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**
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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
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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
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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.)
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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
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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.
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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.
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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.
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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
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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,
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(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.
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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.
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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
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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
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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
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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.
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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
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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