of conviction in Guadalupe County, and State’s

Exhibit 2, a related 10-print card reflect that Appellant’s first name was spelled as

“Ray.” [3 R.R.: 10, 11: 8 R.R.: SX 1 & 2].

       State’s Exhibit 3, a Guadalupe County magistration form, dating to 1978,

and State’s Exhibit 4, a 1978 Guadalupe County judgement of conviction also

listed his name as “Raynaldo Ybarra Zamora.” [8 R.R.: SX 3]. State’s Exhibit

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                5
6, a 10-print card from TDCJ identified him as “Reynaldo Zamora” with an aka

as “Ray” but stated his date of birth as “3-25-54.” [8 R.R.: SX 6].

       State’s Exhibit 9, his Hays County waiver of arraignment in the present

case listed him as “Reynaldo Zamora.” [8 R.R.: SX 9].

       State’s Exhibit 11, photos purportedly of Appellant by the Maverick County

Sheriff’s Department dating to 1992 listed the individual as “Enrique Mata

Jimenez” with a date of birth of “12-21-1958.”                An accompanying indigence

form for the Maverick County case recited Enrique Mata Jimenez as the defendant

and was purportedly signed by Mata.             [8 R.R.: SX 12].        State’s Exhibit 13, a

Maverick County jail print out, listed Enrique Jiminez Mata” as an escapee.

Notably the document also listed the “Reynaldo Ybarra Zamora” as an alias.

       Three identification cards seized by Maverick County during Appellant’s

1992 arrest, a Mexican driver’s licence, a Texas driver’s licence, and a State of

Texas certificate of birth, bearing the name “Reynaldo Ybarra Zamora” with a

date of birth of 3/28/54" were admitted.1 [3 R.R.: 24; 8 R.R.: SX 16].

       State’s Exhibit 14, a “News Release” from Franklin County, Kentucky law

enforcement listed Appellant as “Ray Ybarra Zamora.” It also noted that he was

a “fugitive” for which no bond was authorized. [8 R.R.: SX 14].

       1
           The Mexican ID spells Appellant’s middle name as “Ibarra” but is otherwise consistent
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                6
       State’s Exhibit 18, booking photos from Appellant’s re-arrest in Maverick

County identified him as “Reynaldo Ybarra Zamora” with a date of birth of

“3/28/1954.” [3 R.R.: 26; 8 R.R.: SX 18]. The judgment of conviction for his

trial identified him under the name of “Reynaldo Ybarra Zamora” with an aka as

“Enrique Jimenez Mata.”           [3 R.R. 27; 8 R.R.: SX 19].   The accompanying

Maverick County 10-print card related to the judgment, however, spelled his name

as “Raymundo Ybarra Zamora” with a date of birth of “3/28/1954.”      [3 R.R. 27;

8 R.R.: SX 20].       A Franklin County law enforcement “News Release” dating to

a June 2003 arrest, State’s Exhibit 23, identified Appellant as “Ray Ybarra

Zamora.” [3 R.R.: 28 - 29; 8 R.R.: 23].

       State’s Exhibit 25, a State of Texas Pardons and Parole notice of offender

release, dated October 5, 2005 identified Appellant, “Reynaldo Ybarra Zamora”

with a date of birth of “3/28/54" as an impending parolee. [3 R.R.: 31; 8 R.R.:

SX 25].

       State’s Exhibit 30, a second State of Texas Pardons and Parole notice of

offender release, dated May 25, 2005 again identified Appellant as “Reynaldo

Ybarra Zamora” with a date of birth of “3/28/54."

       State’s Exhibit 31, a written response with documentary attachments, to

with the Texas documents.
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                7
Appellant’s Speedy Trial motion, was also admitted. [3 R.R.: 8 - 9; 8 R.R.: 31].

       Appellant contended that his defense was premised upon an alternative

suspect to the kidnaping – his brother – supported by witnesses who could have

provided alibis of his whereabouts in the time period that the offense had

occurred. He had a younger half-brother, “Enrique Mata Jiminez” – they shared

the same father, but different mothers – who lived in the Piedras Negras, Mexico.

[2 R.R.: 12 - 13; 2 R.R.: 28 - 29]. The brothers resembled one another. [2 R.R.:

25]. Jiminez, a Mexican national, and would use Appellant’s ID while in the

United States. [2 R.R.: 28 - 29].         Jiminez operated Appellant’s septic business

when Appellant worked out-of-state and used his driver’s licence to drive the

dump truck which used in the business. [2 R.R.: 25 - 26].           Appellant believed

that his brother had committed the offenses using Appellant’s identity while

Appellant was working out-of-state.          [2 R.R.: 26].   Appellant denied owning a

white Corvette, the suspect vehicle in the case, but his brother had owned such a

vehicle. [3 R.R.: 40 - 41]. Appellant had lost contact with his brother over the

years; he not been able to locate him for some period of time. [2 R.R.: 12 - 13].

His inquiries had proven fruitless because no one in the family knew of his

brother’s whereabouts. [2 R.R.: 13].

       There were several other witnesses with whom he had worked who could

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                8
have testified to his being out-of-state during the relevant time period but who

were no longer available as witnesses.            In 1986 - 1987, Appellant had been

working for a long time employer, Dr. Darryl Havert, through whom he met

another individual, Colonel Sanders.           [2 R.R.: 21, 23; 3 R.R.: 37, 40].     He

believed that he had been working for Sanders out-of-state at the time of the

offense in late 1986. [2 R.R.: 22]. Appellant learned that Sanders had died in

2007. [2 R.R.: 21 - 22; 3 R.R.: 35 - 36].          Another witness, Dr. Havert, had

died from a stroke in 2007. [2 R.R.: 23 - 24; 3 R.R.: 36]. Havert would have

been able to testify about Appellant’s whereabouts during the period which the

charges arose.       Havert owned two small airplanes and provided transport for

Appellant to and from Colorado as well as Kentucky, where Havert owned a ranch

on which Appellant worked. [2 R.R.: 23].            There had also been a private pilot,

employed by Havert to fly the planes between San Antonio and Kentucky, who

could have testified on Appellant’s behalf, but whose name Appellant had

forgotten over time. [2 R.R.: 24 - 25].

       The trial court took the matter under advisement, and ultimately denied the

motion, noting on the docket sheet that the delay was “attributable to Δ’s own

actions, lack of previous request for Speedy Trial; lack of prejudice to Δ under all

attendant circumstances.” [C.R.: 155].

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                9
       On the morning of trial, just before voir dire, the State advised the trial

court of additional evidence not disclosed during the pre-trial Speedy Trial

hearing.     The prosecutor made a proffer that he had learned from the district

attorney’s office officer manager that she had received a fax from the parole

department in 2010, inquiring into the status of the pending case.   [4 R.R.: 17 -

18].    The office manager reported the fax to the chief of the family justice

division – not the same prosecutor as the one making the proffer.       The DA’s

Office, which was attempting to locate and re-create a case file, did not respond

to TDCJ and Appellant was released from prison. The DA’s Office did not re-

create a file until Appellant was arrested in 2013 on an “active warrant.” [4 R.R.:

18 - 19].

        Appellant re-urged the motion to dismiss, which the trial court denied. [4

R.R.: 22 - 25].

       B.     Trial on the Merits

       The evidence at trial showed nine-year-old G.G. and her friend, D.S. were

abducted on December 20, 1986 in Buda, Hays County, Texas. While walking to

a neighborhood friend’s home, the suspect drove up in a white Corvette, identified

himself as the friend’s uncle, and asked where she lived. [5 R.R.: 108 - 109; 6

R.R.: 22 - 23, 28].        He asked for help locating the house and when the girls

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                10
expressed hesitancy in getting into his car, he identified himself as “Reynaldo

Zamora.” [6 R.R.: 28 - 31, 74, 76 - 77, 80 - 81]. The girls got into the car and

tried to find the house. [6 R.R.: 32]. While driving through the neighborhood, the

suspect announced he needed gas and drove the girls to a gas station along the

highway, where he bought D.S. a hamburger. [5 R.R.: 109, 111; 6 R.R.: 34 - 37,

38]. He drove them back to their neighborhood. D.S. exited the car, but as G.G.

started to exit, the suspect pulled her back in and drove off. [5 R.R.: 109; 6 R.R.:

44 - 45].     He ultimately drove G.G. to a spot along the side of the highway,

parked and fondled her breast and crotch, then drove her back. [6 R.R.: 49 - 51].

He dropped G.G. off at the school bus stop and she ran home and related the

incident. [6 R.R.: 52 - 57].

       Appellant was identified as a suspect during the investigation. Members of

the Hays County Sheriff’s Office went to Appellant’s house with an old

unexecuted warrant, and while searching the home found Appellant hiding in the

shower. [5 R.R.: 170 - 174; 186; 8 R.R.: SX 12 (Michael Dees Deposition)].

       The officers assigned to the investigation took D.S. and G.G. on a drive by

of Appellant’s house following Appellant’s arrest, at which time both girls

identified the white Corvette parked in the drive way as the suspect’s vehicle. [5

R.R.: 177 - 179; 6 R.R.: 58].

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                11
        The girls could not initially identify a suspect.        [5 R.R.: 190].    After

Appellant’s arrest, they were again shown a lineup and each selected his

photograph. [5 R.R.: 143, 182 - 183, 193; 6 R.R.:             59 - 60; SX 12 (Michael

Dees Deposition)].

        Records of Appellant’s credit card matched records of a purchase made at

the gas station convenience store where the suspect allegedly made a purchase.

[5 R.R.: 77 - 81, 194 - 196; SX 9].

        After Appellant was arrested, he posted bond and was released from jail. [5

R.R.: 66 - 67; 6 R.R.: 95 - 97]. He did not appear for the August 1987 trial date.

[5 R.R.: 71 - 72, 74].

        The parties stipulated that over passage of time, the State had lost numerous

items of evidence, including: photographs, hair and fingerprint samples, photos of

the vehicle as well as the vehicle itself, recorded witness statements, the gas ticket

and photos of Appellant.        [5 R.R.: 149 - 150; SX 13]. They also stipulated that

hair samples taken from the girls and subjected to microscopic analysis of hair

samples taken from the corvette did not have matching characteristics. [5 R.R.:

151].

        The jury convicted Appellant of Aggravated Kidnaping. [7 R.R.: 56]. The

punishment phase was held to the trial court.             The court rejected Appellant’s
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                12
request for a affirmative finding on the issue of “safe release” and assessed a

sentence of 60 years imprisonment. [7 R.R.: 93 - 95].

                         SUMMARY OF THE ARGUMENT

       1.     The trial court erred in denying Appellant’s motion to dismiss the

case due to the violation of his right to Speedy Trial by incorrectly weighing the

relevant factors under Barker v. Wingo, 407 U.S. 514 (1972). The testimony and

documentary evidence developed in the Speedy Trial hearing reflected that while

Appellant had not appeared for the 1987 trial date, and not clearly asserted his

right to a Speedy Trial at that time, in the intervening years, he was frequently

incarcerated in Texas, either in TDCJ, or in county jails under his own name and

date or birth, or was held out-of-state under a Texas detainer, but not extradited by

the State. Further, evidence was presented which demonstrated the prosecution

ignored a direct inquiry by parole officials regarding Appellant’s fugitive status.

The State’s lack of efforts to locate and bring Appellant to trial, given the passage

of years, significantly outweighs Appellant’s lack of assertion of his right.

Additionally, the trial court failed to presume prejudice given the number of years

in which the State did not seek to apprehend Appellant. In the alterative, the trial

court erroneously concluded Appellant had not shown prejudice despite testimony

of missing and unavailable witnesses. The State’s lack of diligence, coupled with
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                13
the demonstrated prejudice outweigh the sole Barker factor in favor of the State.

                               GROUND FOR REVIEW

Ground for Review Number One

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
       SPEEDY TRIAL IN LIGHT OF THE EXTRAORDINARY PASSAGE OF
       TIME AND STATE’S LACK OF DILIGENCE IN LOCATING APPELLANT
       DESPITE HIS FREQUENT INCARCERATION.

       The Sixth Amendment and Fourteenth Amendments to the United States

Constitution and Article I, § 10 of the Texas Constitution, guarantee an accused

the right to a speedy trial.    Barker v. Wingo, 407 U.S. 514, 515 (1972); Klopfer

v. North Carolina, 386 U.S. 213 (1967); Cantu v. State, 253 S.W.3d 273, 280 &

n.16 (Tex. Cr. App. 2008); and, McGregor v. State, 394 S.W.3d 90 (Tex.App. -

Hous. [1st Dist.] 2012). A court analyzes speedy trial claims on an ad hoc basis

by weighing and then balancing four factors: (1) length of the delay, (2) reason for

the delay, (3) assertion of the right, and (4) prejudice to the accused. Barker, 407

U.S. at 530.     The inquiry is triggered when the delay between arrest or formal

accusation and trial is unreasonable enough to be "presumptively prejudicial."

Cantu, 253 S.W.3d at 281. The burdens with regard to the factors differ between

the parties.    While the State bears the burden of justifying the length of delay,

the defendant bears the burden of proof that he asserted the right to a Speedy

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                14
Trial, and an initial burden of making a prima facie showing of potential

prejudice.    Cantu, 253 S.W.3d at 280;           McGregor, 394 S.W.3d at 112; and,

Rivera v. State, 990 S.W.2d 882, 892 (Tex.App. - Austin 1999).         While no one

particular factor is talismanic, Barker, 407 U.S. at 533, the Court of Criminal

Appeals has held that the defendant's burden "'varies inversely' with the State's

degree of culpability for the delay"; thus, "the greater the State's bad faith or

official negligence and the longer its actions delay a trial, the less a defendant

must show actual prejudice or prove diligence in asserting his right to a speedy

trial." Cantu, 253 S.W.3d at 280 - 281; and, McGregor, 394 S.W.3d at 112 (citing

Cantu).

       A.     Length of Delay

       There is no set time period to trigger a Speedy Trial analysis, but Texas

courts have applied as a rule of thumb that an eight-month delay is generally

sufficient to trigger the inquiry.      Zamorano v. State, 84 S.W.3d 643, 649 n.26

(Tex.Cr.App. 2002); and, Ervin v. State, 125 S.W.3d 542, 546 (Tex.App. - Hous.

[1st Dist.] 2002) (citing Harris v. State, 827 S.W.2d 949, 956 (Tex.Cr.App.

1992)).      Compare, Doggett v. United States, 505 U.S. 647, 652 n. 1(1992)

(observing that majority of courts hold delay of one year is sufficient to trigger

inquiry). There was evidence that Appellant had absconded from Hays County in
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                15
late 1987, subsequently arrested in Maverick County, Texas in 1992, and then

either released from custody or escaped. It may be debatable whether this time

should count toward the length of the delay, but in essence this period of time is

largely irrelevant to the determination of whether the length of the delay was

presumptively unreasonable.

        What is indisputable is that as of 2002, Appellant was in the custody of the

State of Texas, incarcerated in Maverick County, Texas, tried and sentenced to 12

years incarceration in the Texas Department of Criminal Justice.2 [8 R.R.: SX 18,

19, 20]. He was sentenced under his own name, the same one as he was charged

under in Hays County – Reynaldo Ybarra Zamora – and date of birth – 3/28/1954.

[8 R.R.: 19, 20]. The evidence was undisputed that Hays County did not seek to

arrest him until September 2013 - 11 years later. [2 R.R.: 27]. This delay, dating

from 2002 is presumptively unreasonable and sufficient to initiate a Speedy Trial

inquiry.

        B.      Reason for Delay

        Because the State is obligated to expeditiously seek to try a defendant, it

        2
            The record established that Appellant was in the constructive custody of the Texas two years
earlier than this, when he was incarcerated in Franklin County, Kentucky. The State submitted
documentary evidence from the Franklin County, Kentucky Sheriff’ that Appellant was in the custody of
the Franklin County as of May 11, 2000 for charges, including a fugitive warrant for which no bond was
authorized. [8 R.R.: SX 14]. Appellant testified he was ultimately released from custody when the
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                16
bears the burden of justifying a presumptively unreasonable delay.             Ervin, 125

S.W.3d at 546 (citing Phillips v. State, 650 S.W.2d 396, 400 (Tex.Cr.App. 1983).

The Court assesses the reason for the delay against the State depending upon the

degree of culpability in failing to provide a Speedy Trial.           For neutral reasons,

such as a missing State witnesses, the delay is not counted against the State.

Barker, 407 U.S. at 531. In contrast, a deliberate prolongation weighs heavily

against the State, while negligence is also counted against the State, albeit not as

heavily as deliberate misconduct.                Barker, 407 U.S. at 531; and, Ervin, 125

S.W.3d at 546.

        The prosecution as much as conceded negligence on the issue with the trial

court. [6 R.R.:19 - 20]. Independent of this, the undisputed facts demonstrated the

State, at a minimum, failed to exercise diligence in seeking to prosecute Appellant

until 2013.         Even conceding the time period in which Appellant was

unapprehended by the authorities, it is nonetheless clear that from 2001, he was

under the direct or constructive custody of the State.            In early 2001, he was in

Kentucky custody, but held on an out-of-state detainer; the prosecution offered no

explanation for its failure to seek extradition. From 2002 onward, Appellant was

consistently in and out of TDCJ, under his own name, and correct date of birth.

State of Texas
REYNALDO       declined
           ZAMORA       to seek his extradition. [2 R.R.: 15].
                    V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                17
And he was repeatedly paroled under this name and date of birth.          Again, the

State offered no explanation for its failure to obtain his presence for trial.    In

2007, he was arrested in Austin under his own name and date of birth.         Again,

the State offered no explanation for its failure to obtain his presence for trial in

Hays County. While contending Appellant was using an alias for this time period,

the State’s own evidence – documents generated by law enforcement – reflects

that that law enforcement was aware of variations in Appellant’s name, as well as

the possible use of aliases.       Yet again, the State offered no explanation of the

warrants for Appellant’s arrest and whether – or why – they did not include

known aliases and spelling variations of his name.

       These instances of         prosecutorial negligence weigh against the State

because the State has the affirmative obligation to make reasonable efforts to

bring a defendant to trial, even if he is a fugitive. Compare, Deluna v. State, 05-

10-01339-CR (Tex.App. - Dallas 2012) (unpublished) (noting that during time

period defendant was unapprehended, he had been incarcerated in jail and subject

to being located through reasonable diligence).

        Also significant, the prosecutor’s proffer made on the morning of trial

reflected at least one occasion in which the State simply disregarded the

opportunity to secure Appellant’s presence for trial. Parole officials contacted the
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                18
Hays County District Attorney’s Office in 2010 inquiring on a detainer, but the

office did not respond, resulting in Appellant’s release.          The context of the

revelation – a proffer        from information conveyed by another employee –

precluded further inquiry into this, but supports an inference that the Parole

Department might have contacted the office on earlier occasions prior to

Appellant’s release from prison. The State’s inaction in light of the contact by the

Parole Department is not mere negligence - it strides into deliberate misconduct,

and should be treated more heavily in the weighing process than the States’ lack

of diligence.

       C.       Assertion of the Right to Speedy Trial

       There is no evidence in the reconstructed court file that Appellant filed a

request for a Speedy Trial in 1987.         He filed his request to dismiss for lack of a

Speedy Trial on August 4, 2014. [C.R.: 19 - 25]. The lack of an initial demand for a

Speedy Trial is a factor which counts against a defendant. Barker, 407 U.S. at 531;

and, Gonzales v. State, 435 S.W.3d 801, 810 - 811 (Tex.Cr.App. 2014).            It is not

determinative, however, as the Supreme Court has noted that the State bears the

ultimate burden of ensuring that the right to due process has been accorded.          Id.,

407 U.S. at 527.       Accordingly,      “[a] defendant has no duty to bring himself to

trial.” Ibid. See also, State v. Smith, 76 S.W.3d 541, 549 (Tex.App.- Hous. [14th
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                19
Dist.] 2002) (“A defendant has no duty to bring himself to trial, and the primary

burden rests upon the courts and the prosecution to insure that cases are brought to

trial.”).   While the absence of proof in the reconstructed file weighs against

Appellant,    it must be measured in light of both the State’s lack of any efforts to

secure Appellant’s presence during the years he was incarcerated in TDCJ, coupled

with the State’s failure to seek Appellant’s extradition from Kentucky, as well as

the significant delay from the period where it is indisputable that Appellant was in

State custody and subject to being brought to trial in Hays County.

       D.     Prejudice.

       As a general matter, the defendant has the burden of making a prima facie

showing of prejudice.        Barker, supra. Under circumstances, where the delay is

long enough and attributable to the State, it is appropriate to presume prejudice

without any specific prima facie showing by the defendant. Doggett, 505 U.S. at

657; and, Gonzales, 435 S.W.3d at 812 (“In certain instances, the length of delay

may be so excessive that it presumptively compromises the reliability of a trial in

ways that neither party can prove or identify. . . . In such instances, the defendant is

absolved from the requirement to demonstrate prejudice.”) (internal quotations

omitted). See also, Moore v. Arizona, 414 U.S. 25, 26 (1973) (“Barker v. Wingo

expressly rejected the notion that an affirmative demonstration of prejudice was
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                20
necessary to prove a denial of the constitutional right to a speedy trial.”).

Presumptive prejudice occurs in the context of the length of the delay coupled with

the State’s negligence. In Doggett, the Court applied a presumption of prejudice

where the between indictment and apprehension lasted 8 ½ years, “ six times as

long as that generally sufficient to trigger judicial review . . .”   Id., 5905 U.S. at

658.

         In Appellant’s case, he was in constructive custody in Kentucky as of 2001,

but the State did not seek his extradition at that time. He was in the custody of the

State of Texas as of 2002, but the prosecution did not seek a bench warrant at that

time, or for any of the periods in which he was in a Texas prison. In fact, as

divulged by the prosecutor on the morning of trial, the Texas Board of Pardons and

Paroles actually contacted the office in 2010 to ascertain the Appellant’s status in

Hays County, but the District Attorney’s Office failed to take any action.      He was

not arrested on a warrant from Hays County until 2013. This is well beyond the

time that the Supreme Court found sufficient to presume prejudice in Doggett,

supra.

         In the alternative, even if the presumption of prejudice does not apply in this

particular case, Appellant established a sufficient prima facie showing of prejudice

to which the State failed to rebut.        A defendant need not show actual prejudice,
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                21
however. Phillips, 650 S.W.2d at 401;              Puckett v. State, 279 S.W.3d 434, 437

(Tex.App. - Texarkana 2009);          Rivera, 990 S.W.2d at 892; Harris v. State, 986

S.W.2d 619, 625 (Tex.App. - Tyler 1997); and, State v. Kuri, 846 S.W.2d 459, 467

(Tex.App. - Hous. [14th Dist.] 1993). This follows from the difficulty, as a result of

excessive delay, for either party to prove or identify the way in which the reliability

of trial has been compromised by the passage of time.           See Doggett, 505 U.S. at

655; and, Gonzales, 435 S.W.3d at 812.                Where a witness dies or disappears

during a delay, the prejudice is obvious. Barker, 407 U.S. at 532. This Court has

explained that in the case of a missing witness, “[t]o show prejudice, a defendant

need only show that the prospective witness was material to the case, not that the

witness would have testified favorably to the defense.” Maddux v. State, 825

S.W.2d 511, 517 (Tex.App.-Hous. [1st Dist.] 1992, rev’d on other grounds, 862

S.W.2d 590 (Tex.Cr.App. 1993)) (citing Phillips, 650 S.W.2d at 402; and, State v.

Owens, 778 S.W.2d 135, 138 (Tex.App. — Hous. [1st Dist.] 1989)).

       In the present case, Appellant made a prima facia showing of prejudice. He

testified about a plausible alternative suspect whose whereabouts were unknown by

the time of trial. He also advised of three potential material witnesses who could

possibly have provided alibis for the time period in question. Two were dead, and

one, the pilot employed by Havert, was unknown and plainly unlocatable due to the
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                22
passage of time. The State addressed none of this evidence at the hearing.

       E.     The balance of the Speedy Trial Factors weighs in favor of reversing
              the trial court’s order denying the motion to dismiss.

       This court balances the relevant factors of a Speedy Trial claim on a de novo

basis. Gonzales, 435 S.W.3d at 809; and, McGregor, 394 S.W.3d at 112. The

trial court made not specific fact-findings, but concluded Appellant had failed to

make a showing on three Barker factors – invocation of the right, the reason for the

delay, and prejudice. The court erred on two of these factors – the reason for the

delay and prejudice – and so it necessarily applied the Barker test incorrectly.

While there is no evidence Appellant timely demanded a Speedy Trial, a factor

which weighs against Appellant, the State made no efforts to apprehend him in the

years following his bond forfeiture, even though he was incarcerated under his own

name and date of birth, or under known aliases, since 2001.             Indeed, the

unrebutted evidence establishes that the State failed to seek his extradition from

Kentucky in 2001 despite the out-of-state detainer, and ignored the Parole Board’s

inquires in 2010. This prolonged negligence coupled with affirmative misfeasance,

should weigh heavily when measured against Appellant’s own failure to assert his

right to a Speedy Trial.

       In its cursory conclusion that Appellant had proven no prejudice, the Court

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                23
failed to address Doggett’s injunction that a sufficiently prolonged and unjustified

delay obviates the need to demonstrate prejudice. In Appellant’s case, assuming a

date of 2001, the State’s unjustifiable delay in seeking prosecution was 12 years.

This was more than sufficient to justify presumptive prejudice under Doggett.

       Alternatively, the trial court erred in concluding Appellant had not proven

prejudice.      Appellant presented sufficient and unrebutted prima facie proof of

prejudice through missing and deceased witnesses. The witnesses – his brother,

Havert, Sanders, and the pilot were material insofar as they related to an alternative

suspect coupled with Appellant’s absence from the state, and were unavailable due

to the passage of time.       Even in the absence of presumed prejudice, Appellant

made a sufficient showing of prejudice to weigh the balance of the Barker factors in

favor of Appellant.

       This Court should conclude the trial court erred in its denial of Appellant’s

motion to dismiss for violation of his Speedy Trial right.

                                  Conclusion and Prayer

       WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

this Honorable Court reverse Appellant’s conviction, remand the case to the trial

court with instructions to dismiss the case for violation of the right to a Speedy

Trial, any other such relief to which Appellant may be entitled.
REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                                24
Respectfully submitted,

Law Office of Alexander L. Calhoun
4301 W. William Cannon Dr., B-150, # 260
Austin, TX 78749
Tele: 512/ 420- 8850
Fax: 512/ 233-5946
Cell: 512/731-3159
Email: alcalhoun@earthlink.net

BY:__/s/ Alexander L. Calhoun ____
   Alexander L. Calhoun
   State Bar No.: 00787187

    Attorney for Appellant, Reynaldo Zamora

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-
CR
                             CERTIFICATE OF SERVICE

       I hereby certify that on December 8, 2015, a copy of the above and

foregoing Appellant’s Brief has been served upon the Hays County District

Attorney's Office by United States Mail at the following address:

Hays County District Attorney
Hays County Government Center
712 South Stagecoach Trail, Ste. 2507
San Marcos, TX 78666.

                                                  /s/ Alexander L. Calhoun
                                                Alexander L. Calhoun

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                             26
                         CERTIFICATE OF COMPLIANCE

       Pursuant to Tex.R.App.Pro. Rule 9.4, I hereby certify that the foregoing

appellate brief has been prepared in Times New Roman typeface in 14 point type

and consists of 6036 words.

                                       /s/ Alexander L. Calhoun
                                    Alexander L. Calhoun

REYNALDO ZAMORA V. STATE OF TEXAS: NO. 01- 15 -00367-CR
                                                                            27