In determining whether the state has exercised due diligence to secure the presence of a defendant detained in another jurisdiction, all relevant evidence must be considered. Massey v. State, 717 S.W.2d 768 (Tex.App. — Austin 1986, no pet.). Here, the only evidence of due diligence used by the state is that it caused a detainer to be placed on appellant at the federal penitentiary in October 1981. Contending this action was sufficient to show the exercise of due diligence the state cites: Ex parte Powell, 699 S.W.2d 841 (Tex.Crim.App. 1985); Bedford v. State, 703 S.W.2d 775 (Tex.App. — Houston [14th Dist.] 1985, no pet.); More v. State, 692 S.W.2d 912 (Tex.App. — Houston [14th Dist.] 1985, pet. ref'd); Salas v. State, 682 S.W.2d 414 (Tex.App. — Houston [1st Dist.] 1984, pet. ref'd) and Simonsen v. State, 662 S.W.2d 607 (Tex.App. — Houston [14th Dist.] 1983, pet. ref'd). However, each of these cases is distinguishable on the facts.
The State's failure to designate a witness is not sufficient to rebut a prima facie showing that the State was ready for trial. See Simonsen v. State, 662 S.W.2d 607 (Tex.App.-Houston [14th Dist.] 1983, no pet.); and Walters v. State, 628 S.W.2d 526 (Tex.App.-Fort Worth 1982, no pet.) (failure of State to conduct personal interviews of witnesses). Appellant's seventh point of error is overruled.
The decision in Musgrave also appears to be in conflict with this Court's decision in Hogan v. State, 24 S.W.2d 837 (Tex.Cr.App. 1930). Tex.R.App.Pro. 200(c)(3); (2) the Fifth Court of Appeals has rendered a decision in conflict with another court of appeals, see e.g., McQueen v. State, 714 S.W.2d 142 (Tex.App. — Fort Worth 1986, pet. granted); Guerrero v. State, 666 S.W.2d 350 (Tex.App. — Corpus Christi 1984, no pet.); Simonsen v. State, 662 S.W.2d 607 (Tex.App. — Houston [14th Dist.] 1983, pet. ref'd); Thomas v. State, 646 S.W.2d 565 (Tex.App. — Houston [1st Dist.] 1982, no pet.). Tex.R.App.Pro. 200(c)(1); and (3) the justices of the Fifth Court of Appeals have disagreed on an important question of law necessary to their decision, Gardner v. State, 736 S.W.2d 179 (Tex.App. — Dallas 1987) (Rowe, J., dissenting). Tex.R.App.Pro. 200(c)(5).
; Simonsen v. State, 662 S.W.2d 607, 611 (Tex. App.-Houston [14th Dist.] 1983, pet. ref'd) (concluding delay was attributable to defendant where he had an “apparent inability to work with” appointed counsel, among other things).
Thus, it is not surprising that courts regularly have found that the assertion-of-the-right factor weighs against the defendant despite a motion to dismiss on speedy trial grounds, particularly when the motion was filed well after arrest or indictment. See United States v. Avalos, 541 F.2d 1100, 1115 (5th Cir. 1976) (motion to dismiss eleven months after arrest and four months before trial); United States v. Palmer, 537 F.2d 1287 (5th Cir. 1976) (thirty months after arrest — which was one month after notice of indictment — and three months before trial); Thompkins v. State, 437 So.2d 634, 635 (Ala. 1983) (four months before trial); State v. Johnson, 190 Conn. 541, 461 A.2d 981, 984 (1983) (fourteen months after arrest, seven weeks before trial); Graves v. United States, 490 A.2d 1086, 1098-1101 (D.C.App. 1984) (ten months after arrest, fourteen months before trial); State v. Murphy, 496 A.2d 623, 628 (Me. 1985) (one year after arrest, thirteen months before trial); Simonsen v. State, 662 S.W.2d 607 (Tex.Ct.App. 1983) (seven months after arrest, two months before trial); Prince v. State, 638 S.W.2d 550, 554 (Tex.Ct.App. 1982). III.
This record is similar to other decisional precedents in which the statements of trial counsel and the probationer have been the basis to sustain the State's burden on the issue of identification. See Riera v. State, 662 S.W.2d 607 (Tex.Crim.App. 1983); Hogan v. State, 529 S.W.2d 515 (Tex.Crim.App. 1975). There is no evidence at all offered to prove that the Appellant was not the same person who was placed on probation after his plea to the involuntary manslaughter charge.
The evidence adduced by Appellant was insufficient to rebut the State's prima facie showing of ready. See Simonsen v. State, 662 S.W.2d 607, 610 (Tex.App. — Houston [14th Dist.] 1983, pet. ref'd). Appellant's first point of error is overruled.
Although appellant's testimony that he borrowed the vehicle from his friend David, whom he believed to be the owner, raises the defensive issue of mistake of fact cognizable under Lynch, we must assume that the trial judge, sitting as trier of fact without a jury, considered this defense and rejected it. McQueen v. State, 714 S.W.2d 142, 143 (Tex.App. — Fort Worth 1986, no pet.); see also Guerrero v. State, 666 S.W.2d 350, 352-53 (Tex.App. — Corpus Christi 1984, no pet.); Simonsen v. State, 662 S.W.2d 607, 612 (Tex.App. — Houston [14th Dist.] 1983, no pet.); Thomas v. State, 646 S.W.2d 565, 566-67 (Tex.App. — Houston [1st Dist.] 1982, no pet.); Johnson v. State, 635 S.W.2d 564, 566 (Tex.App. — Houston [14th Dist.] 1982, no pet.). This assumption would remain valid even if appellant's evidence on the mistake of 714 S.W.2d at 143; Bohn v. State, 651 S.W.2d 274, 275 (Tex.App. — Dallas 1983, no pet.).
error. Lynch v. State, 643 S.W.2d at 738; Bonner v. State, 426 S.W.2d 869, 871 (Tex.Crim.App. 1968); See Abram v. State, 700 S.W.2d 708, 709 (Tex.App. — Houston [14th Dist.] 1985, pet. ref'd); see also Simonsen v. State, 662 S.W.2d 607, 611-612 (Tex.App. — Houston [14th Dist.] 1983, pet. ref'd). The State cites Johnson v. State, 635 S.W.2d 564 (Tex.App. — Houston [14th Dist.] 1982, no pet.) for the proposition that knowledge of true ownership is irrelevant; however, we find the facts in Johnson distinguishable from those of the present case.
It is our opinion that the state exercised due diligence in attempting to obtain the presence of appellant for trial during the period from May 26, 1983, through August 24, 1983. See also Simonsen v. State, 662 S.W.2d 607 (Tex.App. — Houston [14th Dist.] 1983, pet. ref'd). From August 25, 1983, until February 3, 1984, appellant was detained in New Jersey for trial on other criminal charges.