Donald F. Huff v. State

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-13-00891-CR
Donald F. HUFF,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR2990
Honorable Sid L. Harle, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: April 8, 2015
REVERSED AND REMANDED
A jury convicted appellant Donald F. Huff of felony murder — the underlying offense was
driving while intoxicated, third offense, and the trial court sentenced Huff to forty-five years’
confinement. On appeal, Huff raises four issues, contending: (1) the evidence is insufficient to
support his conviction; (2) the trial court erred in denying his request for a dismissal based on a
violation of the Interstate Agreement on Detainers Act (“IADA”); (3) the trial court erred in
denying him the right to a speedy trial; and (4) the trial court erred in denying his motion to
suppress. We reverse and remand for a new trial.
04-13-00891-CR
BACKGROUND
The record shows that on August 6, 2009, EMTs were dispatched to a motorcycle accident
in Bexar County, Texas. EMT Kevin Norman described the accident as “severe” and “bad.” When
he arrived, he saw a woman on the ground; she was lying near some kind of bent road sign. He
noted that a man was “trying to drag the female individual and put her back on — back on the
motorcycle again.” Norman identified the man as Huff. The woman was ultimately identified as
Arlene Harding-Watts. EMT Norman told Huff they would take over. Huff seemed uninjured, so
the EMTs turned their attention to Harding-Watts. They determined her condition was serious
enough to warrant Airlife, and she was airlifted to the hospital. Harding-Watts ultimately died
from her injuries. A doctor from the Bexar County Medical Examiner’s Office testified she died
from “multiple blunt force injuries,” including an injury to the spinal cord and liver.
EMT Norman testified that although he could not say with certainty, he believed Huff told
him at the accident scene that he was driving the motorcycle at the time of the accident. Norman’s
belief was based on the notes he made for his report, which were made “some time between when
we started treating Mr. Huff to the time we got to the hospital.” He explained that once he is at
the hospital, he normally has twenty to thirty minutes to finish his report. He wrote in his notes
that Huff was driving approximately thirty miles per hour and lost control of the motorcycle.
Norman stated he would not have written in his report that Huff was the driver unless Huff gave
him that information. Norman also wrote in his report that Huff denied using drugs or alcohol
before the accident.
After the testimony from the EMT, the State called San Antonio Police Officer Alfonso
Peeler to the stand. Officer Peeler testified he was dispatched to the motorcycle accident involving
Huff and Harding-Watts. After blocking off the intersection where the accident occurred, Officer
Peeler was instructed by his sergeant to “to do the HGN and handle the DWI portion of the
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accident.” When he walked toward the actual accident site, he saw Harding-Watts lying on the
ground. He described her condition as “horrific,” stating “her foot was almost amputated . . . bone
was sticking out through the leg.” The officer stated EMTs were attending to Harding-Watts; his
primary focus was Huff. At this point in his testimony, Officer Peeler identified Huff in the
courtroom.
Officer Peeler testified that when he approached Huff at the scene, he was “shuffling
around next to the curb.” According to the officer, Huff was hesitant, slow, and appeared
“impaired.” The officer smelled a “faint odor of intoxicants” on Huff’s breath and person. Officer
Peeler specifically testified Huff told him he lost control of the motorcycle while driving himself
and Harding-Watts home from a hair salon. Huff stated several times that he was the driver and
lost control of the motorcycle; he was repeating himself. The officer included in his report Huff’s
admission that he was the driver.
The officer performed the HGN (horizontal gaze nystagmus) test on Huff. According to
the officer, Huff showed six clues, indicating he was impaired. Huff declined to take any other
portion of the field sobriety test, asserting his back was hurting. Officer Peeler opined that Huff
was “impaired,” i.e., “intoxicated.” The officer testified that based on his observations at the
accident scene, the accident occurred, in part, because Huff was intoxicated.
The EMTs inserted an IV line and took Huff to the hospital by ambulance as a precaution.
At the hospital, Officer Peeler asked Huff if he would voluntarily provide a blood sample. When
Huff declined, the officer advised Huff that he was going to take a blood sample. At the officer’s
direction — without consent or a warrant — a nurse took a blood sample from Huff. The blood
sample was tested by the toxicology laboratory of the Bexar Medical Examiner’s Office. At trial,
the chief toxicologist, Veronica Hargrove testified, over objection, that Huff’s blood sample had a
blood alcohol concentration of 0.17 grams per deciliter, more than twice the legal limit of 0.08.
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She also testified that a subject will show signs of impairment from alcohol consumption at 0.05
grams per deciliter. The toxicology report showing Huff’s blood alcohol level was admitted into
evidence over objection. On cross-examination, Chief Hargrove admitted Huff’s blood alcohol
level could have been higher or lower at the time of the accident, which occurred more than three
hours before the blood draw. However, on redirect, she stated that given the elimination rate of
alcohol from the body, it was unlikely Huff’s blood alcohol content was less than 0.08 at the time
of the accident.
Detective Carlos Reyes, a member of the traffic investigation unit at the time of the
accident, testified that as an accident investigator he is called upon to determine how an accident
occurred, whether it could have been avoided, and who bore responsibility for the accident, if there
was fault. Detective Reyes testified he reviewed all of the reports prepared by the EMTs and the
officers at the scene. He stated, based upon his review, he found no reason to believe Huff was
not the driver of the motorcycle at the time of the accident. The detective opined that based on his
investigation, he believed Huff was driving at the time of the accident, the motorcycle was
traveling approximately thirty or forty miles per hour, and because of intoxication, “[Huff] failed
to make the turn and he dropped the bike.” Detective Reyes acknowledged on cross examination,
however, that his opinion that Huff was the driver was based upon what other officers told him
and their reports. He admitted he could not say who was driving at the time of the accident based
on personal knowledge.
The State next presented testimony from Sergeant Scott Foulke, who is assigned to the
traffic investigation division. He testified he spent two years as a motorcycle officer before he was
promoted to sergeant. In order to become a motorcycle officer, he had to attend basic and advanced
schools. Moreover, Sergeant Foulke testified that in his personal life, he had been legally riding
motorcycles since the age of fourteen.
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Although Sergeant Foulke admitted he knew a “little bit . . . but not a lot” about Harley
Davidson motorcycles, which was the type of motorcycle at issue, as a motorcycle officer, he drove
a “big road bike,” a Honda Goldwing. He testified he was familiar with Harley Davidson “basic
models, horsepower, weights and things of that nature.” Looking at a picture of the motorcycle
involved in the accident, Sergeant Foulke stated it would be a “little more difficult for the
passenger” to get off of the motorcycle while it was in motion because of the back rest. The
passenger would have to “clear” the back rest and the driver to dismount. He also testified that
when you learn to ride a motorcycle, you are taught that when a motorcycle is “going down,” you
should “push yourself away from the bike, get away from the bike, curl up into a ball and roll to
reduce the injuries and the road rash and things of that nature.” Sergeant Foulke testified that an
experienced driver could escape essentially unharmed from a motorcycle crash. He stated he had
crashed, even flipped a motorcycle over, without suffering an injury.
An investigator with the Bexar County District Attorney’s Office, Albert Lary, testified
that at the prosecutor’s request, he pulled records from the Department of Motor Vehicles, part of
the Texas Department of Transportation, regarding ownership of the motorcycle involved in the
accident. The records, which were admitted into evidence, established Huff was the registered
owner of the motorcycle. Investigator Lary also testified Huff had a standard driver’s license with
a motorcycle endorsement. Harding-Watts had a standard driver’s license as well, but she did not
have a motorcycle endorsement.
The defense called three witnesses to testify. The first was a private investigator, James
McKay, who was hired by the defense to take photographs and distance measurements at the
accident scene. Mr. McKay authenticated several photographs and testified regarding certain
distances along the road where the accident occurred.
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The defense then called John Monaco to testify. Mr. Monaco testified he worked at a gas
station/convenience store in 2009 — the year of the accident. While working at the convenience
store, he met Huff. Mr. Monaco described Huff as a regular customer who came in “every day.”
He saw Huff driving a motorcycle and sometimes saw a woman with him. Mr. Monaco said he
met the woman, but could not recall her name. Mr. Monaco testified he remembered “many, many
times that the woman was driving the motorcycle and Mr. Huff was just on the back smiling.” He
said that generally when the couple came to the store together, the woman was driving the
motorcycle. He identified the woman he saw driving the motorcycle as Harding-Watts.
The defense also called a friend of Huff’s, Joseph J. Schubach Jr., who testified that in
August 2009, around 7:00 p.m., he was entering Nacogdoches Road — the road where the accident
occurred — and saw Huff with a woman who resembled a woman Huff had previously introduced
to him. He said the couple was riding a motorcycle — the woman was driving and Huff was riding
on the back. Schubach testified he noticed because he thought it was “weird” that a woman was
driving and Huff was on the back. That same night, he saw a news report about an accident, but
admitted he “really didn’t pay much attention to it.” Then, four or five days later, Huff came to
his house and told him there was a motorcycle accident and Huff’s “lady friend” had been killed.
Schubach admitted he could not remember the date he saw Huff and the woman on the motorcycle.
After hearing arguments and receiving the court’s jury charge, the jury retired to deliberate.
Ultimately, the jury found Huff guilty of murder. The murder conviction was based on the
commission of a felony — third offense DWI — resulting in the death of Harding-Watts. The trial
court sentenced Huff to forty-five years’ confinement. Huff perfected this appeal.
ANALYSIS
As noted above, Huff raises four issues on appeal. He contends: (1) there is insufficient
evidence to support his murder conviction; (2) the trial court should have granted his request for a
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dismissal under the IADA; (3) he was denied his right to a speedy trial; and (4) the trial court
should have granted his motion to suppress.
Sufficiency of the Evidence
Huff argues the evidence is insufficient to support his murder conviction because there is
no evidence he was the one operating the motorcycle at the time of the accident that resulted in the
death of Harding-Watts. More specifically, Huff argues the corpus delicti rule prohibits his
conviction because the statements he allegedly made — that he was operating the motorcycle at
the time of the accident — were uncorroborated and there is no other evidence to support the
State’s assertion that he was operating the motorcycle.
Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction, we must view
all of the evidence in the light most favorable to the jury’s verdict, keeping in mind that it is the
province of the jury “to resolve all contested issues of fact and credibility.” Delay v. State, 443
S.W.3d 909, 912 (Tex. Crim. App. 2014). We must determine whether any rational trier of fact
could have found the defendant guilty of the essential elements of the offense beyond a reasonable
doubt. Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). In circumstances where the record supports conflicting inferences, we
must presume the factfinder resolved any conflicts in favor of the verdict and defer to that
determination. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); see Jackson, 443 U.S.
at 318. This presumption includes conflicting inferences from circumstantial evidence. Mayberry
v. State, 351 S.W.3d 507, 509 (Tex. App.—San Antonio 2011, pet. ref’d) (citing Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Moreover, we may not substitute our judgment
for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
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Application
A person commits the offense of felony murder by committing a felony — other than
manslaughter — and in furtherance of the commission of the offense, he commits an act clearly
dangerous to human life that causes the death of another. TEX. PENAL CODE ANN. § 19.02(b)(3)
(West 2011). The Court of Criminal Appeals has held that felony DWI can be the underlying
felony in a felony murder prosecution under section 19.02(b)(3). Lomax v. State, 233 S.W.3d 302,
303 (Tex. Crim. App. 2007); Sandoval v. State, 310 S.W.3d 73, 75 (Tex. App.—El Paso 2010, pet.
ref’d). A person commits felony DWI by operating a motor vehicle in a public place while
intoxicated after having been previously convicted twice for the same offense. TEX. PENAL CODE
ANN. §§ 49.04(a), 49.09(b)(2).
In this case, Huff does not dispute that he was intoxicated, that he was twice previously
convicted of DWI, or that the accident resulted in the death of Harding-Watts. Rather, he only
challenges the evidence relating to the State’s assertion that he was the person operating the
motorcycle at the time of the incident. It is clear that Huff is suggesting that but for his statements
to first responders, the evidence supports the conclusion that it is just as likely Harding-Watts was
operating the motorcycle at the time of the accident. After all, he presented evidence from two
witnesses that she often drove the motorcycle when they were riding together, and one witness
suggested he might have seen her operating the motorcycle just before the accident.
Huff relies upon the corpus delecti rule. The rule, which dates back to at least the 17th
century, is a common law, judicially-created doctrine. Carrizales v. State, 414 S.W.3d 737, 740
(Tex. Crim. App. 2013). The rule’s original purpose was to make certain a defendant was not
convicted based solely on his own false confession, thereby countering the belief in some quarters
that a defendant would not confess unless he was guilty. Id. at 741. The rule has survived under
Texas law, and in Texas, a defendant’s extrajudicial confession does not constitute legally
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sufficient evidence unless there is independent evidence he committed the offense. Id. at 743.
However, the rule is satisfied “if some evidence exists outside of the extra-judicial confession
which, considered alone or in connection with the confession, shows the crime actually occurred.”
Salazar v. State, 86 S.W.3d 640, 645 (Tex. Crim. App. 2002).
We disagree with Huff’s assertion that the corpus delecti rule prohibits his conviction, i.e.,
the evidence is legally insufficient to establish he was operating the motorcycle. In addition to
Huff’s admissions to EMT Norman and Officer Peeler that he was operating the motorcycle at the
time of the accident, EMT Norman testified that he wrote in his report that Huff was driving
approximately thirty miles per hour at the time of the crash. EMT Norman specifically stated he
would not have put this information in his report unless Huff had made the statement. Detective
Reyes, who investigated the incident, calculated the motorcycle was traveling at approximately
thirty to forty miles an hour at the time of the crash, corroborating the speed as relayed to the EMT
by Huff. Investigator Lary testified Huff was the registered owner of the motorcycle and had a
motorcycle endorsement on his driver’s license. According to Investigator Lary, Harding-Watts
had no such endorsement. The State also presented evidence from Sergeant Foulke, an
experienced motorcycle rider, who testified it would have been more difficult for the motorcycle
passenger to dismount the motorcycle, but an experienced driver could escape uninjured from a
motorcycle crash. The evidence showed that although Harding-Watts’s injuries were horrific,
resulting in her death, Huff was relatively uninjured. Finally, the jury was aware that Huff had
two prior convictions for DWI.
Given the evidence set forth above, we hold there is evidence outside of Huff’s
extrajudicial confession to establish he was operating the motorcycle at the time of the crash.
Accordingly, the corpus delecti rule was satisfied. See Salazar, 86 S.W.3d at 645; see also
Gonzales v. State, 190 S.W.3d 125, 131 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (holding
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that corroborating evidence need not prove underlying offense conclusively); cf. Layland v. State,
144 S.W.3d 647, 651 (Tex. App.—Beaumont 2004, no pet.) (holding that corpus delecti of DWI
is that someone operated motor vehicle in public place while intoxicated). Based on satisfaction
of the corpus delecti rule, the nature of Huff’s complaint, and the applicable standard of review,
we further hold the evidence was sufficient to support the felony murder conviction.
Dismissal Under the IADA
We next address Huff’s contention that the trial court erred in denying his request for a
dismissal based on a violation of the IADA. Huff claims that contrary to the State’s position, he
complied with all IADA requirements, mandating a dismissal.
Standard of Review
Whether a trial court erred in refusing to grant a motion to dismiss with regard to an untried
indictment, information, or complaint under the IADA is a question of law, and therefore, is subject
to de novo review. State v. Miles, 101 S.W.3d 180, 183 (Tex. App.—Dallas 2003, no pet.);
Espinoza v. State, 949 S.W.2d 10, 11 (Tex. App.—San Antonio 1997, pet. ref’d). However, the
factual findings underlying the trial court’s decision are reviewed under the clearly erroneous
standard. Miles, 101 S.W.3d at 183; Espinoza, 949 S.W.2d at 11. Thus, we will conduct a de novo
review concerning whether Huff complied with the requirements of the IADA, but we will use the
“highly deferential clearly-erroneous standard” with regard to our review of the factual findings
underlying the trial court’s decision to deny Huff’s motion. See State v. Chestnut, 424 S.W.3d
213, 216 (Tex. App.—Texarkana 2014, no pet.); see generally Nieto v. State, 365 S.W.3d 673, 676
(Tex. Crim. App. 2012) (holding, in context of Batson challenge, that clearly erroneous standard
is highly deferential and appellate court must defer to trial court’s ruling in absence of exceptional
circumstances).
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Application
Texas has adopted the IADA, which is “a congressionally sanctioned compact between the
United States and the states that have adopted it.” 1 Chesnut, 424 S.W.3d at 214 (citing Alabama
v. Bozeman, 533 U.S. 146, 148 (2001)); see TEX. CODE CRIM. PROC. ANN. art. 51.14 (West 2006).
The IADA was enacted and adopted by the member states because prior to its enactment and
adoption, it was difficult for a state to proceed with charges against an individual who was already
incarcerated in another state. TEX. CODE CRIM. PROC. ANN. art. 51.14, Art. I. The IADA sought
“to encourage the expeditious and orderly disposition” of pending charges, as well as resolving
pending detainers. 2 Id. In an effort to accomplish these goals, the IADA sets out the “cooperative”
procedures to be used when one state desires to try a defendant, who is currently incarcerated in a
penal or correctional institution of another state. Id.; State v. Votta, 299 S.W.3d 130, 134–35 (Tex.
Crim. App. 2009). It also permits a prisoner, against whom a detainer has been filed, to demand a
speedy disposition of the charges giving rise to the detainer. TEX. CODE CRIM. PROC. ANN. art.
51.14, Art. III. It is Article III that is at issue in this case.
The prosecuting authority seeking to try an individual who is incarcerated in another state’s
institution, must file a detainer with the institution in the state where the individual is being held.
Id. art. 51.14, Art. III(a); Votta, 299 S.W.3d at 135. Once the detainer is filed, the warden or other
official who has custody of the prisoner must “promptly” inform the prisoner that a detainer has
been filed against him and that he has the right to request a final disposition of the pending charges
upon which the detainer is based — this is where the right to a speedy disposition begins. TEX.
1
The term “State,” as used in the IADA refers to a state of the United States, the United States, a territory or possession
of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. TEX. CODE CRIM. PROC. ANN.
art. 51.14, Art. II(a).
2
A “detainer” “is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated,
asking that the prisoner be held for the agency, or that the agency be advised when the prisoner’s release is imminent.”
Fex v. Michigan, 507 U.S. 43, 44 (1993).
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CODE CRIM. PROC. ANN. art. 51.14, Art. III(c); Votta, 299 S.W.3d at 135. To request a final and
speedy disposition, the prisoner must give or send the warden or other official with custody over
him a “written notice of the place of his imprisonment and his request for final disposition.” TEX.
CODE CRIM. PROC. ANN. art. 51.14, Art. III(a), (b); Votta, 299 S.W.3d at 135. The prisoner must
include with his request “a certificate” containing specific information about his current
incarceration, e.g., term of commitment, time served, time remaining to be served, good time
earned, date of parole eligibility, and any decision of the state parole agency. TEX. CODE CRIM.
PROC. ANN. art. 51.14, Art. III(a); Votta, 299 S.W.3d at 135. The warden or other official with
custody over the prisoner must “promptly forward” the notice, request, and certificate to the proper
prosecuting authority and the court by registered or certified mail, return receipt requested. TEX.
CODE CRIM. PROC. ANN. art. 51.14, Art. III(b); Votta, 299 S.W.3d at 135. If the prisoner complies
with all the requirements in article 5l.14, he must be brought to trial in the state where charges are
pending “within 180 days from the date on which the prosecuting officer and the appropriate court
receive” the written request, unless a continuance is granted. Votta, 299 S.W.3d at 135 (citing
TEX. CODE CRIM. PROC. ANN. art. 51.14, Art. III(a)). If the prisoner has complied with the
statutory requirements and is not brought to trial within 180 days, the trial court must dismiss the
pending charges with prejudice. TEX. CODE CRIM. PROC. ANN. art. 51.14, Art. III(d); Votta, 299
S.W.3d at 135.
Huff was indicted for the offenses of felony murder, intoxication manslaughter,
manslaughter, and felony driving while intoxicated on April 11, 2011. Huff posted bond and was
released. On September 14, 2011, while he was free on bond, Huff surrendered himself to federal
authorities pursuant to an arrest warrant relating to a violation of probation. Huff was confined in
a federal correctional institution in Bastrop, Texas. The federal institution received a letter from
the Bexar County Sheriff’s Office advising the institution of the charges pending against Huff in
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Bexar County — murder and DWI, third offense. On January 30, 2012, the Department of
Justice/Federal Bureau of Prisons issued a Detainer Action Letter addressed to the Bexar County
Sheriff’s Office. The document stated that a detainer had been filed against Huff “in your favor,”
and advised that Huff’s release was tentatively scheduled for August 15, 2013. On February 3,
2012, Huff received the Detainer Action Letter, as well as a document entitled “Agreement of
Detainers Notice of Untried Indictment, Information or Complaint and Right to Request
Disposition.” The notice advised Huff of the pending charges and that he had the right to request
a final disposition of the pending Bexar County charges and that if he desired to do so, he was to
“notify the Supervisory Correctional Systems Specialist” in the institution where he was being
held.
On March 27, 2012, Huff’s attorney filed a “Motion for Speedy Trial” with the Bexar
County District Clerk. In the motion, Huff demanded a speedy trial pursuant section article 51.14
of the Code of Criminal Procedure, i.e., the IADA. Included in the motion was Huff’s “United
States Marshal[’]s Number” and the name and mailing address of the federal facility. Attached to
the motion was the “Detainer Action Letter” and the “Agreement of Detainers Notice of Untried
Indictment, Information or Complaint and Right to Request Disposition.” The second document
was the notice provided to Huff. The motion was signed by Huff’s attorney and delivered to “the
Bexar County District Attorney’s Office, San Antonio, Texas,” according to the certificate of
service.
Thereafter, on January 7, 2013, Huff filed his “Motion to Dismiss for Denial of Speedy
Trial.” In the motion, Huff claimed he was entitled to a dismissal of the Bexar County charges
because he had not been brought to trial within 180 days of the date he demanded a speedy trial,
i.e., March 27, 2012. In response, the State requested temporary custody of Huff pursuant to the
IADA. With Huff present, the trial court held a hearing on the motion to dismiss. At the hearing,
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an employee at the federal institution where Huff was confined — the supervisor of the records
office — testified Huff was apprised of his rights under the IADA, but the institution had no
evidence that Huff ever requested a final disposition under the IADA. She also testified inmates
are provided a handbook that advises them how to make requests under the IADA
It is undisputed that Huff was not brought to trial within 180 days of the date his attorney
filed the “Motion for Speedy Trial.” Thus, Huff contends he was entitled to a dismissal with
prejudice of the charges relating to the motorcycle accident. See TEX. CODE CRIM. PROC. ANN.
art. 51.14, Art. III(d). The State contends Huff was not entitled to a dismissal because he did not
comply with the mandates of article 51.14. Specifically, the State contends Huff did not provide
the warden or other official with custody over him a “written notice of the place of his
imprisonment and his request for final disposition.” Id. art. 51.14, Art. III(a), (b); Votta, 299
S.W.3d at 135. Rather, Huff’s attorney simply filed a “Motion for Speedy Trial.” The State further
contends that even if Huff’s attorney could make the request for final disposition on Huff’s behalf
via a motion for speedy trial, Huff’s attorney failed to: (1) attach the statutorily mandated
“certificate,” which must contain Huff’s term of commitment, time served, time remaining to be
served, good time earned, date of parole eligibility, and any decision of the state parole agency;
and (2) forward the certificate to the proper prosecuting authority and the court by registered or
certified mail, return receipt requested. TEX. CODE CRIM. PROC. ANN. art. 51.14, Art. III(a), (b);
Votta, 299 S.W.3d at 135. Indeed, Huff’s counsel did not attached the required certificate to the
motion. TEX. CODE CRIM. PROC. ANN. art. 51.14, Art. III(a); Votta, 299 S.W.3d at 135. Rather,
the motion merely contains information regarding Huff’s federal identification number and the
facility in which he is incarcerated. The certificate was provided to the State only after it requested
custody of Huff for purposes of the dismissal hearing. And, the motion’s certificate of service
bears a district clerk stamp and merely states it was delivered to the office of the district attorney
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— it does not state it was delivered via certified mail, return receipt requested and there is no
evidence of a green card in the record. TEX. CODE CRIM. PROC. ANN. art. 51.14, Art. III(b); Votta,
299 S.W.3d at 135.
Huff contends we should liberally construe the requirements of article 51.14 because the
article itself provides that it shall be “liberally construed to effectuate its purposes,” which are “to
encourage the expeditious and orderly disposition” of pending charges and determine the status of
detainers based on untried charges. TEX. CODE CRIM. PROC. ANN. art. 51.14, Arts. I, IX. Huff
contends the State was aware as of March 27, 2012 — pursuant to his motion to dismiss — that
he was in federal custody and was demanding a speedy trial. Huff seems to contend his compliance
failures are merely technical, and given the liberal construction language and the purpose of the
statute, his failures should not preclude a dismissal. In sum, according to Huff, because the State
had sufficient notice by way of counsel’s motion, but failed to bring Huff to trial within 180 days,
the IADA mandates dismissal. We disagree.
The prisoner bears the burden of compliance with the procedural requirements of the
IADA. Walker v. State, 201 S.W.3d 841, 846 (Tex. App.—Waco 2006, pet. ref’d); Morganfield
v. State, 919 S.W.2d 731, 734 (Tex. App.—San Antonio 1996, no pet.). Article III(b) of article
51.14 specifically states the prisoner must deliver his request for a final disposition to the warden
or other official having custody over him. TEX. CODE CRIM. PROC. ANN. art. 51.14, Art. III(b)
(emphasis added). Despite the mandatory language of Article III(b), several intermediate appellate
courts in this state have held a prisoner may also deliver his request directly to the court and
prosecuting attorney, rather than to the warden. Walker, 201 S.W.3d 846; Snyder v. State, No. 08-
04-00246-CR, 2005 WL 2313676, at *1 (Tex. App.—El Paso Sept. 22, 2005, no pet.) (not
designated for publication); Rowe v. State, Nos. 01-97-00677-CR & 01-97-00678-CR, 1999 WL
442139, at *7 (Tex. App.—Houston [1st Dist.] July 1, 1999, pet. ref’d) (not designated for
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publications); State v. Powell, 971 S.W.2d 577, 580 (Tex. App.—Dallas 1998, no pet.); Lara v.
State, 909 S.W.2d 615, 618 (Tex. App.—Fort Worth 1995, pet. ref’d); Bryant v. State, 819 S.W.2d
927, 931 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d); Burton v. State, 805 S.W.2d 564, 575
(Tex. App.—Dallas 1991, pet. ref’d). However, even these courts hold that when a prisoner takes
it upon himself to deliver the request for final disposition to the prosecutor and the court, he must
do so in the proper form and include the statutorily required information. See Walker, 201 S.W.3d
at 846; Snyder, 2005 WL 2313676, at *1; Rowe, 1999 WL 442139, at *7; Powell, 971 S.W.2d at
580; Lara, 909 S.W.2d at 618; Bryant, 819 S.W.2d at 931; Burton, 805 S.W.2d at 575. As stated
by the court in Walker:
If the prisoner delivers the transfer request to the warden where he is incarcerated
for forwarding, then the prisoner’s “only obligation [i]s to show that he notified the
appropriate [prison] officials of his desire to [be transferred].” [citations omitted]
Conversely, if the prisoner decides to deliver his transfer request directly to the
court and prosecuting attorney of the other state, he is personally responsible to see
that the notice is sent by registered or certified mail, return receipt requested, to
those authorities. [citations omitted]
201 S.W.3d at 846. And in Bryant, the court specifically held letters to the court and prosecutor
stating the prisoner’s desire for a speedy trial, a final disposition, and dismissal were insufficient
under the IADA — and therefore the prisoner was not entitled to a dismissal — because the
prisoner failed to include the statutorily required certificate or the information that should have
been included therein. 819 S.W.2d at 930–31.
Accordingly, assuming a prisoner may himself deliver the request for final disposition to
the court and prosecuting attorney, or do so through counsel, rather than by delivering it to the
warden, we too hold he or his attorney must do so in accordance with the requirements of the
IADA. See Walker, 201 S.W.3d at 846; Snyder, 2005 WL 2313676, at *1; Rowe, 1999 WL
442139, at *7; Powell, 971 S.W.2d at 580; Lara, 909 S.W.2d at 618; Bryant, 819 S.W.2d at 931;
Burton, 805 S.W.2d at 575. Specifically, when a prisoner decides to notify the prosecutor and the
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court directly — or to do so through counsel — the prisoner or counsel must include the certificate
and the information required to be included therein, and must send the request by registered or
certified mail, return receipt requested. See Walker, 201 S.W.3d at 846; Snyder, 2005 WL
2313676, at *1; Rowe, 1999 WL 442139, at *7; Powell, 971 S.W.2d at 580; Lara, 909 S.W.2d at
618; Bryant, 819 S.W.2d at 931; Burton, 805 S.W.2d at 575. If the prisoner or his authorized
counsel does not include the certificate with the necessary information, or fails to send the request
by registered or certified mail, return receipt requested, the 180-day period does not begin to run.
See Bryant, 819 S.W.2d at 931.
The Supreme Court’s decision in Alabama v. Bozeman, 533 U.S. 146 (2001), although
decided under the IADA provision dealing with time limits for trying prisoners from other states
when they are returned to the requesting state at the request of the prosecutor, is instructive. In
that case, the prisoner was serving a federal prison sentence in Florida when an Alabama
prosecutor sought to arraign him on firearms charges and have counsel appointed. Bozeman, 533
U.S. at 151. The prisoner was transferred to Alabama where he spent the night in the county jail.
Id. The next morning he appeared in an Alabama court with local counsel; the prisoner was
returned to federal prison that same evening. Id. When Alabama brought the prisoner back for
trial one month later, the prisoner moved to dismiss the state charges because he had been returned
to Florida, the original place of imprisonment, prior to trial being had on state charges — a
violation of the IADA. Id. The trial court denied the motion to dismiss, the prisoner was convicted
on the state charges, and an intermediate Alabama appellate court affirmed the conviction. Id. at
152. The Alabama State Supreme Court reversed, holding the literal language of the IADA
controlled, requiring dismissal of the state charges. Id. The dissenters on the Alabama Supreme
Court argued the violation was merely “technical” and did not require dismissal. Id. The United
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States Supreme Court affirmed the Alabama Supreme Court, holding that that language of the
IADA:
[M]ilitates against an implicit exception for it is absolute. It says that, when a
prisoner is “returned” before trial, the indictment, information, or complaint “shall
not be of any further force or effect, and the court shall enter an order dismissing
the same with prejudice.” [citations omitted] (emphasis added). The word “shall”
is ordinarily “the language of command.” [citations omitted]
Id. at 153. Although Bozeman is factually distinguishable, dealing with a separate provision of the
IADA, its broader implication is not. Huff advocates the kind of exception the Bozeman Court
refused to accept — something less than absolute compliance with the mandatory language.
Article III(b) specifically states the 180-day deadlines applies only when the prisoner shall have
caused to be delivered to the prosecutor and the court his request for final disposition, which shall
include the certificate described in article III(a) and shall be sent by registered or certified mail,
return receipt requested. TEX. CODE CRIM. PROC. ANN. art. 51.14, Art. III(a), (b) (emphasis
added). The use of “shall” is exactly what the Supreme Court held militated against an implicit
exception to the IADA.
We therefore hold that because Huff did not comply with the statutorily mandated
requirements of the IADA — neither he nor his counsel provided the state or the court with the
certificate and the information required to be included therein, nor did they send the alleged request
by registered or certified mail, return receipt request — the 180-day deadline never commenced.
Accordingly, because Huff did not comply with the IADA, the trial court did not err in denying
his motion to dismiss, and we overrule this issue.
Speedy Trial
Huff also asserts that even if this court concludes he did not comply with the requirements
of the IADA, he is still entitled to a dismissal because he was denied his right to a speedy trial
under the United States and Texas Constitutions. See U.S. CONST. amend. VI; TEX. CONST. art. I,
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§ 10. 3 Huff correctly points out that the requirements for a “speedy trial” under the IADA do not
apply to a constitutionally-based speedy trial claim.
Standard of Review
When we review a trial court’s ruling on a motion to dismiss based on a speedy trial claim,
we apply a bifurcated standard of review. Gonzales v. State, 435 S.W.3d 801, 808 (Tex. Crim.
App. 2014); Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008). We give almost total
deference to the trial court’s historical findings of fact that are supported by the record and to the
trial court’s reasonable inferences drawn from those facts, and we view all of the evidence in favor
of the trial court’s ultimate ruling. Gonzales, 435 S.W.3d at 808–09; Cantu, 253 S.W.3d at 282.
With regard to factual issues, when the trial court assesses the evidence at a speedy trial hearing,
it may completely disregard a witness’s testimony based on credibility and demeanor evaluations,
even if the witness’s testimony is uncontroverted. Cantu, 253 S.W.3d at 282. The trial court is
also entitled to disbelieve any evidence as long as it has a “reasonable and articulable reason for
doing so.” Id.
With regard to the legal components of a speedy trial review, we conduct a de novo review
in determining whether there was sufficient presumptive prejudice to proceed to a Barker v. Wingo
analysis and in weighing the factors set out in that case — these are legal questions. Gonzales,
435 S.W.3d at 808–09; Cantu, 253 S.W.3d at 282. “Review of the individual Barker factors
necessarily involves fact determinations and legal conclusions, but “[t]he balancing test as a whole
. . . is a purely legal question.” Cantu, 253 S.W.3d at 282 (quoting Zamorano v. State, 84 S.W.3d
643, 648 n.19 (Tex. Crim. App. 2002)).
3
See TEX. CONST. art. I, § 10. The Texas Court of Criminal Appeals has held that although the right to a speedy trial
guaranteed by the Texas Constitution is independent of the right guaranteed by the Sixth Amendment of the United
States Constitution, the analysis for claims under the Texas Constitution is the same as for claims under the Sixth
Amendment. Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992).
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Application
The Sixth Amendment of the United States Constitution, which is applicable to the states
through the Fourteenth Amendment, guarantees an accused the right to a speedy trial. U.S. CONST.
amends. VI, XIV; Gonzales, 435 S.W.3d at 808; Cantu, 253 S.W.3d at 280. We analyze speedy
trial claims “on an ad hoc basis,” weighing and balancing the factors set out in Barker v. Wingo:
(1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right; and (4) the
prejudice to the accused. Gonzales, 435 S.W.3d at 808; see Barker v. Wingo, 407 U.S. 514, 530
(1972). The State must justify the length of the delay; however, the defendant must prove assertion
of the right and show prejudice. Cantu, 253 S.W.3d at 281. The defendant’s burden “varies
inversely” with the State’s degree of culpability for the delay. Id. (quoting Robinson v. Whitley, 2
F.3d 562, 570 (5th Cir. 1993)). “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.” Id. at 280–81.
The Barker analysis is not triggered until the defendant makes a threshold showing that the
delay is sufficiently unreasonable so as to be “presumptively prejudicial.” Gonzales, 435 S.W.3d
at 808 (quoting Doggett v. United States, 505 U.S. 647, 652 n.1 (1992)); Cantu, 253 S.W.3d at
281 (same). Although there is no bright line rule regarding when a delay is “presumptively
prejudicial,” the Court of Criminal Appeals has held that a four-month delay is insufficient, but a
seventeen-month delay is sufficient. Cantu, 253 S.W.3d at 281 (citing Pete v. State, 501 S.W.2d
683, 687 (Tex. Crim. App. 1973) (holding four-month delay is not presumptively prejudicial);
Phillips v. State, 650 S.W.2d 396, 399 (Tex. Crim. App. 1983) (holding seventeen-month delay is
presumptively prejudicial)). If the reviewing court determines the delay is presumptively
prejudicial, it must analyze the speedy trial claim by first weighing the strength of the remaining
factors and then balancing their relative weights in light of “the conduct of both the prosecution
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and the defendant.” Cantu, 253 S.W.3d at 281 (quoting Barker, 407 U.S. at 530). In other words,
the Barker factors are related and must be considered together along with any other relevant
circumstances, and no one factor is either necessary or sufficient to find a speedy trial violation.
Cantu, 253 S.W.3d at 281. Accordingly, a reviewing court must “engage ‘in a difficult and
sensitive balancing process’ in each individual case” to determine whether a dismissal in favor of
the defendant is warranted. Id. (quoting Barker, 407 U.S. at 533); Dragoo v. State, 96 S.W.3d
308, 313 (Tex. Crim. App. 2003) (citing Barker, 407 U.S. at 530).
a. Length of Delay
Courts measure the length of delay “from the time the accused is arrested or formally
accused.” Gonzales, 435 S.W.3d at 809. A delay that is longer than the minimum needed to
trigger an analysis under Barker weighs against the State. Id. Moreover, “the longer the delay,
the more the defendant’s prejudice is compounded” because “‘the presumption that pretrial delay
has prejudiced the accused intensifies over time.’” Id. (quoting Zamorano v. State, 84 S.W.3d
643, 649 (Tex. Crim. App. 2002) (quoting Doggett, 505 U.S. at 652)).
The State concedes the delay in this case is presumptively prejudicial so as to trigger the
Barker analysis, and we agree. Huff was arrested August 6, 2009, and thereafter indicted;
however, the original indictment was dismissed by the State and Huff was reindicted on April 11,
2011. Trial began on June 24, 2013, when the parties engaged in voir dire with the potential jurors.
Whether we consider the original arrest date or subsequent indictment, the delay is presumptively
prejudicial. From arrest, almost four years had elapsed prior to trial, and even from the second
indictment, more than two years had elapsed — both are far longer than the seventeen-month delay
found presumptively prejudicial in Phillips. See 650 S.W.2d at 399. Because the delay was
beyond the minimum needed to trigger the Barker inquiry, this factor weighs heavily in favor of
finding a violation of Huff’s right to a speedy trial. See Zamorano, 84 S.W.3d at 649.
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b. Reason for Delay
As to the second Barker factor — reason for the delay — it looks to the reasons put forth by
the State to justify the delay. Gonzales, 435 S.W.3d at 809 (citing Barker, 407 U.S. at 531). The
Court of Criminal Appeals advises that when we assess the State’s reasons, we must assign
different weights to different reasons. Gonzales, 435 S.W.3d at 809 (citing Zamorano, 84 S.W.3d
at 649). Quoting Zamorano, the Gonzales court explained:
A deliberate attempt to delay the trial in order to hamper the defense should be
weighted heavily against the government. A more neutral reason such as
negligence or overcrowded courts should be weighted less heavily but nevertheless
should be considered since the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant. Finally, a valid reason,
such as a missing witness, should serve to justify appropriate delay.
435 S.W.3d at 809–10 (quoting Zamorano, 84 S.W.3d at 649). Thus, reasons that are unjustifiable
count toward the length of delay, but justifiable reasons do not. Gonzales, 435 S.W.3d at 809
(citing Barker, 407 U.S. at 531–32).
At the speedy trial hearing, Huff’s counsel told the trial court he had been prepared and
ready to go to trial as scheduled on February 14, 2011, pursuant to the State’s original involuntary
manslaughter indictment. However, the record shows Huff’s counsel moved for a continuance on
February 14, 2011. In the motion for continuance, Huff’s counsel cited numerous reasons for the
delay: (1) a pending competency hearing for another client; (2) current schedule of other cases
preventing necessary preparation for trial; and (3) medical issues with regard to a defense witness
that would create a “physical difficulty” for the witness if required to appear at this time. The next
day, the trial court granted the State’s motion to dismiss the indictment, and Huff was reindicted
on murder charges in April. Thereafter, trial dates were set for May, June, August, and September
of 2011, but as noted above, trial did not begin until June of 2013.
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The record does not include reasons for the State’s failure to bring Huff to trial from May
to September, but it is undisputed that in September 2011, Huff was arrested on an outstanding
federal warrant and incarcerated in a federal facility. No trial dates were set after the September
2011 setting. In fact, it appears from the record Huff’s case dropped off the court’s docket. The
reason for this was attributed by the trial court to the district clerk — the trial court specifically
states: “I haven’t been able to figure out why the case didn’t come up on the docket for so long a
period of time. That is disturbing that it apparently languished without being set, but that’s the
district clerk’s issue, not ours, and the setting clerk’s issue.” (emphasis added).
Thus, much of the delay appears to be the result of negligence, but as noted above, this
weighs against the State, though not as heavily as would a deliberate delay, particularly in this case
where the trial court acknowledged that it was seemingly the clerk’s fault the matter dropped off
the docket. See Gonzales, 435 S.W.3d at 809–10. Because the State offered the trial court no
explanation for the delay, this too weighs in favor of a speedy trial violation, but not heavily.
Dragoo v. State, 96 S.W.3d 308, 313–14 (Tex. Crim. App. 2003). In the absence of an explanation,
the trial court cannot presume either a deliberate delay by the State in order to prejudice the
defendant or a valid reason for the delay. Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App.
2003); Dragoo, 96 S.W.3d at 314.
There is, however, some responsibility for the delay to be assigned to Huff as well. It is
clear that when the case was first set for trial on February 14, 2011, Huff’s counsel was not ready.
He filed a motion for continuance citing several reasons to delay the trial. Thereafter, Huff was
arrested on a federal warrant and removed from the jurisdiction. Additionally, when asked by the
trial court at the May 20, 2013 hearing on Huff’s motion for speedy trial whether he was ready to
proceed, Huff’s counsel stated they were “not ready . . . we’re not prepared to proceed on the —
on the murder case.” Admittedly, this second continuance resulted in a delay of only a month.
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Based on the foregoing, we hold the reason for the delay — or lack thereof — weighs
against the State and in favor of a speedy trial violation. See Gonzales, 435 S.W.3d at 809–10;
Dragoo, 96 S.W.3d at 313–14. However, we further hold that it does not weigh heavily against
the State or in favor of dismissal as the delay was the result of negligence, some of the negligence
could be attributed to the clerk according to the trial court, and Huff bore some responsibility for
the delay. See Gonzales, 435 S.W.3d at 809–10; Dragoo, 96 S.W.3d at 313–14.
c. Assertion of Right to Speedy Trial
It is undisputed that Huff was arrested and initially indicted in 2009. He was out on bond
soon thereafter. He was then reindicted in April 2011, but he was again free on bond within days.
It was not until he was arrested in September 2011 by federal authorities that he was incarcerated
and remained so. However, Huff did not file his motion for a speedy trial, which referenced only
a speedy trial under the IADA, until March 27, 2012. He then filed, in essence, the same motion
on January 7, 2013, again referencing only the IADA. It was not until the date of trial, June 24,
2013, that Huff filed a motion asserting his rights to a speedy trial under the United States and
Texas Constitutions. Notably, it was not until this motion was filed that Huff requested a hearing
on any speedy trial claim. It does not appear from the record that Huff made any attempt to have
even his IADA speedy trial claims heard by the court until pretrial motions were heard in May
2013 — a month before trial (when he asked for a continuance because he was not ready on the
murder charge).
The timing of a defendant’s assertion of his speedy trial claim affects the other Barker
factors. Gonzales, 435 S.W.3d at 810–11 (citing Barker, 407 U.S. at 531). Accordingly, the
defendant’s assertion of his right to a speedy trial “‘is entitled to strong evidentiary weight in
determining whether the defendant is being deprived of the right [to a speedy trial].’” Gonzales,
435 S.W.3d at 810–11 (quoting Barker, 407 U.S. at 531–32). Here, Huff did not file his first
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speedy trial motion, which was limited to the right to trial under the IADA, until March 27, 2012
— more than two-and-a-half years after his original arrest and indictment, and almost a year after
he was reindicted. Huff did not file his motion for a speedy trial pursuant to the Sixth Amendment
and Article I, section 10 until the day of trial. Moreover, even if we consider the IADA motion
from September as an assertion of Huff’s right to a speedy trial under the federal and state
constitutions, at no time prior to May 2013 — a month before trial — does it appear that Huff
attempted to have his claim heard by the trial court.
We hold Huff’s demand — even if we can consider a demand for a speedy trial under the
IADA a constitutional demand for a speedy trial in the absence of language referencing same —
was not timely, coming more than two-and-a-half years after his original arrest and indictment,
and almost a year after he was reindicted. The failure to timely assert a speedy trial claim “‘makes
it difficult for a defendant to prove he was denied a speedy trial.’” Dragoo, 96 S.W.3d at 314
(quoting Barker, 407 U.S. 532). The absence of a timely demand strongly suggests Huff did not
really want a speedy trial and that he was not prejudiced by the lack of one. See Dragoo, 96
S.W.3d at 314 (citing Barker, 407 U.S. at 532). Huff’s inaction weighs more heavily against a
violation the longer the delay becomes, and here the delay was quite extensive. See id.
Accordingly, we hold Huff’s delay in asserting his right to a speedy trial weighs heavily against
finding a constitutional violation of his right to a speedy trial. See id.
d. Prejudice to Huff
Finally, when analyzing the prejudice, if any, to Huff, we must do so in light of the interests
the right to a speedy trial was designed to protect: (1) freedom from oppressive pretrial
incarceration; (2) mitigation of the anxiety and concern accompanying public accusation; and (3)
avoidance of impairment to the accused’s defense. See Cantu, 253 S.W.3d at 285. The supreme
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court has held that of these three interests, the third one is the most serious because a defendant’s
inability to prepare his defense affects the fairness of the entire system. Id.
As to Huff’s incarceration, he quickly made bond each time he was arrested on the state
charges. Huff presented no evidence that it was difficult for him to obtain bond. Huff was only
incarcerated because he was arrested by federal authorities pursuant to a federal warrant. Huff
presented no evidence he suffered anxiety or concern over the murder accusation, which was based
on his third DWI. Thus, we are left with the third, most serious factor — impairment to Huff’s
defense.
Huff points out that one of his witnesses had difficulty remember details, and another
witness experienced trouble remembering dates. The State points out Huff did not present
evidence of his witnesses’ faulty memories at the hearing on the speedy trial motion. He points
only to the witnesses’ trial testimony. When we review a trial court’s ruling on a motion to dismiss
based on an alleged speedy trial violation, we must do so based on the arguments, information,
and evidence available to the trial court at the time it ruled. Shaw, 117 S.W.3d at 889 (citing
Dragoo, 96 S.W.3d at 313). However, affirmative proof of prejudice is not necessary for every
speedy trial claim because excessive delay presumptively prejudices the defendant in ways he may
be unable to prove. See Doggett, 505 U.S. at 655. Nevertheless, the presumption of prejudice to
Huff’s ability to defend himself is extenuated by his acquiescence in the delay. Id. at 658.
Accordingly, although we presume the lengthy delay adversely affected Huff’s ability to defend
himself, this presumption is extenuated — as is any theoretical prejudice — due to Huff’s extensive
delay in asserting his right to a speedy trial under the constitution. As noted above, unless we
consider the motion requesting a speedy trial under the IADA as a request under the constitution,
Huff did not request a speedy trial until the day of trial. And even considering the March 27, 2013
IADA motion, it was not filed until more than two-and-a-half years after his original arrest and
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indictment, and almost a year after he was reindicted. Thus, we hold Huff suffered no prejudice,
weighing against his speedy trial claim.
e. Balancing the Barker Factors
Having addressed the Barker factors, we must now balance them. See Cantu, 253 S.W.3d
at 280. Weighing in favor of finding a violation of Huff’s right to a speedy trial is the extensive
length of the delay and the absence of any reason for most of the delay. The first weighs heavily
in favor of dismissal, but the second factor less so. The third and fourth factors weigh heavily
against a finding of a speedy trial violation. Huff failed to assert his right, arguably, until the day
of trial, but even if we consider the March 27, 2013 IADA motion as an assertion of the
constitutional right, Huff waited more than two-and-a-half years after his original arrest and
indictment, and almost a year after he was reindicted to file the motion. Moreover, he waited until
May 2013 to present the motion to the trial court. Finally, as to the fourth factor, Huff has failed
to establish any prejudice. Given that he did not file the March 27, 2013 motion until three months
before trial, the inability of his witnesses to recall specific details is attributable to his own delay
in asserting his claim. Accordingly, we hold the weight of the four factors, when balanced
together, militates against finding a violation of Huff’s right to a speedy trial.
Motion to Suppress
Finally, Huff contends the trial court erred in failing to grant his motion to suppress.
Specifically, he argues his motion should have been granted because the Supreme Court’s decision
in Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013) requires the existence of exigent
circumstances before a police officer can require a warrantless, nonconsensual blood draw
pursuant to section 724.012(b) of the Texas Transportation Code, and there were no exigent
circumstances in this case. The State counters, arguing the blood draw was permissible under the
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Transportation Code, but even if it was not, exigent circumstances existed or the officer acted in
good faith reliance on the Transportation Code.
Standard of Review
Appellate courts review trial court rulings on motions to suppress under a bifurcated
standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). With regard
to a determination of historical facts, we afford great deference to a trial court’s determination. Id.
This is because trial judges are uniquely situated to observe the demeanor and appearance of any
witnesses. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). As the sole fact finder at
a suppression hearing, a trial court may believe or disbelieve any portion of a witness’s testimony
and make reasonable inferences from the evidence presented. Amador v. State, 275 S.W.3d 872,
878 (Tex. Crim. App. 2009). However, whether a specific search or seizure is reasonable or
supported by probable cause is a question of law subject to de novo review. Dixon v. State, 206
S.W.3d 613, 616 (Tex. Crim. App. 2006).
Application
In several recent cases, this court analyzed McNeely and concluded section 724.012(b) does
not constitute a valid exception to the warrant requirement of the Fourth Amendment. See, e.g.,
Aviles v. State, 443 S.W.3d 291, 294 (Tex. App.—San Antonio 2014, pet. filed); McNeil v. State,
443 S.W.3d 295, 300 (Tex. App.—San Antonio 2014, pet. filed); Weems v. State, 434 S.W.3d 655,
665 (Tex. App.—San Antonio 2014, pet. granted). Section 724.012(b) is often referred to as the
mandatory blood draw statute. Subsection(b)(1)(B), which is at issue in this case, provides that an
officer can require a person to submit to a breath test or blood draw when an individual other than
the person has suffered serious bodily injury — in this case, the record establishes Harding-Watts
suffered serious bodily injury. See TEX. TRANSP. CODE ANN. § 724.012(b)(1)(B) (West 2011). In
Weems, we held McNeely “clearly proscribed what it labeled categorical or per se rules for
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warrantless blood testing, emphasizing over and over again that the reasonableness of a search
must be judged based on the totality of the circumstances presented in each case.” Weems, 434
S.W.3d at 665 (citing McNeely, 133 S. Ct. at 1560–63). In Weems, as well as in Aviles and McNeil,
we held the mandatory blood draw statute creates the kind of categorical or per se rule rejected by
the Supreme Court in McNeely. Aviles, 443 S.W.3d at 293; McNeil, 443 S.W.3d at 300; Weems,
434 S.W.3d at 665. The statute simply does not allow for consideration of the totality of the
circumstances present in each case as required. Weems, 434 S.W.3d at 665. Rather, these statutes
consider only certain facts, when McNeely mandates a consideration of the totality of the
circumstances. Id. Accordingly, we held the mandatory blood draw statute, although not
unconstitutional per se, 4 is not a valid exception to the Fourth Amendment’s warrant requirement.
See Aviles, 443 S.W.3d at 294; McNeil, 443 S.W.3d at 300; Weems, 434 S.W.3d at 665.
Therefore, based on the analyses and holdings in our prior opinions, we hold the trial court
erred in denying Huff’s motion to suppress based on a blood draw pursuant to section 724.012(b)
of the Transportation Code. See Aviles, 443 S.W.3d at 294; McNeil, 443 S.W.3d at 300; Weems,
434 S.W.3d at 665. We again hold that McNeely requires the existence of exigent circumstances
or some other recognized exception to the warrant requirement before a police officer can order a
warrantless, nonconsensual blood draw pursuant to the provisions of the Texas Transportation
Code, including section 724.012(b).
a. Exigency
As noted above, the State contends that even if a blood draw was impermissible under
section 724.012(b)(1)(B), the exigency exception justified the warrantless blood draw. We
4
This court did not hold, and does not now hold, that section 724.012(b) is unconstitutional. Rather, we merely held
that under McNeely, it did not create a per se exception to the Fourth Amendment’s warrant requirement. The statute
may be constitutional for other purposes.
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disagree — as did the trial court. At the hearing on the motion to suppress, Officer Peeler testified
he requested a mandatory blood draw without a warrant because Harding-Watts suffered serious
bodily injury and he believed Huff was under the influence. When queried as to whether he could
have obtained a warrant, Officer Peeler first testified it would have been impossible for him to
obtain a warrant after hours because there were no procedures in place for doing so. However,
when specifically asked if there were “any exigent circumstances that prevented [him] from getting
a warrant[,]” Officer Peeler admitted there were not. Officer Peeler was the only witness at the
suppression hearing, and he in essence admitted he relied on the mandatory blood draw statute to
seize Huff’s blood — normal procedure for San Antonio police officers.
Although the trial court ultimately denied Huff’s motion to suppress, the trial court
expressly rejected the State’s assertion of exigency, as do we. The trial court noted the officer
testified there were no exigent circumstances; rather, it was simply the normal procedure for
officers not to seek warrants under these types of circumstances. The trial court stated there were
“full-time 24/7 magistrates” available: “Trust me, I’ve signed many warrants at 3:00 o’clock in the
morning at my house. So there’s plenty of judges that will sign a warrant. So we are dealing
solely . . . on [the officer’s] testimony that procedurally . . . [he] elected not to get a warrant because
[he] didn’t think [he] needed to.” Accordingly, the court ruled there were no exigent
circumstances. We agree.
Admittedly, “[t]here is a strong preference for searches to be administered pursuant to a
warrant.” Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007); see Illinois v.
McArthur, 531 U.S. 326, 338 (2001) (Souter, J., concurring) (“[A] search with a warrant has a
stronger claim to justification on later, judicial review than a search without one.”). Nevertheless,
not all warrantless searches are invalid. Gutierrez, 221 S.W.3d at 685. However, once a defendant
establishes there was no warrant, the burden shifts to the State to prove the warrantless search was
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reasonable under the totality of the circumstances. Amador, 221 S.W.3d at 672–73. The State
satisfies this burden if it proves an exception to the warrant requirement. See Gutierrez, 221
S.W.3d at 685.
Exigency is an established exception, and it “applies when the exigencies of the situation
make the needs of law enforcement so compelling that a warrantless search is objectively
reasonable under the Fourth Amendment.” McNeely, 133 S. Ct. at 1558 (quoting Kentucky v. King,
131 S. Ct. 1849, 1856 (2011)). To determine whether the warrantless search was permissible based
on exigency, we must look to the totality of the circumstances. McNeely, 133 S. Ct. at 1559. We
review the evidence presented at the suppression hearing to determine whether, under the totality
of the circumstances, the State proved the existence of exigent circumstances so as to permit a
warrantless blood draw.
Here, as noted above, the only evidence produced by the State at the suppression hearing
was provided by Officer Peeler. Officer Peeler specifically admitted there were no exigent
circumstances that prevented him from obtaining a warrant. Rather, he testified it was simply not
the practice of San Antonio police officers to obtain a warrant under circumstances such as those
presented in this case.
In McNeely, the Supreme Court held “the procedures in place for obtaining a warrant or
the availability of a magistrate judge, may affect whether the police can obtain a warrant in an
expeditious way and therefore may establish an exigency that permits a warrantless search.” 133
S. Ct. at 1568. However, in this case, the officer admitted there were no exigent circumstances and
the undisputed evidence establishes Officer Peeler never even considered trying to obtain a warrant
— though it was clear he could have if he needed to.
We agree with the trial court’s finding that there were no exigent circumstances. Rather,
the officer never thought of obtaining a warrant because it was not standard procedure.
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Accordingly, we hold this record does not show that under the totality of the circumstances, the
warrantless blood draw was justified by the exigency exception to the Fourth Amendment’s
warrant requirement. See id. at 1558–59.
b. Good Faith
The State also contends that even if the blood draw was impermissible based on McNeely
and the absence of exigent circumstances, the blood evidence was properly admitted under the
good faith exception to the exclusionary rule. The State notes Officer Peeler relied upon section
724.012(b)(1)(B) of the Transportation Code, which permits an officer to require a DWI arrestee
to provide a blood sample if an individual suffered serious bodily injury as a result of the DWI.
See TEX. TRANSP. CODE ANN. § 724.012(b)(1)(B).
When the State obtains evidence in violation of the Fourth Amendment, as it did here, the
federal exclusionary rule usually precludes the use of that evidence in a criminal proceeding
against the party whose rights were violated. Illinois v. Krull, 480 U.S. 340, 347 (1987) (citing
Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961)). The rule’s
purpose is to deter prospective police misconduct, thereby securing the Fourth Amendment’s
guarantee against unreasonable searches and seizures. Krull, 480 U.S. at 347 (citing United States
v. Calandra, 414 U.S. 338, 347 (1974)). However, under federal law, if law enforcement personnel
rely in good faith on a statute authorizing a warrantless search, and the statute in question is later
found to be unconstitutional, the evidence seized need not be excluded. Krull, 480 U.S. at 349–
50. Accordingly, the question is whether Officer Peeler could, in good faith, rely upon section
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724.012(b)(1)(B) when he decided not to obtain a warrant before subjecting Huff to a mandatory
blood draw. 5
The mandatory blood draw statute does not provide for a warrantless search. See TEX.
TRANSP. CODE ANN. § 724.012(b)(1)(B); McNeil, 443 S.W.3d at 303. Although the statute states
an officer shall take a blood draw if an individual suffered serious bodily injury as a result of
the DWI, it does not mandate that he do so without a warrant. See TEX. TRANSP. CODE ANN.
§ 724.012(b)(1)(B); McNeil, 443 S.W.3d at 303. Rather, the statute simply does not address, much
less dispense with, the Fourth Amendment’s warrant requirement for blood draws. See TEX.
TRANSP. CODE ANN. § 724.012(b)(1)(B); McNeil, 443 S.W.3d at 303. Thus, we cannot say Officer
Peeler acted in good faith when he failed to obtain a warrant based upon a statute that does not
dispense with the warrant requirement. See TEX. TRANSP. CODE ANN. § 724.012(b)(1)(B); McNeil,
443 S.W.3d at 303. Accordingly, we hold the good faith exception does not apply here.
c. Harm Analysis
We have determined the trial court erred in denying Huff’s motion to suppress because the
blood draw in this case violated Huff’s rights under the Fourth Amendment. Because this is an
error of constitutional magnitude, we must reverse the judgment unless we determine beyond a
reasonable doubt the trial court’s error did not contribute to the conviction. TEX. R. APP. P. 44.2(a);
see Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001) (holding harm analysis for
erroneous admission of evidence obtained in violation of Fourth Amendment is Rule 44.2(a)’s
constitutional standard).
5
Pursuant to article 38.23 of the Texas Code of Criminal Procedure, the only good faith exception is when an officer
“acting in objective good faith” relies upon a warrant issued by a magistrate based on probable cause. TEX. CODE
CRIM. PROC. ANN. art. 38.23(b) (West 2005). It is undisputed Officer Peeler did not obtain a warrant in this case.
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We must reverse Huff’s conviction unless we conclude beyond a reasonable doubt the trial
court’s error did not contribute to his conviction, and in doing so, we consider: (1) the nature of
the error; (2) the extent it was emphasized by the State; (3) the probable implications of the error;
and (4) the weight the jury likely have assigned to it during deliberations. Snowden v. State, 353
S.W.3d 815, 822 (Tex. Crim. App. 2011). As the Court of Criminal Appeals stated in Snowden,
these factors are not exclusive and other factors may be relevant to the analysis. Id. “At bottom,
an analysis for whether a particular constitutional error is harmless should take into account any
and every circumstance apparent in the record that logically informs an appellate determination
whether ‘beyond a reasonable doubt [that particular error] did not contribute to the conviction or
punishment.’” Id. (quoting TEX. R. APP. P. 44.2(a)).
Under similar facts, we held in Weems that the trial court’s error in denying the motion to
suppress was harmful. 434 S.W.3d at 667. We noted that the jury was instructed as to the
definition of “intoxicated,” which included “having an alcohol concentration of 0.08 or more,” and
there was testimony from Veronica Hargrove, a toxicologist with the Bexar County Medical
Examiner’s Office, that at the time of the blood draw the defendant’s blood alcohol concentration
was 0.18, making it likely that his blood alcohol concentration was 0.24 at the time of the accident.
Id.
In this case, during voir dire, the State specifically advised the potential jurors that:
“[B]ottom line is though, if a person is above .08 we don’t argue about it. If we
know their blood alcohol concentration is above a .08 there’s no argument about it.
And — and the reason why is because if you have ever known let’s say somebody
who drinks a lot or somebody who is a full-blown alcoholic, sometimes they can
be above .08 and they can walk around just fine and they can talk to you just fine
and you can’t always tell. But above .08 we don’t argue about it. Does that make
sense[?]”
Then, in its case-in-chief, the State relied upon similar testimony to that in Weems from the same
toxicologist, Veronica Hargrove. Here, she testified Huff’s blood sample had a blood alcohol
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concentration of 0.17 grams per deciliter, more than twice the legal limit of 0.08, and that a person
shows signs of impairment from alcohol consumption at 0.05 grams per deciliter. The toxicology
report showing Huff’s blood alcohol level was admitted into evidence. Hargrove also testified that
given the elimination rate of alcohol from the body, it was unlikely Huff’s blood alcohol content
was less than 0.08 at the time of the accident.
Additionally, during its closing argument, the State referenced Huff’s blood alcohol
concentration:
You can drive while intoxicated in the State of Texas, be at a .17, more than two
times the legal limit, and the first time if you don’t kill anybody like he did, it’s a
misdemeanor. You can do the same thing again, and if you don’t kill anybody it’s
still a misdemeanor. But the third time, three strikes, you’re out, it’s a felony. And
if you kill someone and we can prove all those things, then you’re facing a charge
for murder because drunks don’t choose who, when, and how they will kill.
* * *
It was [Huff’s] intent to drive while intoxicated. And you know what the
interesting thing about this is? If you think back over the course of the trial, they
know that. And if there was any doubt when the toxicologist was on the stand and
they asked, [w]ell, if he’s at .17 three and a half hours after the crash, how can he
say he’s above a .08, hypothetically speaking, while he was driving?
Finally, the jury was instructed, as it was in Weems, about the definition of “intoxicated,” which
included “having an alcohol concentration of .08 or more.” Given the State’s comments during
voir dire, the testimony from the toxicologist, the State’s reference to the blood alcohol in its
argument, and the jury instruction, we cannot say beyond a reasonable doubt that the trial court’s
error in denying Huff’s motion to suppress did not contribute to his conviction. Accordingly, we
sustain Huff’s issue with regard to the denial of his motion to suppress and hold the trial court’s
error reversible, entitling Huff to a new trial.
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CONCLUSION
Based on the foregoing, we overrule Huff’s sufficiency complaint, his complaint under the
IADA, and his speedy trial contention. However, we sustain Huff’s challenge to the trial court’s
denial of his motion to suppress and hold this was reversible error. Accordingly, because the
warrantless blood draw violated Huff’s Fourth Amendment rights and we cannot say beyond a
reasonable doubt that the erroneous admission of the results of the blood draw did not contribute
to his conviction, we reverse the trial court’s judgment and remand this matter for a new trial.
Marialyn Barnard, Justice
Publish
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