Lasker v. State

586 S.W.3d 408 (Mem)

Dominique Dontae LASKER, Appellant

v.The STATE of Texas

NOS. PD-0549-19

PD-0550-19

Court of Criminal Appeals of Texas.

FILED: October 30, 2019

Petition for discretionary review refused.

DISSENTING OPINION

Yeary, J., filed a dissenting opinion.

The Court refuses the State's petition for discretionary review in this case. I believe the State has raised important issues with respect to the proper application of the Interstate Agreement on Detainers Act that would be helpful to the jurisprudence for this Court to resolve. TEX. CODE CRIM. PROC. art. 51.14 (hereinafter, "IADA"). But even if I thought the State's petition failed to raise issues worthy of our attention, I would grant discretionary review on our own motion, as we are authorized to do under Rules 66.1 and 67.1 of the Rules of Appellate Procedure. See TEX. R. APP. P. 66.1 & 67.1 (authorizing this Court to grant discretionary review on its own initiative at any time before the court of appeals' mandate issues). Because the Court does not at least do that, I respectfully dissent.

The Legislature enacted the IADA in 1975 as part of a compact among the federal government and the various states by which an inmate incarcerated in one member state may demand trial in another member state that has lodged a detainer against him within a certain prescribed period of time.¹ "The Agreement is a congressionally sanctioned interstate compact within the Compact Clause, U.S.Const., Art. I, § 10, cl. 3, and thus is a federal law subject to federal construction." Carchman v. Nash , 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985) (citing Cuyler v. Adams , 449 U.S. 433, 438–42, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981) ). The court of appeals in this case held that the trial court erred in failing to grant Appellant relief under the IADA, because the State did not try him within the prescribed period, and remanded the causes to the trial court for dismissal. Lasker v. State , 577 S.W.3d 583, 595 (Tex. App.—Houston [1st Dist.] 2019).

Article III of the IADA sets out a mechanism by which the inmate, upon learning that a detainer has been imposed, may force the prosecuting authority in another state that has filed charges against him to bring him to that state and try him on those charges.² When a detainer has been lodged, the corrections official where the inmate is incarcerated has an obligation to promptly inform him of the detainer and of his right to request "final disposition" of the charges giving rise to the detainer. Article III(c). The inmate may then request such "final disposition" through the corrections official. Article III(a). That request must be "promptly forwarded" to the prosecuting authority, together with a certificate, prepared by the corrections official,

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.

Id.

Once the inmate is returned to the prosecuting authority's state, the prosecutor must bring him to trial within 180 days, "provided 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." Id. And an inmate who is not timely brought to trial under this provision is entitled to have the charges dismissed with prejudice. Article V(c).

In this case, the Appellant claimed that he made a request for final disposition, but he was not tried within 180 days of having "caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction" that request along with the required certificate from the corrections official. Article III(a).

Appellant was incarcerated in a federal penitentiary in California when Waller county placed a detainer on him to answer to a capital murder double-homicide charge. The State essentially conceded that Appellant made a request through the corrections official that was received by the prosecuting authority on February 8, 2013.³ If that request was sufficient to trigger the 180 period, then the State was obligated to put Appellant to trial by August 7, 2013, absent some legitimate tolling event.

In the trial court, the State made two arguments why it should not be bound to this date. First, it argued that Appellant did not properly trigger Article III(a)'s 180-day trial period because the corrections official's certificate left out some of the required information, namely, Appellant's parole status. Second, the State argued that the trial court essentially granted a continuance for good cause during a hearing on June 4, 2013, in order to appoint Appellant counsel, which effectively tolled the 180-day period. The court of appeals rejected both arguments.

With respect to the State's first argument, the court of appeals referenced ample case authority, including several courts of appeals opinions from this state, for the proposition that an inmate who channels his request through the appropriate corrections official has done everything within his power to notify the prosecuting authority and court of his desire for a speedy final disposition, and he cannot be held responsible to any technical deficiency in the corrections official's certificate. Lasker , 577 S.W.3d at 592–93.⁴ Article III(c) specifically requires the inmate to channel his request through the corrections official; at the same time, it gives him no control over the reliability of the corrections official in subsequently performing that function under the IADA. Article IX of the IADA expressly provides that it "shall be liberally construed so as to effectuate its purposes." Because the failure to expeditiously try inmates who are incarcerated in other states "produce[s] uncertainties which obstruct programs of prisoner treatment and rehabilitation[,]" it is the stated purpose of the IADA "to encourage the expeditious and orderly disposition" of charges in those states. It is therefore arguable that, so long as the prosecuting authority and appropriate court actually receive, and therefore have notice of, the inmate's request for final disposition from the corrections official, any slight deficiency in the certificate should not operate to block the inception of the 180-day period.⁵

But another express purpose of the IADA is to "provide ... cooperative procedures" for the expeditious resolution of outstanding charges for inmates whose correctional status may be adversely affected. Article I.⁶ The State may have a valid point that, before the IADA procedures may truly be said to be "cooperative," they must be strictly construed to assure adequate notice to the prosecuting authority so that it may reach an informed decision whether it is worth the effort to bring the inmate back for trial. And the inmate's parole status is certainly a material consideration in this calculus.

Here, the certificate of the corrections officer left this part blank. Even a notation that parole status was "not applicable" in the federal correctional system (assuming that is accurate) would have been more informative to the prosecuting authority than leaving those portions altogether unanswered. Was the certificate that is to accompany the inmate's request sufficient to trigger the 180-day deadline for prosecution in the receiving state under these circumstances? We would do well to address this contention.

The court of appeals rejected the State's second argument because it did not construe what the trial court did at the June 4th hearing to constitute the granting of a continuance. Neither the Appellant, who was not yet even represented by counsel, nor the State filed a formal motion for continuance prior to June 4th, or asked for one orally, and the trial court did not announce on the record that it was granting a continuance, either on motion of a party or sua sponte .⁷ "In fact," the court of appeals accurately observed, "the word ‘continuance’ does not appear anywhere in the reporter's record of the hearing." Lasker , 577 S.W.3d at 594. And, indeed, at that juncture there were no docket settings—even for pre-trial hearings, much less for trial itself—for the trial court to continue.

Appellant now argues that, if the State had wanted to invoke the "necessary or reasonable continuance" proviso of Article III, it should have first requested the trial court to set a trial date within Article III's 180-day period, and then either 1) sought a continuance itself before the expiration of that period "for good cause shown in open court," or 2) forced the Appellant to seek one. Maybe.

But even if I agreed with the court of appeals' conclusion with respect to Article III(a)'s continuance proviso, I would still grant discretionary review in this case on our own motion. This Court has "consistently held that a first-tier appellate court should reject an appellant's claim of reversible error on direct appeal so long as the trial court correctly rejected it ‘on any theory of law applicable to the case,’ even if the trial court did not purport to rely on that theory." State v. Esparza , 413 S.W.3d 81, 85 (Tex. Crim. App. 2013) (citing and quoting George E. Dix & John M. Schmolesky, 43A TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 53:111, p. 1108 (3d ed. 2011) (characterizing this as "[t]he traditional and well-established rule"). Here, there is a theory of law applicable to the case that the court of appeals seems not to have considered, but which it should have before reversing Appellant's conviction under the IADA.

Article VI(a) of the IADA provides:

(a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand

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