PD-1621&1622-15 PD-1621&1622-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/15/2015 7:29:43 AM Accepted 12/15/2015 4:18:26 PM ABEL ACOSTA IN THE COURT OF CRIMINAL APPEALS CLERK FOR THE STATE OF TEXAS
VIKRAM S. CHAUHAN, APPELLANT
V. COA NOS. 02-14-00252-CR 02-14-00253-CR TRIAL COURT NOS. 1248464D 1248466D THE STATE OF TEXAS, APPELLEE
APPEALED FROM CAUSE NUMBERS 1248464D AND 1248466D, IN THE CRIMINAL DISTRICT COURT NUMBER ONE, TARRANT COUNTY, TEXAS; THE HONORABLE ELIZABETH BEACH, JUDGE PRESIDING.
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
WILLIAM H. "BILL" RAY December 15, 2015 TEXAS BAR CARD NO. 16608700 ATTORNEY FOR APPELLANT
LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C. 512 MAIN STREET, STE. 308 FORT WORTH, TEXAS 76102 (817) 698-9090 (817) 698-9092, FAX bill@billraylawyer.com
***ORAL ARGUMENT IS NOT REQUESTED**
PETITION FOR DISCRETIONARY REVIEW, PAGE 1 IDENTITY OF PARTIES AND COUNSEL
VIKRAM S. CHAUHAN APPELLANT c\o Texas Dept. of Criminal Justice, Institutional Division, Huntsville, Texas
HONORABLE BRIAN WILLETT ATTORNEY FOR APPELLANT AT TRIAL
HONORABLE WILLIAM H. RAY ATTORNEY FOR APPELLANT 512 Main Street, Ste. 308 ON APPEAL ONLY Ft. Worth, Texas 76102
HONORABLE SHAREN WILSON CRIMINAL DISTRICT ATTORNEY 401 W. Belknap Street TARRANT COUNTY, TEXAS Fort Worth, Texas 76102
HONORABLE SAM WILLIAMS ASSISTANT CRIMINAL 401 W. Belknap Street DISTRICT ATTORNEY Fort Worth, Texas 76102 TARRANT COUNTY, TEXAS
HONORABLE SARAH BRUNER ASSISTANT CRIMINAL 401 W. Belknap Street DISTRICT ATTORNEY Fort Worth, Texas 76102 TARRANT COUNTY, TEXAS
HONORABLE ELIZABETH BEACH JUDGE, CRIMINAL DISTRICT 401 W. Belknap Street COURT NUMBER ONE Fort Worth, Texas 76102 TARRANT COUNTY, TEXAS
HONORABLE LISA McMINN STATE PROSECUTING P.O. Box 13046 ATTORNEY Austin, Texas 78711
PETITION FOR DISCRETIONARY REVIEW, PAGE 2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
INDEX OF AUTHORITIES 4
STATEMENT CONCERNING ORAL ARGUMENT 6
STATEMENT OF THE CASE 6
STATEMENT OF THE PROCEDURAL HISTORY 7
GROUNDS FOR REVIEW
GROUND FOR REVIEW NUMBER ONE 8
THE TRIAL COURT ERRONEOUSLY ALLOWED APPELLANT TO BE TRIED IN VIOLATION OF THE INTERSTATE AGREEMENT ON DETAINERS ACT, ART. 51.14, CODE OF CRIMINAL PROCEDURE
GROUND FOR REVIEW NUMBER TWO 13
TRIAL COUNSEL WAS INEFFECTIVE FOR NOT URGING SUBSTANTIAL COMPLIANCE WITH THE INTERSTATE AGREEMENT ON DETAINERS
PRAYER 17
CERTIFICATE OF SERVICE 17
CERTIFICATE OF COMPLIANCE 18
PETITION FOR DISCRETIONARY REVIEW, PAGE 3 INDEX OF AUTHORITIES Cases Page
Birdwell v. Skeen, 983 F.2d 1331 (5th Cir.1993) 9
Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App. 1984) 14
Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 3403, 9 87 L.Ed.2d 516 (1985)
Cuyler v. Adams, 449 U.S. 433, 442, 101 S.Ct. 703, 709, 9 66 L.Ed.2d 641 (1981)
Ex Parte Felton, 815 S.W.2d 733, 735 (Tex.Crim.App. 1991) 14
Ex parte Menchaca, 854 S.W.2d at 131 14
Ex Parte Scott, 581 S.W.2d 181, 182 (Tex.Crim.App. 1979) 13
Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993) 9
Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984) 15
Jackson v. State, 766 S.W.2d 504, 508 (Tex.Crim.App. 1985) 14
Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App. 1988) 14
Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) 15
Kirvin V. State 394 S.W.3d 550, at 555 (Tex.App.–Dallas 2011, no pet.) 9
McFarland v. State, 928 S.W.2d at 500 13
Murray v. Carrier, 106 S.Ct. 2639, 2649(1986) 14
State vs. Chesnut, No. 06-13-00107-CR, (Tex.App.– Tyler, February 12, 10 2014, no pet.)
PETITION FOR DISCRETIONARY REVIEW, PAGE 4 State v. Powell, 971 S.W.2d 577 (Tex.App.–Dallas 1998, no pet.) 11
Strickland v. Washington, 446 U.S. 668 (1984) 13
United States v. Cronic, 104 S.Ct. 2039, 2046 n. 20 (1984) 14
United States v. Hall, 974 F2d 1201 (9th Cir. 1992) 12
Walker v. State, 201 S.W.23d 841 (Tex.App.–Waco 2006, no pet) 11
Statutes
Article 51.14, Code of Criminal Procedure 8
Interstate Agreement of Detainers Act 8
Title 18, U.S.C, Appendix. 8
PETITION FOR DISCRETIONARY REVIEW, PAGE 5 STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not necessary in this case.
STATEMENT OF THE CASE
This is an appeal from two felony convictions for the offenses of Aggravated
Robbery with a Deadly Weapon. Appellant was charged in two indictments with
the offenses of Aggravated Robbery with a Deadly Weapon. CR-7 in both cases.
The cases arose out of the same transaction and were tried at the same time.
The jury found Appellant guilty in each case. CR, Pages 180-185
[1248466D], Pages 188-193 [1248464D]; RR-5, Pages 103-104.
Appellant elected for the jury to assess punishment. The jury set punishment
at twenty years in the Institutional Division of the Texas Department of Criminal
Justice in each case, with no fine. CR, Pages 180-185 [1248466D], Pages 188-193
[1248464D]; RR-6, Pages 30-33.
On direct appeal, Appellant presented two points of error, which alleged: (1)
The trial court erroneously denied Appellant’s request to have his cases resolved
within 180 days after notice to the court and State, in violation of the Interstate
Agreement on Detainers Act; and (2) Appellant received ineffective assistance of
counsel in that trial counsel erroneously refused to present Appellant’s IADA
request.
PETITION FOR DISCRETIONARY REVIEW, PAGE 6 On direct appeal, the Court of Appeals for the Second Appellate District in
Fort Worth affirmed Appellant’s conviction. The opinion was not designated for
publication.
Appellant timely filed a motion for rehearing in the Court of Appeals, which
was denied.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
Appellant was sentenced on June 25, 2014. Notice of Appeal was timely
filed. Appellant timely filed his brief in the Court of Appeals on February 6, 2015.
The State timely filed its brief on May 15, 2015.
The case was submitted to the Court of Appeals, with oral argument, on
September 1, 2015. The Court of Appeals affirmed Appellant’s conviction on
October 29, 2015. That opinion is not designated for publication.
Appellant timely filed a motion for rehearing, which was denied by the
Court of Appeals on November 25, 2015.
This Petition for Discretionary Review is timely filed.
PETITION FOR DISCRETIONARY REVIEW, PAGE 7 GROUND FOR REVIEW NUMBER ONE
THE TRIAL COURT ERRONEOUSLY ALLOWED APPELLANT TO BE TRIED IN VIOLATION OF THE INTERSTATE AGREEMENT ON DETAINERS ACT, ART. 51.14, CODE OF CRIMINAL PROCEDURE (IADA)
The Defendant was tried in violation of the Interstate Agreement of
Detainers Act, Article 51.14, Code of Criminal Procedure also codified at Title
18, U.S.C. Appendix.
Article III of the Act, “IADA”, which is the relevant portion of the statute when the prisoner is the initiator of the request, states as follows: (a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have cause to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint; provide that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decision of the state parole agency relating to the prisoner.
(b) The written notice an request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prison to the warden, commissioner of corrections, or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
Article IX of the act states in relevant part: This agreement shall be liberally construed so as to effectuate its purposes.
PETITION FOR DISCRETIONARY REVIEW, PAGE 8 The IADA is a congressionally sanctioned compact between the United
States and the states, including Texas. The IADA may be invoked by either the
prisoner or the State. Kirvin V. State 394 S.W.3d 550, at 555 (Tex.App.–Dallas
2011, no pet.) The IADA’s interpretation is a question of federal law. Cuyler v.
Adams, 449 U.S. 433, 442, 101 S.Ct. 703, 709, 66 L.Ed.2d 641 (1981). Birdwell v.
Skeen, 983 F.2d 1331 (5th Cir.1993). Thus, the Court must use Federal, not Texas
rules to interpret the Agreement. Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct.
3401, 3403, 87 L.Ed.2d 516 (1985). The language of the IADA reveals that the
180-day period does not commence until the prisoner has caused the proper
officials to receive the request; that is, when the prosecutor has obtained the
request. This is particularly so, since the key word in the 180-day provision is
"delivered," not "sent," as used in subsection b, or "executed." Birdwell, supra, at
1337; See Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406
(1993).
Appellant sent all the required documents pursuant to Article III of the
IADA directly to the trial court and State. Appellant, in the Motion for New Trial
hearing, showed the trial court written notice of his place of imprisonment, the
only certificate Appellant could obtain from the prison authority stating the term of
commitment under which he was being held, the time served, the time remaining to
PETITION FOR DISCRETIONARY REVIEW, PAGE 9 be served, the amount of good time earned, and the time of parole eligibility.
(Defendant’s Exhibit 1 and 15, RR-Supp-2, Pages 9-10 and 32-45; RR-Supp-3,
Pages 25-28 and 101-104). Both the trial court and the Tarrant County Criminal
District Attorney received these items well over 180 days before Appellant was
tried. This fact is not in dispute.
Specifically, Appellant’s Request for Disposition of Indictments,
Information, or Complaints in Accordance to Article III of the Interstate
Agreement on Detainers, with all the required exhibits, was filed over 180 days
before the State even started its own process to obtain Appellant’s presence for
trial. The State was aware of Appellant’s request on July 9, 2013, at 8:36 a.m,
when the document was viewed by an employee of the Criminal District
Attorney’s Office. This fact was stipulated to by the State. Defendant’s Exhibit 7,
RR-Supp-3, Page 83, RR-Supp-2, Page 12. In this case the time from when the
court and district attorney knew of the request (delivery date as indicated by the
Tarrant County District Clerk file stamp of July 1, 2013, viewed by District
Attorney employee on July 9, 2013) was at least eleven months, well over 180 days
before trial.
The Defendant can notify the trial court directly of this request and does not
have to go through the prison system. State vs. Chesnut, No. 06-13-00107-CR,
PETITION FOR DISCRETIONARY REVIEW, PAGE 10 (Tex.App.– Tyler, February 12, 2014, no pet.); State v. Powell, 971 S.W.2d 577
(Tex.App.–Dallas 1998, no pet.); Walker v. State, 201 S.W.23d 841
(Tex.App.–Waco 2006, no pet).
The Court of Appeals held that Appellant’s request was improper because it
did not request a “final disposition” in the prayer of the document, (although the
title of Appellant’s third request of five pro se motions on this subject filed did in
fact request a “final disposition”), and did not have a statutorily required
certification from the warden, Appellant had failed to properly put the trial court
and state on notice. Opinion, at pages, 4-6.
Only when the notice is delivered by the prisoner to the warden of his
facility who in turn notifies the trial court and prosecutor does it have to be sent
certified mail. See Art. III (a), IADA. The State in its responses and arguments to
the trial court, and its Proposed Findings of Fact, which were adopted by the trial
court, relied incorrectly on the assertion that Appellant was required to send items
to the court and then again to the prosecutor via certified mail. CR, Page 365
[1248464D]; CR, Page 360 [1248466D]. However, the IADA does not state that.
Further, the items were actually sent certified mail (Defendant’s Exhibits 5 and 6,
RR-Supp-2, Pages 11-12, RR-Supp-3, Pages 82-83) and received, filed, and
provided to the State, who reviewed them.
PETITION FOR DISCRETIONARY REVIEW, PAGE 11 The State presented evidence that it had brought Appellant to trial pursuant
to Article IV of the IADA. While this is true, the problem is that the time had
already run on Appellant’s Art. III, IADA request.
Appellant submits that the trial court’s decision to deny his Motion for New
Trial was clearly erroneous. See U.S. vs. Hall, 974 F2d 1201 (9th Cir. 1992).
There was no circumstance to justify the length of the delay, and the delay
did not occur in any form due to any neglect or act of the Defendant. Appellant
requested counsel and was not afforded counsel for over seven months.
This Court has not directly reviewed the process, specifically, whether the
receipt of the request by the State and trial court, regardless of its naming, is
sufficient to trigger the IADA, or considered the requirement which directs that the
IADA be liberally construed to effect its purposes as required by Art. IX, IADA,
which was presented to both the trial court and Court of Appeals. RR-Supp-2,
Pages 124-125. Appellant submits that this is the first time all these issues are
before this Court, and requests that this Honorable Court hear his Petition for
Discretionary Review.
Appellant respectfully requests that this Court reverse the decision of the
trial court and vacate the judgments of the trial court and Court of Appeals and
order prosecution barred pursuant to the Interstate Agreement on Detainers Act.
PETITION FOR DISCRETIONARY REVIEW, PAGE 12 GROUND FOR REVIEW NUMBER TWO
TRIAL COUNSEL WAS INEFFECTIVE FOR NOT URGING APPELLANT’S REQUEST FOR DISMISSAL OF CHARGES PURSUANT TO THE INTERSTATE AGREEMENT ON DETAINERS ACT (IADA)
In Strickland v. Washington, 446 U.S. 668, 104 S.Ct. 2052, 2065 (1984),
the U.S. Supreme Court held that in ineffective assistance of counsel cases, the
defendant must prove that his trial counsel’s representation was deficient, and the
deficient performance was so serious that it deprive him of a fair trial. Id., at 687.
Counsel’s representation is deficient if it falls below an objective standard of
reasonableness. The Defendant must show a reasonable probability but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.
The assessment of whether a defendant received effective assistance of
counsel must be made according to the facts of each case. Ex parte Scott, 581
S.W.2d 181, 182 (Tex.Crim.App. 1979). Any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, at 500
(Tex.Crim.App. 1996). Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim. Id. Absent
both showings an appellate court cannot conclude the conviction resulted from a
PETITION FOR DISCRETIONARY REVIEW, PAGE 13 breakdown in the adversarial process that renders the result unreliable. Ex parte
Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App. 1993). Appellant bears the
burden of proving by a preponderance of the evidence that counsel was ineffective.
Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App. 1984). An appellate court
looks to the totality of the representation and the particular circumstances of each
case in evaluating the effectiveness of counsel. Ex Parte Felton, 815 S.W.2d 733,
735 (Tex.Crim.App. 1991). It is possible that a single egregious error of omission
or commission by appellant's counsel constitutes ineffective assistance. Jackson
v. State, 766 S.W.2d 504, 508 (Tex.Crim.App. 1985) (failure of trial counsel to
advise appellant that judge should assess punishment amounted to ineffective
assistance of counsel) (modified on other grounds on remand from U.S. Supreme
Court, Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App. 1988)). See also Ex
parte Felton, 815 S.W.2d at 735 (failure to challenge a void prior conviction used
to enhance punishment rendered counsel ineffective). This position finds support in
opinions of the United States Supreme Court, which has also held that a single
egregious error can sufficiently demonstrate ineffective assistance of counsel.
Murray v. Carrier, 106 S.Ct. 2639, 2649(1986); United States v. Cronic, 104 S.Ct.
2039, 2046 n. 20 (1984). When handed the task of determining the validity of a
defendant's claim of ineffective assistance of counsel, any judicial review must be
PETITION FOR DISCRETIONARY REVIEW, PAGE 14 highly deferential to trial counsel and avoid the deleterious effects of hindsight.
Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984). There is a strong
presumption that counsel's conduct fell within the wide range of reasonable
professional assistance. Strickland v. Washington, supra; Jackson v. State, 877
S.W.2d 768, 771 (Tex.Crim.App. 1994).
Trial counsel, Brian Willett, refused to present the matter to the court. At a
hearing on June 24, 2014, the day of trial, the trial court conducted a hearing and
the Defendant voiced his request for trial counsel to present and argue all the
aforementioned motions to the court. Mr. Willett stated to the trial court that in
his opinion, the motions and requests the Defendant made were without merit.
Defense Exhibit 8, (Motion for New Trial hearing.) Had trial counsel presented
this matter to the trial court, the Defendant submits that the outcome would have
been different. Specifically, the trial court would have dismissed the Defendant’s
cases.
The result might have been different if he had presented Appellant’s
requests, according to trial counsel. Trial counsel thought Appellant had to send
the documents certified mail. There is no requirement, but even so, Appellant did
send the documents certified. If trial counsel had known that Article 51.14, C.C.P.
was required to be interpreted liberally, substantial compliance could have been a
PETITION FOR DISCRETIONARY REVIEW, PAGE 15 viable option, and trial counsel admitted that could have changed his position in
the matter and how he proceeded in handling Appellant’s Article 51.14 requests.
RR-Supp-2, Pages 71-72.
The outcome would have been different if trial counsel had presented the
claims made by Appellant.
The Court of Appeals held that since Appellant’s first point of error was not
meritorious, the ineffectiveness of counsel claim for not presenting Appellant’s
IADA point at trial was moot. Opinion at pages 6-7. Appellant submits that
should this Court find the first point of error meritorious, that this Court either
review his claim of ineffectiveness or remand it to the Court of Appeals for
consideration.
For these reasons, Appellant submits that his trial counsel provided
ineffective assistance of counsel.
PETITION FOR DISCRETIONARY REVIEW, PAGE 16 PRAYER FOR RELIEF
Appellant Prays that this Honorable Court vacate his convictions and order
the prosecution dismissed, and find trial counsel ineffective for not presenting his
arguments, or alternatively, remand the causes to the Court of Appeals for
consideration of Appellant’s second ground for review.
RESPECTFULLY SUBMITTED,
/S/ WILLIAM H. “BILL” RAY WILLIAM H. "BILL" RAY TEXAS BAR CARD NO. 16608700 ATTORNEY FOR APPELLANT
LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C. 512 MAIN STREET, STE. 308 FORT WORTH, TEXAS 76102 (817) 698-9090 (817) 698-9092, FAX bill@billraylawyer.com
CERTIFICATE OF SERVICE
I certify that a true copy of Appellant's Petition for Discretionary Review was delivered via the electronic filing system to the office of Ms. Sharen Wilson, Tarrant County Criminal District Attorney, on the date of this document’s filing. I certify that a true copy of Appellant's Petition for Discretionary Review was placed in the United States Mail addressed to Appellant, in the Texas Department of Corrections, on the date of this document’s filing. I certify that a true copy of Appellant's Petition for Discretionary Review was delivered via the electronic filing system to the State’s Prosecuting Attorney, at P.O. Box 13046, on the date of this document’s filing. /S/ WILLIAM H. “BILL” RAY WILLIAM H. “BILL” RAY
PETITION FOR DISCRETIONARY REVIEW, PAGE 17 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4 i3, of the Texas Rules of Appellate Procedure, I certify that this Petition for Discretionary Review filed in this case, has 3299 words contained therein. This count was obtained via the WordPerfect computer program. /S/ WILLIAM H. "BILL" RAY WILLIAM H. “BILL” RAY
PETITION FOR DISCRETIONARY REVIEW, PAGE 18