ACCEPTED 05-14-01460-CR FIFTH COURT OF APPEALS DALLAS, TEXAS 6/1/2015 11:17:29 AM LISA MATZ CLERK
5th Court of Appeals FILED: 6/4/2015 Lisa Matz, Clerk The State Requests Oral Argument Only If Appellant Argues
No. 05-14-01460-CR FILED IN - 5th COURT OF--APPEALS - ---- DALLAS, - ---TEXAS IN THE COURT OF APPEALS - - ---- MH ------ 6/1/2015- 11:17:29 - ID -- AM ---- VO ------ FOR THE FIFTH DISTRICT OF TEXAS LISA----MATZ - - -Clerk AT DALLAS - - -
GUADALUPE MARTINEZ, RECEIVED IN Appellant 5th COURT OF APPEALS DALLAS, TEXAS 6/1/2015 11:17:29 AM vs. LISA MATZ Clerk THE STATE OF TEXAS, Appellee
On appeal from the 283rd Judicial District Court of Dallas County In Cause No. F06-68467
STATE’S BRIEF
Counsel of Record:
SUSAN HAWK PATRICIA POPPOFF NOBLE CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO. 15051250 FRANK CROWLEY COURTS BLDG 133 N. RIVERFRONT BLVD,LB-19 DALLAS, TEXAS 75207-4399 (214) 653-3634 pnoble@dallascounty.org
Attorneys for the State of Texas TABLE OF CONTENTS
INDEX OF AUTHORITIES…………………………………………………………..iii
SUMMARY OF ARGUMENT…………………………………………………………1
ARGUMENT…………………………………………………………………………….1
RESPONSE TO POINT ONE…………………………………………………………1 The trial court did not err by denying the motion to dismiss the indictment on the ground that Appellant’s rights under Article III of the Interstate Agreement on Detainers Act had been violated.
RESPONSE TO POINT TWO…………………………………………………………1 The trial court did not err by denying the motion to dismiss the indictment on the ground that Appellant’s rights under Article IV of the Interstate Agreement on Detainers Act had been violated.
RESPONSE TO POINT THREE…………………………………………………….23 The evidence is sufficient to sustain Appellant’s conviction.
RESPONSES TO POINT 4…………………………………………………………..32 Appellant failed to file a plea to jurisdiction in the 283rd Judicial District Court, and he waived Point 4’s complaint.
The 283rd District Court which tried Appellant’s cases did not lack jurisdiction due to an improper transfer to its docket.
PRAYER…………………………………………………………………………………35
CERTIFICATE OF SERVICE AND WORD COUNT…………………………….36
ii INDEX OF AUTHORITIES
Cases
Alabama v. Bozeman, 533 U.S. 146, 121 S.Ct. 2079, 150 L.Ed. 2d 188 (2001) ............................. 8
Bell v. State, 768 S.W.2d 790 (Tex. App. – Houston [14th Dist.] 1989, pet. ref’d) ....... 20
Bourque v. State, 156 S.W.3d 675 (Tex. App. – Dallas 2005, pet. ref’d) .................................. 35
Bryant v. State, 819 S.W.2d 927 (Tex. App. – Houston [14th Dist.] 1991, pet. ref’d) ....... 15
Camp v. United States, 587 F.2d 397 (8th Cir.1978) .................................................................................. 20
Cooney v. Fulcomer, 886 F.2d 41 (3d Cir. 1989) .................................................................................. 20
Cuyler v. Adams, 449 U.S. 433, 101 S. Ct. 703, 66 L.Ed.2d 641 (1981) .................................. 8
Dallas County Dist. Attorney v. Doe, 969 S.W.2d 537 (Tex. App. – Dallas 1998, no pet.) ..................................... 34
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) ................................................... 28, 29, 30
Ex parte Edone, 740 S.W.2d 446 (Tex. Crim. App. 1987) ......................................................... 34
Ex parte Saylor, 734 S.W.2d 55 (Tex. App. – Houston [1st Dist.] 1987, no pet.) ................ 19
Gray v. Benson, 608 F.2d 825 (10th Cir. 1979) ............................................................................. 20
Gullatt v. State, Nos. 05-13-01515-CR & 05-13-01516-CR, 2014 Tex. App. LEXIS 13832 (Tex. App. – Dallas Dec. 29, 2014, no pet.) (mem. op., not designated for publication) ................................................................................... 33
iii Huffines v. State, 646 S.W.2d 612 (Tex. App. – Dallas 1983, pet. ref’d) .................................. 18
Hultin v. State, 351 S.W.2d 248 (Tex. Crim. App. 1961) .......................................................... 34
In re Lopez, No. 13-11-00110-CR, 2011 Tex. App. LEXIS 1811 (Tex. App. – Corpus Christi Mar. 9, 2011, no pet.) (mem. op., not designated for publication) ................................................................................................................ 11
Ives v. State, Nos. 05-13-00615-CR & 05-13-00616-CR, 2014 Tex. App. LEXIS 3749 (Tex. App. – Dallas Mar. 31, 2014,no pet.) (mem. op., not designated for publication) ................................................................................................................ 33
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ................................. 28
Johnson v. State, 176 S.W.3d 74 (Tex. App. – Houston [1st Dist.] 2004, pet. ref’d) ............. 31
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .......................................................... 28
Lemasurier v. State, 91 S.W.3d 897 (Tex. App.- Fort Worth 2002, pet. ref’d) ............................. 33
Lindley v. State, 33 S.W.3d 926 (Tex. App. – Amarillo 2000, pet. ref’d) .................................. 8
Marshall v. State, 210 S.W.3d 618 (Tex. Crim. App. 2006) .................................................... 29, 30
Mayes v. State, Nos. 03-10-00101-CR & 03-10-00102-CR, 2011 Tex. App. LEXIS 2075 (Tex. App. – Austin Mar. 18, 2011, no pet.)(mem. op., not designated for publication) ......................................................................................................... 31
McNulty v. State, No. 05-02-00635-CR, 2003 Tex. App. LEXIS 1802 (Tex. App. – Dallas Feb. 28, 2003, no pet.) (not designated for publication) ............................ 11
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) ................................................ 28 iv Morganfield v. State, 919 S.W.2d 731 (Tex. App. – San Antonio 1996, no pet.).......................... 17
New York v. Hill. 528 U.S. 110, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) ........... 20, 21, 22, 33
Petrick v. State, 832 S.W.2d 767 (Tex. App. – Houston [1st Dist.] 1992, pet. ref’d), overruled in part as stated on other ground, Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012) .................................... 21
Rexroad v. State, Nos. 05-99-01991-CR & 05-99-02004-CR, 2000 Tex. App. LEXIS 7231 (Tex. App. – Dallas Oct. 26, 2000, pet. ref’d) (not designated for publication) ................................................................................................................ 21
Santos v. State, 116 S.W.3d 447 (Tex. App. – Houston [14th Dist.] 2003, pet. ref’d) ....... 31
Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) ............................ 12, 13
Snyder v. State, No. 08-04-00246-CR, 2005 Tex. App. LEXIS 7750 (Tex. App. – El Paso Sept. 22, 2005, no pet.) (not designated for publication) ........................... 16
State v. Powell, 971 S.W.2d 577 (Tex. App. – Dallas 1998, no pet.) .................................... 21
State v. Votta, 299 S.W.3d 130 (Tex. Crim. App. 2009) ..................................................... 8, 14
United States v. Black, 609 F.2d 1330 (9th Cir. 1979) .............................................................................. 20
United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ........................... 20
United States v. Scallion, 548 F.2d 1168 (5th Cir. 1977) .............................................................................. 20
Statutes
Tex. Code Crim. Proc. Ann. Art. 51.14 (West 2006) ............................ 2, 8, 9, 11
Tex. Code Crim. Proc. Ann. art. 51.14, Art. III(a), (c) ............................... passim v Tex. Code Crim. Proc. Ann. art. 51.14, Art. IV(c) ............................ 17, 18, 21, 23
Tex. Code Crim. Proc. Ann. arts. 20.09, 20.19 (West 2005) ......................... 34
Tex. Code Crim. Proc. Ann., art. 51.14, Art. III(b) ............................................ 15
Tex. Gov’t Code Ann. §74.093 (West 2013) ......................................................... 34
vi TO THE HONORABLE COURT OF APPEALS:
The State of Texas submits this brief in reply to the brief of
Appellant.
SUMMARY OF ARGUMENT
Appellant failed to demonstrate that his rights under Articles
III and IV of the Interstate Agreement on Detainers Act were
violated. Thus, the trial court did not abuse its discretion by
overruling the motion to dismiss the indictment. Based on the
eyewitness testimony and other circumstances surrounding the
offense, the jury had sufficient credible evidence to support the
conclusion that Appellant was correctly identified as the person
who committed the offense. The trial court had jurisdiction of the
instant case.
ARGUMENT
RESPONSE TO POINT ONE The trial court did not err by denying the motion to dismiss the indictment on the ground that Appellant’s rights under Article III of the Interstate Agreement on Detainers Act had been violated. RESPONSE TO POINT TWO The trial court did not err by denying the motion to dismiss the indictment on the ground that Appellant’s rights under Article IV of the Interstate Agreement on Detainers Act had been violated.
1 Appellant’s Contentions
In two related points, Appellant contends that the indictment
in the present case should have been dismissed because of the
State’s failure to follow Articles III and IV of the Interstate
Agreement on Detainers Act (hereinafter IADA) found in Tex. Code
Crim. Proc. Ann. Art. 51.14 (West 2006). Appellant’s first point
alleges that upon his mailing a request for a speedy trial, the State
failed to bring him to trial within 180 days, as required under
Article III of the IADA, and, therefore, the trial court erred by failing
to dismiss the indictment. Appellant’s brief at 33-36. In his second
point, Appellant contends that the trial court erred by failing to
dismiss his indictment under Article IV of the IADA upon his
showing that the State failed to bring him to trial within 120 days of
his transfer from Oklahoma to the Dallas County jail. Appellant’s
brief at 36-39.
Pertinent Facts
On September 12, 2006, Appellant was indicted in Cause
Numbers F06-68467 and F06-68468 for committing two
aggravated robberies with a deadly weapon against two women in
Dallas County, Texas on July 20, 2006. (CR: 10-11).
2 On July 22, 2009, Dallas County Sheriff Lupe Valdez informed
a Lawton Oklahoma correctional center that she had been advised
that Appellant was incarcerated there and she requested that a
detainer be placed against Appellant, who had been indicted in two
causes for aggravated robbery with a deadly weapon in Dallas,
Texas. See Defendant’s Exhibit 2 at RR4: 21.
On April 23, 2013, Appellant, representing himself, mailed a
letter addressed to the “Clerk of the Court” at the Frank Crowley
Courts Building in Dallas, Texas informing the clerk that there was
an outstanding warrant for his arrest for two aggravated robberies
in Dallas County. Three copies of a motion “for a speedy trial/or
dismissal of charges” were attached to his letter. Appellant
requested that the clerk return to Appellant a stamped copy
showing that his motion was filed in a court. Appellant addressed
the motion to the “District Court of Dallas County State of Texas.”
The motion states that Appellant is incarcerated in a facility in
McAlester, Oklahoma. It states that he is the subject of an
outstanding arrest warrant in Dallas County. The motion requests
“a fast and speedy trial in accordance with Article I, Section 10 of
the Texas Constitution,” or in the alternative, to order that the
3 charges pending in the Dallas County cases “be dismissed and the
detainer warrent [sic] be withdrawn,” citing Smith v. Hooey, 393
U.S. 374. See Defendant’s Exhibit 2 at RR4: 21.
On December 3, 2013, Assistant District Attorney Christopher
Pryor, who tried this case, filed a “request for temporary custody”
informing the warden at the Oklahoma correctional facility where
Appellant was incarcerated that he was charged by indictment with
aggravated robbery and requesting that Pryor be given temporary
custody of Appellant under the IADA until he is tried in that cause.
The request is signed by Judge Rick Magnis who presided over the
trial in the 283rd Judicial District Court. See Defendant’s Exhibit 1
at RR4: 20.
On March 7, 2014, Appellant was transferred to the Dallas
County Jail. See Defendant’s Exhibit 1 at RR4: 20.
On March 10, 2014, the Honorable Rick Magnis, presiding
judge of the 283rd Judicial District Court having jurisdiction of the
pending aggravated robbery cases for which Appellant was indicted,
appointed Mr. L. Patrick Davis to represent Appellant. See Motion to
Supplement Clerk’s Record.
4 On March 28, 2014, Mr. Davis signed an agreement to reset
the two aggravated robbery cases to April 4, 2014. Thereafter,
Davis signed 5 additional reset agreements which pushed back the
final trial date to June 6, 2014. See Defendant’s Exhibit 3 at RR4:
22.
On June 9, 2014, Judge Rick Magnis appointed Mr. Allan
Fishburn to represent Appellant in the aggravated robbery cases.
See Motion to Supplement Clerk’s Record.
On June 10, 2014, Mr. Fishburn signed an agreement to reset
the robbery cases for trial on November 3, 2014. See Motion to
On October 24, 2014, Appellant, through his new attorney
Allan Fishburn, filed a motion to dismiss the indictments, alleging
that “the prosecution has failed to comply with the requirements of
Tex. Code Crim. Proc. Ann. Article 51.14.” (CR: 46).
On October 31, 2014, the trial court held a hearing on the
motion to dismiss filed by Mr. Fishburn who stated at the
commencement of the hearing: “Today we are asking the Court to
rule on our second motion for speedy trial, having abandoned the
first, the second one being related to the Interstate Agreement on
5 Detainers, Texas Code of Criminal Procedure Article 51.14 and
that’s before the Court.” (RR4: 4). Although counsel specifically
stated that Appellant’s earlier pro se motion to dismiss had been
abandoned and was not before the court in the hearing, he
nevertheless relied on the pro se motion to argue that the State
violated Article III of the statute by not trying Appellant within 180
days of his mailing notice of his demand for a speedy trial to the
Clerk of the Court at the Frank Crowley Courts Building in Dallas,
Texas. Mr. Fishburn further argued that Appellant was not
required to comply with the additional statutory notice
requirements of Article III, subsection (a) to trigger the running of
the 180-day time limit to bring him to trial. The State disagreed
and argued to the court that Appellant was entitled to represent
himself, but his pro se motion was insufficient to support the
allegation of an Article III violation. The prosecutor argued that if
Appellant made a request on his own for a speedy trial under Article
III of the IADA, he had to comply with the statutory notice
requirements of Article III, subsection (a). (RR4: 6-10).
At the hearing, Mr. Fishburn also asserted that the State
violated the IADA by not trying Appellant within 120 days of the
6 date he was brought back to Texas as required by Article IV. He
claimed that the 120 days expired on June 1, 2014. (RR4: 14).
Counsel introduced and had admitted Defendant’s Exhibits Nos. 1,
2, and 3 to support his claims. (RR4: 4, 22).
The trial court examined Exhibit 3, and found that Mr. Davis,
Appellant’s first attorney, signed a continuous series of pass slips
agreeing to reset the trial of the cases. Mr. Fishburn was wrong
about the date on which the 120 days expired. Davis’ last agreed
setting for the trial was June 6, 2014. The court also noted that
was about the time that Mr. Fishburn was appointed. (RR4: 16-17).
The trial court was informed that 120 days from Davis’ final agreed
reset date for trial, June 6, 2014, was September 13, 2014. (RR4:
17). It may be assumed that the court was aware of, although it
was not mentioned in the hearing, an additional pass slip signed by
Mr. Fishburn on June 10, 2014, a day after he was appointed to
represent Appellant, agreeing to reset the trial date to November 3,
2014. See Motion to Supplement Clerk’s Record.
The motion to dismiss the indictments was denied. (RR4: 18).
Principles of Law, Application, and Conclusion
Article III Claim Properly Overruled
7 The IADA is a congressionally-sanctioned compact between
the United States and the states. Cuyler v. Adams, 449 U.S. 433,
442, 101 S. Ct. 703, 66 L.Ed.2d 641 (1981). Texas has adopted the
IADA in Tex. Code Crim. Proc. Ann. art. 51.14 (West 2006). The
IADA 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).
Courts have strictly applied the provisions of the IADA.
Alabama v. Bozeman, 533 U.S. 146, 153, 121 S.Ct. 2079, 150 L.Ed.
2d 188 (2001). The burden rests on the prisoner to demonstrate
compliance with the procedural requirements of Article III in order
to benefit from its provisions. Lindley v. State, 33 S.W.3d 926, 930
(Tex. App. – Amarillo 2000, pet. ref’d)(finding where defendant knew
of the appointment of an attorney pro tem and still wished to
exercise his rights under the IADA, it became his duty to notify the
appropriate prosecuting officer, and since he failed to send his IADA
request to the appropriate officer, the attorney pro tem instead of
the clerk of the court and the District Attorney’s office, his rights
under the IADA were not violated).
8 Under the IADA, a prisoner may make a request for final
disposition of a pending case in another jurisdiction. If the
defendant properly makes the request for final disposition, he must
be tried for the offense within 180 days or the charge must be
dismissed with prejudice. Tex. Code Crim. Proc. Ann. art. 51.14,
Art. III(a), (c). To request final disposition under Article III, the
defendant must 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. Id. Article III(a). Appellant
contends that the only issue concerning the alleged violation of
Article III is whether his mailing his request for a speedy trial
means he “caused to be delivered” his request as the statute
requires. But that is not the only issue in determining the alleged
violation. Under Article III, a properly delivered request must be
accompanied by a certificate of the appropriate official having
custody of the prisoner stating the following: (1) the term of
commitment under which the prisoner is being held; (2) the time
already served; (3) the time remaining to be served on the sentence;
(4) the amount of good time earned; (5) the time of parole eligibility
9 of the prisoner; and (6) any decision of the state parole agency
relating to the prisoner. Id.
Appellant argues that the 180-day time limit of Article III
began to run when he mailed his letter and motion to the clerk of
the court in Dallas County because he did everything he must do
to satisfy the IADA requirement that he “caused to be delivered” his
request for transfer under Article III. Appellant’s brief at 35. But,
Appellant would have the court assume that the sufficiency of his
act of delivery equates with the sufficiency of the form of the request
under Article III. It does not.
The statute provides that the defendant can satisfy the
requirement for “sending” the written notice and request for final
disposition under Article III by giving it to the official having custody
of him, who must then forward it to the appropriate prosecuting
official and court via registered or certified mail. Id. Article III(b).
However, the defendant may send the request to the court and
prosecutor of the other jurisdiction himself, but if he does so, he is
responsible for seeing that the notice is sent in the form required by
the statute. See McNulty v. State, No. 05-02-00635-CR, 2003 Tex.
App. LEXIS 1802, at *5 (Tex. App. – Dallas Feb. 28, 2003, no pet.)
10 (not designated for publication)(Defendant argued that this letter to
the district attorney triggered the IADA, but the appellate court
found that although his letter specifically mentioned Article 51.14,
defendant failed to comply with the provisions of the IADA because
his letter was not mailed via registered or certified mail, return
receipt requested, defendant only sent his letter to the county
district attorney; thus, the letter was not delivered to the
prosecuting officer and the appropriate court of the prosecuting
officer’s jurisdiction, the letter was not accompanied by a certificate
from the appropriate officer having custody of defendant, the letter
failed to disclose information as required by subsection (a) of Article
III); In re Lopez, No. 13-11-00110-CR, 2011 Tex. App. LEXIS 1811,
at *8-9 (Tex. App. – Corpus Christi Mar. 9, 2011, no pet.) (mem. op.,
not designated for publication) (inmate who was presently
incarcerated in federal prison in South Carolina and had an
outstanding detainer from Texas claimed that he had filed a speedy
trial motion, which was not ruled on, and that the county district
attorney’s failure to comply with the IADA denied him the right to a
speedy trial, but the court denied mandamus relief as it could not
determine from the record whether the required procedure was
11 followed in transmitting the inmate’s documents to the trial court
and whether the trial court received all of the required
documentation under the statute, and under those circumstances,
the court could not conclude that the trial court abused its
discretion in failing to rule on the speedy trial motion).
In the hearing on defense counsel’s motion to dismiss,
counsel stated that the defense had abandoned Appellant’s earlier
pro se motion to dismiss, but he used the fact that Appellant had
made this request for a speedy trial to argue that this triggered the
time limitations of Article III. He asserts this position again on
appeal.
However, Appellant’s pro se motion does not refer to the IADA,
and it does not in any other way invoke his rights under the IADA.
The motion relies on the right to a speedy trial provided by the
Texas Constitution. In the alternative, Appellant requested that he
be relieved of a “detainer warrant.” Appellant cited Smith v. Hooey,
393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) for additional
authority to support his request. In Smith v. Hooey, a prisoner was
indicted in Texas on state charges while serving a sentence at a
federal penitentiary. For the next six years, the defendant made
12 repeated requests for a speedy trial but the Texas authorities did
nothing to advance the matter (even though they knew the
prisoner’s whereabouts). When the petitioner sought a dismissal,
the State asserted that it had no obligation to gain custody of the
defendant while he was imprisoned by another sovereign. The
Supreme Court disagreed. The Court held that when a defendant
demands a speedy trial, the Sixth Amendment right to a speedy
trial required the State to make a diligent, good faith effort to bring
him before a state court for trial even if another sovereign ultimately
might decline to grant such custody. Id. at 383. The Interstate
Agreement on Detainers, which obligates its signatories, upon
formal request, to release an inmate to stand trial in another
jurisdiction, did not enter into this decision. The federal government
did not become a party to that compact until after Smith v. Hooey
was decided. See 18 U.S.C., App. §2. Thus, neither Appellant’s
letter nor his motion requests a disposition of the indictments in
compliance with Article III of the IADA.
Even if Appellant’s motion could be understood to be a request
brought under the IADA provisions, Appellant was not entitled to a
dismissal of his cases for failure to comply with Article III because
13 he did not comply with the mandates of the IADA. At the hearing,
the State specifically contended that the provisions of Article III
were not triggered by the pro se request for a speedy trial because
Appellant failed to do the following, as required by the IADA: (1)
attach the statutorily mandated “certificate,” which must contain
Appellant’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. (RR4: 9). Tex. Code Crim. Proc. Ann.
art. 51.14, Art. III(a), (b); Votta, 299 S.W.3d at 135. Rather, the
motion merely contains information regarding Appellant’s
incarceration in Oklahoma and the cause numbers of the pending
Texas cases. At the hearing, and again on appeal, Appellant seems
to contend his compliance failures are merely technical, and his
failures should not preclude a dismissal. Appellant’s brief at 36
(stating Article III should be interpreted to mean that when the
prisoner’s act of transmission of the request is complete the 180
days begins to run). There’s no merit to this argument. See Bryant
v. State, 819 S.W.2d 927, 930-31 (Tex. App. – Houston [14th Dist.]
14 1991, pet. ref’d), where the court specifically held letters to the
court and prosecutor stating the prisoner’s desire for a speedy trial,
a final disposition, and dismissal were insufficient under the IADA,
and, therefore, the prisoner was not entitled to a dismissal because
the prisoner failed to include the statutorily required certificate or
the information that should have been included. By this point,
Appellant advocates the kind of exception the Bozeman Court
refused to accept in some form of less than absolute compliance
with the statute’s mandatory language. Article III(b) specifically
states the 180-day deadline 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. Tex. Code Crim. Proc. Ann. 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.
Because Appellant did not comply with the statutorily
mandated requirements of the IADA, the 180-day deadline never
commenced. Accordingly, because Appellant did not comply with
15 the IADA, the trial court did not err in denying his motion to
dismiss, and this Court should overrule Point One. See Snyder v.
State, No. 08-04-00246-CR, 2005 Tex. App. LEXIS 7750, at *1, 4
(Tex. App. – El Paso Sept. 22, 2005, no pet.) (not designated for
publication)(finding a prisoner may deliver his request directly to
the court and the prosecuting attorney, rather than to the warden;
however, when a prisoner takes it upon himself to deliver the
request for final disposition to the prosecutor and the court, he
must do so in the proper form and include the statutorily required
information, and overruling the complaint about the violation of the
statute).
Article IV Claim Properly Overruled
Article IV(c) of the IADA provides: In respect of any proceeding
made possible by this article, trial shall be commenced within 120
days of the arrival of the prisoner in the receiving state, but 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. Article V(c) provides that if a
person is not brought to trial within 120 days, the indictment must
be dismissed with prejudice. However, tolling of the 120-day period
16 occurs if the trial court grants a necessary or reasonable
continuance after a showing of good cause is made in open court,
with the defendant or his attorney present. Tex. Code Crim. Proc.
Ann. art. 51.14, Art. IV(c); Morganfield v. State, 919 S.W.2d 731,
733 (Tex. App. – San Antonio 1996, no pet.). In Morganfield, the
court concluded the length of the continuance can be subtracted
from the total number of days between the book-in date and the
first day of trial. Id. at 735.
Appellant makes the following argument that the continuances
reflected in this record do not toll the 120-day statutory period:
Appellant was booked into the Dallas County jail on March 7, 2014. At the hearing on the motion the [S]tate pointed out that several pass slips had been filed by Appellant after March 7, 2014. Appellant argued that none of those were executed by present counsel who did not pass the case but did set it for trial so as not to further delay disposition in the event the motion was denied. The State argues the passes tolled the statute, including the trial setting. Appellant is correct. The [t]rial setting was not a continuance under article 54.14[sic] article IV (c). The right to assert the deadline for trial can only be forfeited by the defendant “explicitly or by affirmative request for treatment that is contrary to or inconsistent with [those deadlines]”. Walker v. State, 201 S.W.3rd 841 (Tex. App. – Waco 2006).
Appellant’s brief at 37-38.
17 As an initial response to this claim, it is clear that Appellant
wishes to win a dismissal by characterizing his newly-appointed
counsel’s agreement on the day after he was appointed to represent
Appellant to reset the trial date from June 6, 2014 to November 3,
2014 as a “trial setting” rather than a “continuance.” But that is
not what the record reflects. Newly-appointed counsel signed a
form addressed to the trial court with jurisdiction of the cases
which stated that he and the attorney for the State “request a
continuance of this case(s)” to November 3, 2014. Moreover, any
distinction between “setting” the trial for a later date and asking for
a “continuance” is one without any significance under the statute
and the pertinent caselaw. The fact that newly-appointed counsel
was granted an agreed postponement of the trial date in order to
prepare to go to trial, rather than for some other reason, such as a
need to delay the trial due to the attorney’s heavy caseload or
personal problems, does not matter for purposes of the IADA. All
“necessary or reasonable” continuances are treated the same under
Article IV; they toll the 120-day deadline. Tex. Code Crim. Proc.
Ann. art. 51.14, Art. IV(c); see Huffines v. State, 646 S.W.2d 612,
613 (Tex. App. – Dallas 1983, pet. ref’d) (“agreed resettings,” even
18 without an explanation therefor provided by the record, constituted
“necessary and reasonable” continuances for purposes of tolling
IAD deadline); Ex parte Saylor, 734 S.W.2d 55, 57 (Tex. App. –
Houston [1st Dist.] 1987, no pet.)(same). Appellant has no authority
to show that the final continuance given to Mr. Fishburn upon his
appointment to represent Appellant does not toll the 120-day time
period.
Appellant also argues that the deadline was not tolled by the
continuances in the record because he did not personally
participate in obtaining them. It should be noted that Appellant
relies on a Waco Court opinion in Walker for the proposition that a
defendant must personally agree to a trial date outside the 120-day
period to toll the requirements of Article IV of the IADA. However,
Walker is distinguishable on this point. Walker contended that the
court erred by failing to dismiss the indictment with prejudice
because he was not tried within 180 days after requesting a transfer
to Texas under Article III, not Article IV, of the IADA. Opinions from
the Waco Court of Appeals are not binding on this Court.
What suffices for waiver depends on the nature of the right at
issue. New York v. Hill. 528 U.S. 110, 114, 120 S.Ct. 659, 145
19 L.Ed.2d 560 (2000). “[W]hether the defendant must participate
personally in the waiver; whether certain procedures are required
for waiver; and whether the defendant’s choice must be particularly
informed or voluntary, all depend on the right at stake.” United
States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d
508 (1993). There is no requirement that a waiver of rights under
the IADA be made “knowingly or intelligently” because the Act’s
protections are not founded on constitutional rights. See Cooney v.
Fulcomer, 886 F.2d 41, 46 (3d Cir. 1989) (holding violation of IADA
is not an infringement of a constitutional right); United States v.
Black, 609 F.2d 1330, 1334 (9th Cir. 1979) (same); Camp v. United
States, 587 F.2d 397, 400 (8th Cir.1978) (same); see also Gray v.
Benson, 608 F.2d 825, 826-27 (10th Cir. 1979) (finding defendant
waived IADA rights by requesting transfer to obtain medical
treatment); United States v. Scallion, 548 F.2d 1168, 1170 (5th Cir.
1977) (finding defendant estopped from raising Article IV(e) claim
where he requested return for parole hearing). Appellant’s claim
should be rejected. The signatures of his attorneys alone are
sufficient. See Bell v. State, 768 S.W.2d 790, 801 (Tex. App. –
Houston [14th Dist.] 1989, pet. ref’d); Petrick v. State, 832 S.W.2d
20 767, 772 (Tex. App. – Houston [1st Dist.] 1992, pet. ref’d), overruled
in part as stated on other ground, Blackshear v. State, 385 S.W.3d
589, 591 (Tex. Crim. App. 2012) (holding that where the State and
the accused agree to a continuance in the record, as provided by
Article IV(c), the accused’s personal consent is not required;
counsel’s signature is sufficient); Tex. Code Crim. Proc. Ann. art.
51.14, Art. IV (c)(stating that either the prisoner or his counsel
must be present when a continuance is granted).
Although Appellant would have it otherwise, postponements or
continuances of the case agreed to by defense counsel toll the time
period required for bringing the accused to trial. See State v. Powell,
971 S.W.2d 577, 581 (Tex. App. – Dallas 1998, no pet.); Rexroad v.
State, Nos. 05-99-01991-CR & 05-99-02004-CR, 2000 Tex. App.
LEXIS 7231, at *4 (Tex. App. – Dallas Oct. 26, 2000, pet. ref’d) (not
designated for publication). Moreover, the Supreme Court expressly
rejected the proposition that the forfeiture of the Interstate
Agreement on Detainers’ deadlines may only be accomplished
“explicitly or by an affirmative request for treatment that is contrary
to or inconsistent with [those deadlines].” Hill, 528 U.S. at 118. As
the Court explained, such an approach would enable defendants to
21 escape justice by willingly accepting treatment inconsistent with the
act’s time limits, and then recanting later on. Id. The Court in Hill
ultimately held that defense counsel’s agreement to a trial date
outside the act’s time period waived Hill’s later complaint. Id. at
118.
This is the evidence in the record of the present case.
Appellant was incarcerated in Oklahoma when he was indicted in
Dallas County in the instant aggravated robbery. He was booked
into the Dallas County jail on March 7, 2014, which the parties
represented to be his arrival date under the statute. (RR4: 14, 16).
On March 28, 2014, Appellant, through his appointed attorney
Davis, agreed to continue the case to April 4, 2014. Then by an
uninterrupted series of requested continuances, Appellant agreed to
continue his trial to June 6, 2014. On June 9, 2014, Appellant
received new counsel Mr. Allan Fishburn who also serves as
appellate counsel in this case. The next day, on June 10, 2014,
Appellant, through newly-appointed counsel, agreed to “request a
continuance” until November 3, 2014. Thus, the statutory period
was tolled during the period between March 28, 2014 to June 6,
2014 and June 10, 2014 to November 3, 2014. Only 25 days of the
22 120-day period would have expired on November 3, 2014, the date
Appellant went to trial in the instant case. Thus, because Appellant
assented to the trial date, he was precluded from complaining that
the trial date was outside the 120-day period. The delays in
bringing Appellant to trial were not due to prosecutorial delay; thus,
the IADA provides no remedy for Appellant. Therefore, the trial
court did not err by denying the motion to dismiss the indictments
on the ground that the State had violated Appellant’s rights under
Article IV of the IADA. Point Two should be overruled.
RESPONSE TO POINT THREE The evidence is sufficient to sustain Appellant’s conviction.
Appellant’s Contention
Appellant asserts that the eyewitness testimony is insufficient
to prove the element of identity beyond a reasonable doubt.
Appellant’s brief at 42.
Amanda Edmiston testified that about 3:30 p.m. on July 20,
2006, she and Alyssa Acosta had something to eat at a Dallas
County Wendy’s restaurant. When they returned to her baby blue
Pontiac Bonneville in the parking lot, a man approached her and
23 asked her the time of day. As she answered the man, he pulled out
a black gun and told her to get into the driver’s seat. She identified
Appellant in the courtroom as that man. She remembered him
because of the star tattoo on his neck. (RR6: 13-15, 17).
Appellant got into the middle of the back seat and he told
Amanda that they were going to Kansas. Appellant took her cell
phone. Amanda was terrified even though Appellant said he was
not going to hurt anyone. She felt threatened by his having a gun.
(RR6: 16). Alyssa told Appellant that they were not going to Kansas
with him and he needed to let them go. Amanda drove around for
15 to 20 minutes until Appellant allowed the women to get out of
the car at an elementary school. He drove away as they ran toward
a building. (RR6: 17). She reported the license plate number of her
stolen car to the police. (RR6: 33).
The next day, Amanda viewed a photographic lineup. See
State’s Exhibit 5. She made a positive identification of Appellant by
his photograph. (RR6: 18). On cross-examination, Amanda stated
that she would have identified Appellant in the courtroom even if
she had not viewed a lineup. She remembered the star tattoo on
his neck, his dark features, and his hair. (RR6: 32, 34).
24 Alyssa Acosta testified to the same essential facts as did
Amanda. Alyssa recalled that it was about 3:30 p.m. on the day of
the offense when she was sitting in Amanda’s Bonneville parked in
a Wendy’s parking lot. Alyssa was sitting in the front passenger
seat. A man approached the car and asked Amanda the time of
day. (RR6: 37-38). The man pulled a gun. It was an automatic
weapon, not a revolver. He told Amanda to get into the driver’s
seat, he got into the back seat, and he told Amanda to drive away.
(RR6: 40-41).
Alyssa recalled that the gunman was Hispanic. He had dark
features and a star tattooed on his neck. He said they were going to
Kansas. (RR6: 41). Amanda drove around for about 10 minutes
during which time Alyssa told the gunman that she was not going
to Kansas with him. He took their cell phones, but he returned
Alyssa’s cell phone to her. He asked for their wallets, but Alyssa
refused to relinquish her wallet. (RR6: 42). When the gunman
released the women at a nearby school, they called the police to
report the offense. Alyssa told the police that the gunman was on
his way to Kansas in a stolen car. (RR6: 41, 43).
25 The next day, Alyssa viewed a photographic lineup. See
State’s Exhibit 6. (RR6: 43-44). She made a positive identification
of one photograph. (RR6: 44). She testified that she was certain in
her identification even though no tattoo was showing in the
photograph because she remembered the gunman’s eyes. (RR6: 58-
59). Alyssa identified Appellant in the courtroom as the gunman
who committed the offense. (RR6: 45).
There was additional evidence which corroborated the
eyewitnesses’ identifications and connected Appellant to the offense.
Kingfisher County, Oklahoma Deputy Sheriff David Lanman
testified that between 7:45 and 8:00 p.m. on the day of the offense,
he stopped and arrested Appellant in Oklahoma. Appellant was
driving a 1993 blue Pontiac with Texas license plates. He was
traveling north on I-35. Lanman stopped Appellant at a location
which is about 3 ½ to 4 hours driving distance from Dallas. The
vehicle he was driving matched the description of the one stolen
that day at 3:30 p.m. in a Dallas County aggravated robbery. After
searching the vehicle, Lanman found a black 380 semi-automatic
weapon on the driver’s side. (RR6: 63-66). In Lanman’s opinion,
26 the best way to travel from Dallas to Kansas is “straight up I-35,”
which goes directly into Kansas City. (RR6: 66-67).
After Appellant was taken into custody by Officer Lanman in
Oklahoma, former Dallas County Police Department Detective
Martha Sanders created lineups including Appellant’s photograph.
Sanders then showed lineups to Amanda and Alyssa at separate
times in different locations. (RR6: 69, 71, 72, 76-77). Both
Amanda and Alyssa made positive identifications of Appellant’s
photograph as that of the gunman who committed the aggravated
robbery. (RR6: 18, 43-44).
Principles of Law Applied to Facts and Conclusions
Appellant contends “[i]t is absurd to conclude that anyone
could identify” him as the perpetrator of the offense based on these
circumstances: (1) he was identified by two eyewitnesses to whom
he was a stranger, (2) the eyewitness viewed him only for a brief
time during the offense, (3) the eyewitnesses’ ability to form a
memory of his face was impaired by the trauma of the event, and (4)
eight years had elapsed from the time of the event to the day of
trial. Appellant’s brief at 42. Obviously, Appellant is asking this
27 Court to reassess the weight and the credibility of the eyewitness
testimony upon which the jury relied to convict him.
The reviewing court applies the Jackson v. Virginia sufficiency
standard of review to sufficiency challenges concerning the
elements of a criminal offense. Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State, 323
S.W.3d 893, 898-913 (Tex. Crim. App. 2010). Under the Jackson
standard, evidence is insufficient to support a conviction if,
considering all the record evidence in the light most favorable to the
verdict, no rational fact-finder could have found that each essential
element of the charged offense was proven beyond a reasonable
doubt. See Jackson, 443 U.S. at 319; Laster v. State, 275 S.W.3d
512, 517 (Tex. Crim. App. 2009).
The reviewing court’s role is that of a due-process safeguard,
ensuring only the rationality of the trier of fact’s finding of the
essential elements of the offense beyond a reasonable doubt. See
Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). It is
the function of the trier of fact to weigh any evidence, and to
evaluate the credibility of any witnesses. See Dewberry v. State, 4
S.W.3d 735, 740 (Tex. Crim. App. 1999). Reviewing courts,
28 therefore, defer to the jury’s credibility and weight determinations.
See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).
Under the Jackson standard, any conflicts or inconsistencies in the
witness’s testimony, including any conflicts regarding the weight of
the evidence, are exclusively within the jury’s province to resolve.
See Dewberry, 4 S.W.3d at 740; Marshall, 210 S.W.3d at 625
(requiring appellate courts to resolve any inconsistencies in
evidence in favor of verdict and “defer to the jury’s credibility and
weight determinations”).
At the closing of the trial on the merits, defense counsel
argued to the jury that identity of the perpetrator was at issue. He
hoped to persuade the jury that the victims were too upset and too
startled by the gunman’s actions during the fleeting offense
committed eight years ago to have presented reliable testimony
identifying Appellant as the man who committed the offense. (RR6:
112-13). He challenged the lineup procedure as being unduly
suggestive. (RR6: 113-18). As the fact-finder, the jury was
responsible for resolving all of the issues that Appellant had raised
at trial with respect to the testimony of these two witnesses (i.e.,
weight of the evidence and credibility of the witnesses). See
29 Dewberry, 4 S.W.3d at 740; Marshall, 210 S.W.3d at 625. The jury
was well-within its province to believe Amanda and Alyssa when
they testified that Appellant is the Hispanic man with the tattooed
neck, distinctive eyes and hair, and dark features they remembered
from having seen him during the commission of the aggravated
robbery, and to disbelieve and reject any suggestions from the
defense to the contrary. See Dewberry, 4 S.W.3d at 740; Marshall,
210 S.W.3d at 625. These eyewitnesses appeared to be credible
because their in-court identifications of Appellant were consistent
with the identifications from the lineups they made only one day
after the offense had occurred.
In addition, Appellant was linked to the offense by
circumstantial evidence. He was found in possession of the car
stolen during the aggravated robbery only four hours after it had
occurred. He was driving on a highway best suited to take him
directly from Dallas to Kansas City, the location he told the
eyewitnesses he wanted to go to before he took the car. Inside the
car was a weapon which matched the descriptions of the weapon
the eyewitnesses had seen during the offense.
30 Viewing the evidence in the light most favorable to the verdict,
and deferring to the jury’s credibility and weight determinations,
this Court should conclude that a rational fact-finder could have
found, beyond a reasonable doubt, that Appellant committed the
offense, as charged. Therefore, this Court should overrule this
point and hold that the evidence is legally sufficient to support
Appellant’s conviction. See Johnson v. State, 176 S.W.3d 74, 78
(Tex. App. – Houston [1st Dist.] 2004, pet. ref’d) (reasoning that the
testimony of a single eyewitness identifying the accused is sufficient
to support a felony conviction for aggravated robbery); Santos v.
State, 116 S.W.3d 447, 457-59 (Tex. App. – Houston [14th Dist.]
2003, pet. ref’d) (concluding evidence sufficient when eyewitnesses
identified defendant as a participant in a robbery and
circumstantial evidence relating to the firearm used in the robbery
corroborated witness identification and showed defendant’s guilt
even though defendant testified he was not involved in the robbery);
Mayes v. State, Nos. 03-10-00101-CR & 03-10-00102-CR, 2011
Tex. App. LEXIS 2075, at *26 (Tex. App. – Austin Mar. 18, 2011, no
pet.)(mem. op., not designated for publication) (finding evidence
sufficient to sustain a robbery conviction because both victims
31 identified defendant, neither victim expressed any uncertainty in
their identifications, defendant was found driving the vehicle used
in the robberies, and officers found a black BB gun like the one
used to commit the robberies).
RESPONSES TO POINT 4
Appellant failed to file a plea to jurisdiction in the 283rd Judicial District Court, and he waived Point 4’s complaint.
The 283rd District Court which tried Appellant’s cases did not lack jurisdiction due to an improper transfer to its docket.
Appellant contends that the court which tried his cases (which
he incorrectly identifies as the 291st Judicial District Court instead
of the 283rd Judicial District Court), never acquired jurisdiction of
his case and the judgment of conviction out of that court is void.
This claim is based on an assertion that Appellant’s indictment was
presented to the 204th Judicial District Court of Dallas County, and
his case was never properly transferred out of that court to the
court which heard his cases because the record does not contain
the 204th Judicial District Court’s transfer order. Appellant’s brief
at 44.
32 Appellant failed to file a formal plea challenging the
jurisdiction of the trial court. Thus, he failed to preserve this issue
for appellate review. Lemasurier v. State, 91 S.W.3d 897, 899-900
(Tex. App.- Fort Worth 2002, pet. ref’d) (fact that no transfer order
contained in record is procedural matter, not jurisdictional;
defendant who fails to file plea to jurisdiction waives complaint);
Gullatt v. State, Nos. 05-13-01515-CR & 05-13-01516-CR, 2014
Tex. App. LEXIS 13832, at *3 (Tex. App. – Dallas Dec. 29, 2014, no
pet.) (mem. op., not designated for publication).
If this Court decides to address this unpreserved point, it
should overrule it because this Court has previously met and
rejected this same argument. Hill v. State, No. 05-09-00078-CR,
2010 Tex. App. LEXIS 1486, at *3 (Tex. App. – Dallas Mar. 3, 2010,
no pet.) (not designated for publication); Ives v. State, Nos. 05-13-
00615-CR & 05-13-00616-CR, 2014 Tex. App. LEXIS 3749, at *3
(Tex. App. – Dallas Mar. 31, 2014,no pet.) (mem. op., not designated
for publication). A grand jury formed and impaneled by a district
judge inquires “into all offenses liable to indictment” and hears all
the testimony available before voting on whether to indict an
accused. Tex. Code Crim. Proc. Ann. arts. 20.09, 20.19 (West
33 2005); Ex parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987).
A grand jury is “often characterized as an arm of the court by which
it is appointed rather than an autonomous entity.” After the
conclusion of testimony, a grand jury votes “as to the presentment
of an indictment.” Dallas County Dist. Attorney v. Doe, 969 S.W.2d
537, 542 (Tex. App. – Dallas 1998, no pet.). Following presentment,
an indictment is filed in a court with competent jurisdiction, i.e.,
jurisdiction to hear the case. Hultin v. State, 351 S.W.2d 248, 255
(Tex. Crim. App. 1961).
In counties having two or more district courts (such as Dallas
County), the judges of the courts may adopt rules governing the
filing, numbering, and assignment of cases for trial and the
distribution of the courts’ work they consider necessary or desirable
to conduct the business of the courts. Tex. Gov’t Code Ann.
§74.093 (West 2013) (addressing adoption of local rules of
administration to provide, in part, for assignment, docketing,
transfer, and hearing of all cases). Thus, a specific district court
may impanel a grand jury; however, it does not necessarily follow
that all cases returned by the grand jury are assigned to that court.
34 Bourque v. State, 156 S.W.3d 675, 678 (Tex. App. – Dallas 2005,
pet. ref’d).
In the present case, the indictment reflects that a grand jury
was impaneled by the 204th Judicial District Court of Dallas
County. (CR: 10). Following the return of Appellant’s indictment,
this case was filed in the 283rd Judicial District Court of Dallas
County. The Clerk’s Record reflects the statement of the Honorable
Rick Magnis, presiding judge of the 283rd Judicial Court, that his
court received “instruments and papers” associated with this case.
(CR: 4). The 283rd Judicial Court’s docket sheet reflects the filing of
the indictment in that court. (CR: 5-9). Nothing in this record
indicates that this case was originally filed in, or appeared on the
trial docket of the 204th Judicial District Court. Because the 283rd
Judicial District Court had jurisdiction to hear and render
judgment in Appellant’s case, Appellant’s Point 4 should be
overruled.
PRAYER
The State prays that this Honorable Court will affirm the
judgment of the trial court in the present case. Respectfully
submitted,
35 /s/Patricia Poppoff Noble
SUSAN HAWK PATRICIAPOPPOFFNOBLE District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 15051250 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 (214) 653-3634 pnoble@dallascounty.org
CERTIFICATE OF SERVICE AND WORD COUNT
I hereby certify that a true copy of the foregoing brief was served on, Allan Fishburn, attorney for Appellant by efiletexas.gov and by United States mail, on June 1, 2015. I hereby further certify that the length of this brief is 8,132 words using Microsoft Word 2010.
/s/Patricia Poppoff Noble PATRICIA POPPOFF NOBLE