in Re Dominique Dontae Lasker

• Court: Court of Appeals of Texas
• Decided: February 3, 2015
• Docket: 01-14-00630-CR
• Status: Published

Opinion

ACCEPTED 01-14-00630-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 2/3/2015 2:00:42 PM CHRISTOPHER PRINE CLERK NO. 01-14-00630-CR NO. 01-14-00631-CR NO. 01-14-00632-CR FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 2/3/2015 2:00:42 PM IN THE CHRISTOPHER A. PRINE Clerk COURT OF APPEALS OF TEXAS FIRST SUPREME JUDICIAL DISTRICT SITTING AT HOUSTON, TEXAS

IN RE

DOMINIQUE DONTAE LASKER

RELATOR’S MOTION FOR EN BANC RECONSIDERATON

Frank Blazek SMITHER, MARTIN, HENDERSON & BLAZEK, P.C. 1414 11th Street Huntsville, Texas 77340 Phone: 936-295-2624 Telecopier: 936-294-9784 frankblazek@smithermartin.com

William F. Carter State Bar No. 03932800 108 E. William J. Bryan Parkway Bryan, Texas 77803-5334 (979) 779-0712 (979) 779-9243 [Telecopier] wfcarter73@yahoo.com TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

RIGHTS UNDER THE IADA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUNDS FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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Cases:

Lara v. Johnson, 141 F.3d 239 (5th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . 6

Lara v. State, 909 S.W.2d 615 (Tex. App.–Ft. Worth 1995). . . . . . . . . . . . . . 5

State v. Chestnut, 424 S.W.3d 213 (Tex. App.–Texarkana 2014). . . . . . . . . . . 5

Statutes:

Tex. Code Crim. Proc. 51.14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-7

Tex. Code Crim. Proc. 51.14 Art. IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Code Crim. Proc. 51.14 Art. V(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rules:

Tex. R. App. P. 49.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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IN THE COURT OF APPEALS OF TEXAS FIRST SUPREME JUDICIAL DISTRICT SITTING AT HOUSTON, TEXAS

RELATOR’S MOTION FOR EN BANC RECONSIDERATION

TO THE HONORABLE JUSTICES OF SAID COURT:

Now comes the Relator, DOMINIQUE DONTAE LASKER, by and

through his attorneys of record, and submits this his Motion for En Banc

Reconsideration, and for cause would show the Court the following:

RELATOR’S MOTION FOR EN BANC RECONSIDERATION PAGE 1 C:\NetShare\FB\CRIM_K-O\Lasker.DD.81075\Mandamus\Motion for Reconsideration.wpd PROCEDURAL HISTORY

A three-justice panel of this Court issued an order denying Relator’s Petition

for Mandamus on January 27, 2015. In re Lasker, 2015 Tex. App. LEXIS 699

(Tex. App.–Houston [1st Dist.] Jan. 27, 2015). This motion is made within

fifteen days thereof pursuant to Rule 49.7 of the Texas Rules of Appellate

Procedure.

By way of background, Relator is the defendant in three criminal cases

pending in the 506th District Court of Waller County, Texas. Relator contends

that he is entitled to a dismissal of those charges pursuant to the remedies of the

Interstate Agreement on Detainers (IADA), Texas Code of Criminal Procedure,

Art. 51.14.

Relator moved the trial court to dismiss these cases pursuant to the IADA.

After a hearing on the matter the trial judge refused to do so. Relator brought this

mandamus petition to this Court contending that there were no disputed issues

of fact and he was entitled to a dismissal as a ministerial act of the trial court.

RIGHTS UNDER THE IADA

The IADA imposes time limits for a trial to commence in an applicable case.

If the State fails to commence a trial within the time limits, the defendant is

RELATOR’S MOTION FOR EN BANC RECONSIDERATION PAGE 2 C:\NetShare\FB\CRIM_K-O\Lasker.DD.81075\Mandamus\Motion for Reconsideration.wpd entitled to a dismissal with prejudice. Art. 51.14 Article V(c) Texas Code of

Criminal Procedure.

The IADA sets a 180-day time limit from the date of an effective demand

for speedy disposition if a defendant requests a speedy disposition of a detainer

while serving a prison sentence in another State. The IADA sets a 120-day time

limit from the date the defendant is brought to this State if the State requests

temporary custody under the IADA.

GROUNDS FOR RELIEF

In this case it is undisputed that Relator was serving a prison sentence in the

federal prison (Pages 2 and 3 of the State’s Response to Petition of Writ of

Mandamus) and that a detainer for these charges by Waller County was placed

on him. RR 5, p. 7. Further, the Warden’s Certificate describes the pending

detainers which had been placed on Relator at the time of his second request.

CR 19.

In the trial court and in the Petition for Writ of Mandamus, Relator argued

that he was entitled to relief on three factual theories: (1) that the State did not

commence trial within 180 days of his first request for speedy disposition of his

detainers; (2) that the State did not commence trial within 180 days of his

second request for speedy disposition of his detainers; and (3) that the State did

RELATOR’S MOTION FOR EN BANC RECONSIDERATION PAGE 3 C:\NetShare\FB\CRIM_K-O\Lasker.DD.81075\Mandamus\Motion for Reconsideration.wpd not commence trial within 120 days of his arrival in the State pursuant to the

State’s request for temporary custody.

ARGUMENT AND AUTHORITIES

Relator remains confident that all three grounds for relief are valid.

Without abandoning any claim for relief, this motion for reconsideration will

focus on Relator’s right to relief on his second request for speedy disposition.

The State concedes that the second request was received by the Court and

the District Attorney on February 8, 2013. The State concedes that it was

delivered by certified mail. The State contends that its only imperfection was that

the warden did not certify Relator’s parole eligibility date (Page 3 of the State’s

Response to Petition of Writ of Mandamus). Under the IADA, this second

request, if effective, would start a 180-day time limit, which would expire on

August 11, 2013. No trial commenced and no motion for continuance was ruled

upon until September 9, 2013.

The State contends that this second request was not effective because the

prison warden left blank the parole eligibility date on the certificate of inmate

status. CR 19. There is no clear authority for the State’s position. It is

undisputed that the State was aware that Relator was not eligible for parole.

None of the cases cited by the State offer an example where an IADA request was

RELATOR’S MOTION FOR EN BANC RECONSIDERATION PAGE 4 C:\NetShare\FB\CRIM_K-O\Lasker.DD.81075\Mandamus\Motion for Reconsideration.wpd held invalid because a warden failed to complete the certificate with regard to

parole eligibility date.

Could this Court be holding that leaving a blank empty rather than typing

in the word “none” constitutes a fatal flaw rendering the IADA request

ineffective? In the context of this case, leaving a blank is the meaningful

equivalent of typing in the word “none.” This is especially true when the State is

aware that the correct meaning is “none.” No one was mislead or uninformed of

Relator’s parole eligibility date because the blank was left empty.

Relator’s second request constitutes strict compliance with the IADA. Strict

compliance does not require perfect compliance. See: State v. Chestnut, 424

S.W.3d 213 (Tex. App.–Texarkana 2014). In Chestnut the court held that the

defendant was entitled to relief under the IADA when through no fault of his own

his request for speedy disposition was never received by the court but was received

only by the prosecutor.

The State relies heavily on Lara v. State, 909 S.W.2d 615 (Tex. App.–Ft.

Worth 1995). The Court of Appeals in Lara found that the defendant there did

not submit his IADA request to the warden as required by the statute, that there

was no certificate of status filed by the warden as required by the IADA and that

the defendant did not otherwise attempt to provide the information required in

RELATOR’S MOTION FOR EN BANC RECONSIDERATION PAGE 5 C:\NetShare\FB\CRIM_K-O\Lasker.DD.81075\Mandamus\Motion for Reconsideration.wpd the certification and, thus, there was no strict compliance with the IADA. It was

therefore proper to deny relief under the IADA. In this case Relator’s

circumstances are entirely different. Relator did everything he was required to do

by the statute. The warden did everything he was required to do as well. The

State had all the information required, even though one blank was left empty on

the warden’s certification. The IADA request was near perfect.

Lara does not stand for the proposition that the IADA request must be

perfect.

However, we are not implying or stating that nothing short of strict and literal compliance with each and every IAD provision is absolutely necessary to sufficiently notify a state's prosecutors of a request for trial. We merely state that Lara's letter does not pass muster under the precedent and standards previously listed to trigger the IAD.

Lara v. Johnson, 141 F.3d 239, 243 (5th Cir. 1998).

The circumstances of this case compel a conclusion that Relator strictly

complied with the provisions of the IADA.

The State further argues that the Relator was brought into open court within

the 180 days without counsel and that the case was continued and reset for a later

date. A fair reading of the eight pages of the Court Reporter’s Record, Volume 2,

of that hearing will show that there was no continuance and no reset of the case.

RELATOR’S MOTION FOR EN BANC RECONSIDERATION PAGE 6 C:\NetShare\FB\CRIM_K-O\Lasker.DD.81075\Mandamus\Motion for Reconsideration.wpd Certainly there is nothing that indicated that the Relator was agreeing to any

delay. The case was never set for trial within the 180-day period. Thus there was

no implied continuance. Relator never agreed to or requested any resetting or

delay.

Because the three-justice panel did not write an opinion explaining or

hinting at the basis of their decision, counsel for Relator remains unguided as to

any defect in his pleadings or deficiencies in his argument.

As the legislature wrote in Article IX of the IADA “this agreement shall be

liberally construed so as to effectuate its purposes.” The State would ask our

courts to do contrary to that.

PRAYER FOR RELIEF

Relator respectfully prays that this Court will reconsider this motion en

banc and grant relief by issuing a writ of mandamus directing the trial court to

follow the IADA and dismiss these three causes with prejudice.

RELATOR’S MOTION FOR EN BANC RECONSIDERATION PAGE 7 C:\NetShare\FB\CRIM_K-O\Lasker.DD.81075\Mandamus\Motion for Reconsideration.wpd Respectfully submitted,

SMITHER, MARTIN, HENDERSON & BLAZEK, P.C. 1414 11th Street Huntsville, Texas 77340 (936) 295-2624 (936) 294-9784 [Telecopier] frankblazek@smithermartin.com

By /s/Frank Blazek Frank Blazek State Bar No. 02475500

William F. Carter State Bar No. 03932800 108 E. William J. Bryan Parkway Bryan, Texas 77803-5334 (979) 779-0712 (979) 779-9243 [Telecopier] wfcarter73@yahoo.com

RELATOR’S MOTION FOR EN BANC RECONSIDERATION PAGE 8 C:\NetShare\FB\CRIM_K-O\Lasker.DD.81075\Mandamus\Motion for Reconsideration.wpd CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of the above and foregoing Motion for En Banc Reconsideration has been forwarded to opposing counsel on this the 3rd day of February, 2015, by U.S. Mail, postage prepaid, and addressed as follows:

Elton R. Mathis Criminal District Attorney 645 12th Street Hempstead, Texas 77445

/s/Frank Blazek Frank Blazek

RELATOR’S MOTION FOR EN BANC RECONSIDERATION PAGE 9 C:\NetShare\FB\CRIM_K-O\Lasker.DD.81075\Mandamus\Motion for Reconsideration.wpd CERTIFICATE OF COMPLIANCE

I certify that the foregoing Relator’s Motion for En Banc Reconsideration complies with Texas Rule of Appellate Procedure 9 and contains 1262 words.

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