Case Information
*1 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.
B ACKGROUND
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 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. 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.
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.
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.
A NALYSIS
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 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
,
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. T EX . P ENAL C ODE A NN . § 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
,
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
,
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
,
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
,
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
,
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
,
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 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, 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
T EX . C ODE C RIM . P ROC . A NN .
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. T EX . C ODE C RIM . P ROC . A NN . art. 51.14, Art. III(a), (b);
Votta
,
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. T EX . C ODE C RIM . P ROC . A NN . 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
,
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]
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
,
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 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. T EX . C ODE C RIM . P ROC . A NN . 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. C ONST . amend. VI; T EX . C ONST . art. I, § 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
,
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
,
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. C ONST .
amends. VI, XIV;
Gonzales
,
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
,
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
,
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
,
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
,
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.
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.
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
,
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.
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
,
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
,
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
,
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
,
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
,
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 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
,
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
,
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
,
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 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
,
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
,
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. 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 T EX . T RANSP . C ODE A NN . § 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
,
The mandatory blood draw statute does not provide for a warrantless search.
See
T EX . T RANSP . C ODE A NN . § 724.012(b)(1)(B);
McNeil
,
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. T EX . R. A PP . P. 44.2(a);
see Hernandez v. State
,
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 T EX . R. A PP . 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 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.
C ONCLUSION
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
Notes
[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. T EX . C ODE C RIM . P ROC . A NN . 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
,
[3]
See
T EX . C ONST . 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
,
[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.
[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. T EX . C ODE C RIM . P ROC . A NN . art. 38.23(b) (West 2005). It is undisputed Officer Peeler did not obtain a warrant in this case.