Donald F. Huff v. State , 467 S.W.3d 11 ( 2015 )


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  •                               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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    04-13-00891-CR
    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
    - 15 -
    04-13-00891-CR
    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
    - 16 -
    04-13-00891-CR
    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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    04-13-00891-CR
    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,
    - 18 -
    04-13-00891-CR
    § 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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    04-13-00891-CR
    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
    - 20 -
    04-13-00891-CR
    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
    .
    - 21 -
    04-13-00891-CR
    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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    04-13-00891-CR
    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.
    - 23 -
    04-13-00891-CR
    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
    - 24 -
    04-13-00891-CR
    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
    - 25 -
    04-13-00891-CR
    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
    - 26 -
    04-13-00891-CR
    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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    04-13-00891-CR
    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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    04-13-00891-CR
    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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    04-13-00891-CR
    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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    04-13-00891-CR
    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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    04-13-00891-CR
    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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    04-13-00891-CR
    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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    04-13-00891-CR
    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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    04-13-00891-CR
    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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    04-13-00891-CR
    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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