                            NUMBER 13-12-00654-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

NASIRU MUHAMMED USMAN
A/K/A MUHAMMED NASIRU
USMAN,                                                                    Appellant,


                                          v.


THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 297th District Court
                         of Tarrant County, Texas.


                        MEMORANDUM OPINION
          Before Justices Rodriguez, Benavides, and Longoria
              Memorandum Opinion by Justice Longoria
      By two issues, appellant, Nasiru Muhammed Usman, appeals his conviction for

theft of property the value of which is $20,000 or more but less than $100,000, a third-
degree felony, see TEX. PENAL CODE ANN. § 31.03(e)(5) (West Supp. 2011), enhanced

to a second-degree felony for purposes of punishment because (1) appellant was a

public servant at the time of the offense and the property appropriated came into his

custody, possession, or control by virtue of his status as a public servant, (2) appellant

was in a contractual relationship with the government at the time of the offense and the

property appropriated came into his custody, possession, or control by virtue of the

contractual relationship, and (3) the owner of the property appropriated was at the time

of the offense an elderly individual. Id. § 31.03(f)(1)–(3)(a). We affirm.

                                        I. BACKGROUND1

       On July 16, 2009, appellant was indicted on the charge of theft by a public

servant in an amount between $20,000 and $100,000. See id. On January 24, 2011,

while incarcerated in federal prison on an unrelated charge, appellant mailed a

“Notice/Request for Final Disposition Pursuant to Interstate Agreement on Detainers” to

the Tarrant County District Clerk’s Office. Thereafter, appellant was returned to Tarrant

County and made an appearance to face the charge on June 28, 2012. On July 19,

2012, appellant filed a “Motion to Dismiss Due to Delay under Interstate Agreement on

Detainers.”

       On August 23, 2012, the trial court held a hearing on appellant’s motion to

dismiss. During the hearing, appellant made an oral motion to dismiss on the additional

grounds that his constitutional rights to a speedy trial had been violated. The court




       1
          This case is before this Court on transfer from the Second Court of Appeals in Fort Worth
pursuant to an order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001 (West
2005).


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overruled the motions. Thereafter, on September 14, 2012, appellant entered into a

plea bargain and was sentenced to incarceration for two years. This appeal ensued.

                          II. INTERSTATE AGREEMENT ON DETAINERS ACT

         In his first issue, appellant argues that the trial court erred in denying his motion

to dismiss under the Interstate Agreement on Detainers Act (“IADA”).

A. Applicable Law

         “In Code of Criminal Procedure Article 51.14, Texas adopts [t]he . . . [IADA],

which outlines the cooperative procedure between the states to be used when one state

is seeking to try a prisoner who is currently imprisoned in a penal or correctional

institution of another state.” State v. Votta, 299 S.W.3d 130, 134–35 (Tex. Crim. App.

2009).       “The state with an untried indictment, information, or complaint against the

prisoner files a detainer with the institution in the state that is holding the prisoner.” Id.2

“The prison is required to promptly inform the prisoner that a detainer has been filed

against him and that he has the right to request final disposition of the charges.” Id.

(citing TEX. CODE CRIM. PROC. ANN. art. 51.14, art. III(c)).                   “The prisoner may then

request final disposition by giving written notice to the warden, who forwards the

request, along with a certificate containing information about the prisoner’s current

confinement, to the prosecuting officer and the appropriate court of the prosecuting

officer’s jurisdiction.” Id.3 “Under Article III(a), the prisoner must then be brought to trial


         2
          “A detainer is a request by a criminal justice agency that is filed 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.” State v. Votta, 299 S.W.3d 130, 135 n.5 (Tex. Crim. App.
2009).
         3
           “Under Texas Code of Criminal Procedure article 51.14, articles III(a) and (b) of the IADA
specify that the request and certificate must be sent by the warden, commissioner of corrections, or other
official having custody of the prisoner, to the prosecuting official and the appropriate court by registered or
certified mail, return receipt requested.” State v. Votta, 299 S.W.3d 130, 135 n.6 (Tex. Crim. App. 2009).

                                                      3
in the receiving state within 180 days from the date on which the prosecuting officer and

the appropriate court receive this written request for a final disposition, unless a

continuance is granted under the IADA.” Id. (citing TEX. CODE CRIM. PROC. ANN. art.

51.14, art. III(a)). “If the prisoner is not brought to trial within 180 days, the trial court

must dismiss the indictment with prejudice.” Id. (citing TEX. CODE CRIM. PROC. ANN. art.

51.14, art. III(d)).

B. The Evidence

        Appellant testified that, on some unspecified date while he was incarcerated in

federal prison, he filled out the “paperwork” for his IADA demand with the help of a

prison employee who functioned “kind of like [a] legal assistant.”         Appellant further

testified that, upon completing the paperwork, he told the employee that he wanted it

sent to the trial court. The employee said that appellant could “send it out” himself.

        Defense Exhibit 1, appellant’s “Notice/Request for Final Disposition Pursuant to

Interstate Agreement on Detainers,” was addressed to “Tonya Harlan,” the “Prosecuting

Officer 213th and 297th District Court of Tarrant County.” The “Notice/Request” was

signed by appellant and dated “06/14/2011” and file marked by the Tarrant County

District Clerk on “June 24, 2011.”      The “Notice/Request” is not accompanied by a

certificate of the appropriate official having custody of the prisoner stating the terms of

commitment, the time already served, the time remaining on the sentence, the amount

of good time earned, the time of parole eligibility, and any decision of the state parole

agency relating to the prisoner, as required by the statute. See TEX. CODE CRIM. PROC.

ANN. art. 51.14, art. III(a). The accompanying cover letter was addressed only to the

district clerk.



                                              4
       State’s Exhibit 1 consists of a mailing envelope addressed to “Joe Shannon, Jr.,

Tarrant County Criminal District Attorney.” Its postmark indicates that it was mailed on

April 30, 2012. It is stamp-marked “received,” and the date “5/8/12” is handwritten in the

box below the stamp mark. The return address in the upper left corner is the “Federal

Bureau of Prisons,” and a “certified mail” bar code is attached to the envelope.

       State’s Exhibit 1 also includes a cover letter dated April 18, 2012 from M. Cruz,

the warden of the federal prison in Seagoville, Texas, to “Joe Shannon, Jr.,” explaining

that “the above referenced defendant has requested disposition of pending charges in

your jurisdiction pursuant to the Interstate Agreement on Detainers Act. Necessary

forms are attached.”     The letter was stamped “received” with the date “5/8/12”

handwritten beneath the stamp. The forms include an “IAD – Certificate[] of Inmate

Status” that reflects appellant’s term of confinement, the time appellant had already

served, the time remaining on appellant’s sentence, the amount of good time earned by

appellant, the time of appellant’s parole eligibility, and that the U.S. Parole

Commission’s decision on appellant was “n/a.”

C. The Trial Court’s Findings

       The trial judge observed that although the second page of Defense Exhibit 1

contained the typed name of the prosecutor, the cover letter indicated that it had been

sent to the district clerk, and the judge did not “see any notations or other evidence that

it was actually sent on to the district attorney’s office.” The court also noted that the

exhibit “does not appear to be accompanied by the statement that is required by the

statute.”




                                            5
       In addition, the trial judge observed that State’s Exhibit 1, in contrast, “appears to

have been mailed on April 20th of 2012, received May 8 of 2012.” Both dates, the court

calculated, were less than 180 days before the hearing. Furthermore, the trial judge

also observed that “State’s Exhibit No. 1 does appear to be accompanied by the

information required under the statute.”

D. Discussion

       The trial court found that the first request for extradition under the IADA was not

sent to the “appropriate official,” the district attorney, in compliance with the IADA. The

court further found that the district attorney received notice and the required certification

on May 8, 2012, within 180 days of trial. In light of these findings, we agree with the

State that the trial court did not err in denying the motion to dismiss because the

timeline under the statute did not start to run until May 8, 2012, when appellant had

complied with the IADA. See Fex v. Michigan, 507 U.S. 43, 52 (1993) (“We hold that

the 180-day time period in Article III(a) of the IAD does not commence until the

prisoner’s request for final disposition of the charges against him has actually been

delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer

against him.”); State v. Garcia, 361 S.W.3d 244, 246 (Tex. App.—Amarillo 2012, no

pet.) (“[T]he missing information was not actually received by the district attorney until

August 13, 2010. So, the requisite deadline did not begin until that date, and trying

appellee on February 7, 2011, was timely”); Lara v. State, 909 S.W.2d 615, 618 (Tex.

App.—Fort Worth 1995, pet. ref’d) (“Our reading of appellant’s August, 1993, letter

indicates he made no attempt to include the required information. We find the trial court




                                             6
did not err by finding the August, 1993, letter was insufficient to begin running the 180-

day period under the IAD.”).

        Appellant’s first issue is overruled.

                         III. CONSTITUTIONAL RIGHTS TO A SPEEDY TRIAL

        In his second issue, appellant argues that the trial court erred in denying his

motion to dismiss based on his rights to a speedy trial under the federal and state

constitutions.

A. Applicable Law

        “The Sixth Amendment to the United States Constitution guarantees an accused

the right to a speedy trial.” Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008)

(referencing U.S. CONST. amend. VI). “A speedy trial protects three interests of the

defendant: freedom from oppressive pretrial incarceration, mitigation of the anxiety and

concern accompanying public accusation, and avoidance of impairment to the

accused’s defense.” Id.

        “The right attaches once a person becomes an ‘accused’—that is, once he is

arrested or charged.” Id. “Supreme Court precedent requires state courts to analyze

federal constitutional speedy-trial claims on an ad hoc basis by weighing and then

balancing the four Barker v. Wingo factors: 1) length of the delay, 2) reason for the

delay, 3) assertion of the right, and 4) prejudice to the accused.”                     Id. (quotations

omitted).4    “While the State has the burden of justifying the length of delay, the

defendant has the burden of proving the assertion of the right and showing prejudice.”


        4
          “TEX. CONST. art. I, § 10 also guarantees the accused in all criminal prosecutions the right to a
speedy and public trial.” Cantu v. State, 253 S.W.3d 273, 281 n.16 (Tex. Crim. App. 2008). “This right
exists independently of the federal guarantee, but this Court analyzes claims of a denial of the state
speedy-trial right under the same four Barker factors.” Id.

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Id. “The defendant’s burden of proof on the latter two factors ‘varies inversely’ with the

State’s degree of culpability for the delay.” Id. “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 test is triggered by a delay that is unreasonable enough to be

‘presumptively prejudicial.’” Id. at 281. “There is no set time element that triggers the

analysis, but . . . [the Texas Court of Criminal Appeals has] held that a delay of four

months is not sufficient while a seventeen-month delay is.” Id. “Once the Barker test is

triggered, courts must analyze the speedy-trial claim by first weighing the strength of

each of the Barker factors and then balancing their relative weights in light of the

conduct of both the prosecution and the defendant.” Id. (quotations omitted). “No one

factor is either a necessary or sufficient condition to the finding of a deprivation of the

right of speedy trial.” Id. “Instead, the four factors are related and must be considered

together along with any other relevant circumstances.” Id. “As no factor possesses

‘talismanic qualities, courts must engage in a difficult and sensitive balancing process in

each individual case.” Id. (quotations omitted).

      “Dismissal of the charging instrument with prejudice is mandated only upon a

finding that an accused’s Sixth Amendment speedy-trial right was actually violated.” Id.

“Because dismissal of the charges is a radical remedy, a wooden application of the

Barker factors would infringe upon the societal interest in trying people accused of

crime, rather than granting them immunization because of legal error.” Id. (quotations

omitted). “Thus, courts must apply the Barker balancing test with common sense and



                                            8
sensitivity to ensure that charges are dismissed only when the evidence shows that a

defendant’s actual and asserted interest in a speedy trial has been infringed.” Id. “The

constitutional right is that of a speedy trial, not dismissal of the charges.” Id.

B. Standard of Review

       “In reviewing the trial court’s ruling on appellant's federal constitutional speedy

trial claim, we apply a bifurcated standard of review: an abuse of discretion standard for

the factual components, and a de novo standard for the legal components.” Id. at 282

(quotations omitted). “Review of the individual Barker factors necessarily involves fact

determinations and legal conclusions, but the balancing test as a whole is a purely legal

question.” Id. (quotations omitted).

       “Under the abuse of discretion standard, appellate courts defer not only to a trial

judge's resolution of disputed facts, but also to his right to draw reasonable inferences

from those facts.” Id. “In assessing the evidence at a speedy-trial hearing, the trial

judge may completely disregard a witness’s testimony, based on credibility and

demeanor evaluations, even if that testimony is uncontroverted.” Id. “The trial judge

may disbelieve any evidence so long as there is a reasonable and articulable basis for

doing so.” Id. “And all of the evidence must be viewed in the light most favorable to his

ultimate ruling.” Id. Finally, “[b]ecause appellant lost in the trial court on his speedy-trial

claim, we presume that the trial judge resolved any disputed fact issues in the State’s

favor, and we defer to the implied findings of fact that the record supports.” Id.




                                              9
C. Discussion

1. Length of the Delay

       The State concedes that the three-year delay in this case was presumptively

unreasonable.

2. Reason for the Delay

       The State has the burden of justifying the length of delay. See id. at 280. At the

hearing on appellant’s motion to dismiss, the State told the trial court that “at the time of

the indictment, [appellant] was actually in federal custody so we couldn’t actually try him

at that point anyway because he was in federal custody.” On appeal, the State relates

the following:

       In the present case, the court’s docket reflects that the indictment was
       returned on July 16, 2009 and the State filed its announcement of ready
       on the same day. A warrant was issued and bond set at $10,000 on July
       20, 2009. Appellant made an initial appearance on July 31, 2009.

       Although the clerk’s record indicates that appellant made an “initial appearance”

on July 31, 2009, it is unclear whether appellant appeared in person or through counsel.

The record shows that, on November 3, 2009, the sheriff’s office placed a detainer on

appellant, who was then in custody in federal prison in Seagoville, Texas. The next

document in the clerk’s record indicates that appellant filed his pro se IADA request on

June 24, 2011, more than a year and a half later. On June 28, 2012, appellant made

another “initial appearance” and was appointed counsel. On July 19, 2012, appellant

filed his motion to dismiss under the IADA. The motion was heard on August 23, 2012,

and on September 14, 2012, appellant pled guilty to the charge as part of a plea-

bargain agreement.




                                             10
       The State argues that because appellant was in federal custody, “the delay, if

attributable at all to the State, should not weigh heavily against it.”       For his part,

appellant argues that the excuse is insufficient because the State failed to offer proof

that it exercised due diligence to secure appellant’s presence for trial. Appellant also

points out that the State knew appellant was in federal custody at least as early as

November 2009, when the sheriff’s department issued the detainer.

       No evidence was presented as to why there was no activity during this three-year

period, which is notable, particularly in light of the fact that, at all relevant times, the

State knew that appellant was in federal custody. Even the State concedes that “there

is no explanation for the delay.” “The primary burden of insuring that cases are brought

to trial [in a timely manner] rests on the courts and prosecution.” Murphy v. State, 280

S.W.3d 445, 453 (Tex. App.—Fort Worth 2009, pet. ref’d). With this burden in mind, the

trial court could have only reasonably concluded negligence on the part of the State to

prosecute the case. See id. This period of time must be counted against the State.

See id. But because there was no evidence that the State was engaging in purposeful

dilatory tactics, it does not count heavily against the State. Id. In sum, the State did not

justify the lengthy delay in this case. See id. Consequently, this factor tilts in favor of

appellant’s claim that he was denied a speedy trial.

3. Assertion of the Right to a Speedy Trial

       With respect to the third factor, counsel for appellant argued that State’s Exhibit 1

shows that appellant consistently asserted his right to a speedy trial. However, the

State points out that Defense Exhibit 1 establishes that appellant made his initial IADA

request on June 14, 2011. Thus, according to the State, appellant did not signal any



                                            11
desire for trial until nearly two years after he had been indicted. Thereafter, appellant

sought dismissal, not a speedy trial. See id. at 454 (“Filing for a dismissal instead of a

speedy trial generally weakens a speedy trial claim because it shows a desire to have

no trial instead of a speedy one.”). Because appellant did not assert his right to a

speedy trial for a lengthy period of time, and then after he did assert the right, he filed a

motion to dismiss the charge against him, we conclude that this factor weighs against

appellant and against his claim that he was denied his right to a speedy trial. See id.

4. Prejudice

       Finally, in support of the fourth factor, counsel for appellant offered the following

argument to the trial court:

       And he’s been extremely prejudiced by this delay because the underlying
       case, I think we would say, was a business being run by the defendant.
       The prosecution would probably say it was a scam. But regardless,
       there’s [sic] employees involved, there’s payroll involved, there’s [sic]
       records, people and witnesses that are going to be really hard to track
       down eight years later.

       On appeal, the State argues that appellant presented no evidence of prejudice.

We agree. “[S]tatements [by counsel] made during argument are not evidence, and

neither the factfinder nor this Court may consider them as such.” Mitchell v. State, No.

01-94-01041-CR, 1996 Tex. App. LEXIS 3394, at *5 (Tex. App.—Houston [1st Dist.]

July 11, 1996, no pet.) (not designated for publication). Accordingly, the fourth factor

weighs against appellant’s claim.

5. Balancing the Factors

       As set forth above, the first two factors weigh in favor of appellant’s claim, while

the second two factors weigh against it.       The delay of more than three years was

presumptively unreasonable and weighs strongly against the State. Furthermore, the

                                             12
State offered “no explanation for the delay.” However, there was no evidence of bad

faith or that the State engaged in purposeful dilatory tactics. The record supports only a

finding of negligence on the part of the State. Thus, the second factor weighs only

slightly against the State. The fact that appellant did not signal any desire for trial until

nearly two years after his indictment undermines his claim and establishes a lack of

diligence. Therefore, the third factor weighs strongly against appellant’s claim. Finally,

the complete absence of evidence on the prejudice factor also weighs strongly against

appellant. In sum, balancing the factors, we conclude that the trial court did not abuse

its discretion in denying appellant’s speedy-trial claim.

       Appellant’s second issue is overruled.

                                      IV. CONCLUSION

       The judgment of the trial court is affirmed.




                                                  _______________________
                                                  NORA L. LONGORIA
                                                  Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
8th day of August, 2013.




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