State v. Sephus

32 S.W.3d 369, 2000 WL 1597846

• Court: Court of Appeals of Texas
• Decided: November 1, 2000
• Docket: 10-98-338-CR
• Status: Published

Opinions

OPINION

BILL VANCE, Justice.

After an evidentiary hearing, the trial judge dismissed an indictment for capital murder, with prejudice. The State appealed. Because we find that the dismissal was required by the plain meaning and mandate of the Interstate Agreement on Detainers (the “Detainers Act”), we affirm.¹ Tex.Code Crim.ProcAnn. art. 51.14 (Vernon 1979).

FACTS

The pertinent facts established by the record are:

• Sephus was charged with capital murder in Leon County, alleged to have occurred on August 24,1994;

• Sephus was charged with capital murder in Harris County, alleged to have been committed on a date prior to the Leon County offense;

• Sephus was convicted in April of 1995 of a federal offense arising out of the Leon County event in the United States District Court in Waco, for which he was confined to the U.S. Penitentiary, Allenwood in the State of Pennsylvania for a term of “life without parole”;

• In October of 1995, the District Attorney having authority for prosecutions in Leon County placed a “detainer” against Sephus with the Allenwood penitentiary;

• On November 27, 1995, the warden of the Allenwood penitentiary notified the District Attorney that Harris County had requested disposition of pending charges in Harris County; the warden’s letter was received in the District Attorney’s office on December 14,1995;

• In November of 1996, Sephus was tried in Harris County and convicted of capital murder and assessed life in the penitentiary;

• No earlier than December 1996, but no later than May 1997 and most likely no later than January 31, 1997, Se-phus was returned to the federal penitentiary in Pennsylvania to resume serving his federal sentence;

• In January of 1997, a new District Attorney with responsibility for prosecutions in Leon County took office;

• In May of 1997, the District Attorney began attempts to have Sephus brought to Texas for trial on the Leon County charge of capital murder;

• After several communications with the Allenwood federal penitentiary, the District Attorney on July 7, 1997, requested that the detainer be released;

• The Allenwood facility released the de-tainer on July 8,1997;

• Seven “Writs of Habeas Corpus Ad Prosequendum” were issued by the Leon County District Clerk, dated July 2, 1997(2), July 10, 1997, July 14, 1997, June 20, 1997, and October 22, 1997(2);

• On November 7, 1997, Sephus was arraigned in the District Court in Leon County;

• On April 27, 1998, Sephus filed a “Motion to Dismiss for Violations of the Interstate Agreement on Detainers Act;”

• On September 14, 1998, several months after the hearing on Sephus’ motion, the District Attorney filed a response.

THE ORDER

In the order dismissing the indictment, the trial court made five factual findings:

1. Defendant was tried and convicted, in April, 1995, in the Federal District Court, Waco, Texas, for several offenses arising out of the Norman-gee bank robbery, which is also the basis for this prosecution. He was convicted and sentenced to life in prison, without eligibility for parole. He began serving his Federal prison sentence in Pennsylvania. Leon County, Texas, maintained a detain-er on Defendant for the pending capital murder charge.

2. In 1995, Harris County, Texas, through the use of the Interstate Agreement on Detainers Act, obtained temporary custody of Defendant from the United States prison officials in Pennsylvania. While in the temporary custody of the authorities of Harris County, Texas, Defendant was tried and convicted of capital murder, receiving a life sentence in November, 1996.

3. In 1997, Defendant was returned by the State of Texas to the Federal Prison Authorities, in Pennsylvania, without disposing of the criminal charges pending in Leon County, Texas.

4. On November 7, 1997, Defendant was brought to Leon County, Texas, from Pennsylvania, pursuant to a Writ of Habeas Corpus ad Prose-quendum and Leon County’s request for temporary custody.

5. No trial date has been scheduled within 120 days of Defendant’s return to Leon County, Texas.

The court concluded that prosecution of the Leon County offense was barred under the Detainers Act.

THE DETAINERS ACT

The trial court decided this case under Article IV of the Detainers Act. Article IV provides:

(a) The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Paragraph (a) of Article V hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated; provided that the court having jurisdiction of such indictment, information, or complaint shall have duly approved, recorded, and transmitted the request; and provided further that there shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.

(b) Upon receipt of the officer’s written request as provided in Paragraph (a) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate 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 decisions of the state parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.

(c) 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.

(d) Nothing contained in this article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in Paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executing authority of the sending state has not affirmatively consented to or ordered such delivery.

(e) If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Paragraph (e) of Article V hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

Id. Article IV. Subparagraph (e) of Article V provides: “(e) At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.” Id. Article V(e).

THE ISSUES

On appeal, the State asserts three issues:

1. The trial court erred in dismissing the indictment in this cause as ap-pellee did not follow proper procedures to trigger the Interstate Agreement on Detainers.

2. The trial court erred in dismissing the indictment in this cause as ap-pellee waived any rights he had under Article IV of the Interstate Agreement on Detainers.

3. The trial court erred in dismissing the indictment in this cause as ap-pellee waived any rights he had under Article III of the Interstate Agreement on Detainers.

STANDARD OF REVIEW

We review the decision to dismiss de novo but review the findings supporting that decision under the “clearly erroneous” standard. United States v. Hall, 974 F.2d 1201, 1204 (9th Cir.1992); Espinoza v. State, 949 S.W.2d 10, 11 (Tex.App. — San Antonio 1997, pet. ref'd).

APPLICATION

The court’s conclusion under Article IV is sustained by the first, second, and third findings, which are not contested by the State. Findings four and five are immaterial.

Significantly, the State’s brief does not assert that Article IV is inapplicable; its argument is limited to “waiver of the rights [Sephus] had under Article IV.” The first issue presented by the State raises the question of whether Sephus followed the proper procedures to “trigger the Interstate Agreement on Detainers.” The argument under this issue is limited to a discussion of the prisoner’s duties under Article III to make a request and to provide the notices required under that article so as to invoke the “anti-shuttling” provisions of the act. No mention of Article IV is made. The State’s second and third issues are limited to an argument that Sephus waived the provisions of Articles III and IV of the act after he was returned to Texas the second time. As we will discuss, those issues are immaterial to the question of whether he was entitled to a dismissal with prejudice when he was returned to Pennsylvania after his first trip to Texas to stand trial in Harris County. By failing to address its applicability, the State effectively concedes that Article IV applies.

Article III

The State’s first issue questions whether Sephus took steps necessary to invoke the Detainers Act and provided the notices required by Article III. However, the court’s second finding that Harris County used the Detainers Act to secure Sephus’ return to Texas is supported by the record. Thus, as we will show, Article IV rather than Article III sets the standard by which Sephus’ right to a dismissal is measured. Issue one has no merit.

Article W

Under Article IV, the prisoner is transferred to the requesting state without consideration of the prisoner’s feelings about a transfer, and not at his request. Nothing is required of the prisoner. Article IV simply provides: “If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Paragraph (e) of Article V hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” Tex.Code CRImProcAnn. art. 51.14, Article IV(e). Dismissal does not depend upon a motion by the prisoner; the right to a dismissal with prejudice flows from the statute. See id.

We must give the statute effect according to its plain meaning. State v. Mason, 980 S.W.2d 635, 638 (Tex.Crim.App.1998) (“focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment”); Boykin v. State, 818 S.W.2d 782, 786-87 (Tex.Crim.App.1991).

While Leon County’s detainer was pending with federal authorities, Sephus was returned to Texas at the request of Harris County. The Leon County prosecutor was given notice of his return to Texas, and after he was tried in Harris County, Sephus was sent back to the federal penitentiary in Pennsylvania without being tried on the Leon County indictment. Applying the literal text of the statute to the facts: “[Because] trial [was] not had on [the Leon County] indictment, ... prior to [Sephus’] being returned to [Pennsylvania] pursuant to Paragraph (e) of Article V hereof, [the Leon County] indictment, ... [is of no] further force or effect, and the court shall enter an order dismissing the same with prejudice.” See id.; Tex.Code CRIm.Proc.Ann. art. 51.14, Article IV(e).² Thus, the trial judge correctly analyzed the facts and applied the Detainers Act to them.

Wavier

The State’s second and third issues assert that Sephus waived the benefits of both Article IV (second issue) and Article III (third issue). As we have noted, Article III is inapplicable, and we do not reach the third issue. With respect to waiver under Article IV, the State urges only that during Sephus’ second trip to Texas he waived the 120 day period allowed for trial under Article IV. However, under the literal reading of Article IV(e), which we must apply, the 120 day period for the State to try Sephus never came into play because a trial was already barred. The statute says an “indictment, ... shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice” when a prisoner is returned to the sending state without being tried on that indictment. Tex.Code Crim.Proc.Ann. art. 51.14, Article IV(e). Thus, the statute operates, as the trial court concluded, to bar prosecution under the indictment. What occurs thereafter cannot revive a barred indictment. The State’s waiver argument is without merit.

REPLY TO DISSENT

The dissent criticizes the decision to affirm the trial court’s ruling, arguing that Sephus never raised Article IV(e). This theory supporting reversal by the dissent is wrong, both factually and legally. Factually, the record establishes that the Article IV(e) issue was presented to the trial court. In a reply brief filed approximately one month before the court’s ruling, Se-phus argued:

The State contends that the Interstate Agreement on Detainers (IADA) does not apply because the Defendant did not make his request for disposition in the proper form or give proper notice. The evidence shows without controversy that Harris County, in 1995, obtained Defendant’s presence in Texas through a request for temporary custody and the IADA. Thus the IADA provisions requiring that all Texas cases be disposed prior to returning Defendant to Federal Custody are applicable. The. IADA can be invoked by either the action of the State or the Defendant. In Harris County the IADA was invoked expressly by the State of Texas.

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The State’s response ignores Defendant’s contention that all Texas cases must be disposed prior to the return of Defendant to Federal custody. If one county gets temporary custody of Defendant, under the IADA, all other Texas counties with pending charges must dispose of those prosecutions before Defendant is returned.

Thus, Sephus did raise an Article IV(e) theory when he asked the trial court to dismiss the indictment.

Legally, even if Sephus had not relied upon Article IV(e) when urging the trial court to dismiss the indictment against him, we should affirm the trial court’s decision under the long-standing rule of appellate procedure whereby we affirm a judgment when it is correct on any theory of law applicable to the case. See, e.g., McDuff v. State, 939 S.W.2d 607, 619 (Tex.Crim.App.1997). Thus, even if Sephus had failed to raise the issue, under the basic principle of appellate jurisprudence that a trial court’s ruling should be upheld on any legal basis applicable to the case, the court’s judgment should be affirmed.

We affirm the trial court’s order dismissing the indictment with prejudice.

Justice GRAY dissents.

1 . The author became responsible for drafting a majority opinion on August 7, 2000.

2 . Because the Detainers Act also states that its goal is to "encourage the expeditious and orderly disposition of such charges ... based on untried indictments,” the result in this case cannot be said to be absurd. TexCode Crim.Proc.Ann. art. 51.14, Article I (Vernon 1979); Johnson v. State, 871 S.W.2d 744, 749 (Tex.Crim.App.1994) (Only when the literal text of a statute is unclear or would lead to results so absurd that the Legislature could not possibly have intended them should courts resort to extraneous means in statutory interpretation.).