Johnson v. State

• Decision Date: 07 June 1995
• Docket Number: No. 09-93-069,09-93-069
• Parties: John Pershing JOHNSON, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 475

900 S.W.2d 475

John Pershing JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 09-93-069 CR.

Court of Appeals of Texas Beaumont.

June 7, 1995.

Patricia Nasworthy Saum, Houston, for appellant.

Michael Little, Dist. Atty., Steve Greene, Asst. Dist. Atty., Liberty, for State.

Before WALKER, C.J., and BURGESS and BROOKSHIRE, ^* JJ.

OPINION

BURGESS, Justice.

In 1986, a jury convicted John Pershing Johnson of delivery of a controlled substance, cocaine, in an amount exceeding 400 grams ¹, and assessed punishment at twenty years' confinement in the Texas Department of Corrections and a $20,000 fine. Johnson's conviction was reversed by the Court of Criminal Appeals for punishment charge error in instructing the jury on the effect of parole; so-called "Rose error". ² Johnson v. State, 737 S.W.2d 923 (Tex.App.--Beaumont 1987), reversed in an unpublished opinion, on remand, 774 S.W.2d 276 (Tex.App.--Beaumont 1989), reversed, 797 S.W.2d 658 (Tex.Crim.App.1990). On September 21, 1987, the Circuit Court of Pulaski County, Virginia, convicted appellant of cocaine distribution. By the time the Texas Court of Criminal Appeal's mandate issued November 9, 1990, Appellant was already serving a 20-year sentence in the Virginia Department of Corrections. On January 16, 1992, the Liberty County District Attorney's Office was served with a request for disposition under the Interstate Agreement on Detainers. Johnson was delivered to the sheriff's custody in Liberty County on February 14, 1992. Several months later, Johnson moved for dismissal of the indictment because he was not tried within 180 days of his request for disposition. The motion was denied after an evidentiary hearing held November 13, 1992. The punishment phase of the trial was retried before the bench on January 6, 1993. The court sentenced Johnson to sixty years' confinement in the Texas Department of Criminal Justice, Institutional Division, and a $5,000 fine. This sentence was cumulated on the Virginia sentence. Appellant raises five points of error.

Appellant's first point complains the trial court erred in refusing to dismiss the indictment with prejudice in violation of the Interstate Detainer Act. TEX.CODE CRIM.PROC.ANN. art. 51.14 (Vernon 1979), entitled, "Interstate Agreement on Detainers," contains the following pertinent provisions:

ARTICLE III

(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 ³, he shall be brought to trial within 180 days after he shall have caused 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; ....

....

(c) The warden, commissioner of corrections, or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information, or complaint on which the detainer is based.

(d) Any request for final disposition made by a prisoner pursuant to Paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations, or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed....

ARTICLE IV

(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; ....

ARTICLE V

....

(b) The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:

....

(2) a duly certified copy of the indictment, information, or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made.

(c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information, or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information, or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.

(d) The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations, or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction....

Because the Interstate Agreement on Detainers is an interstate compact approved by the United States Congress and is, therefore, a federal law, it is subject to federal rather than state construction. Cuyler v. Adams, 449 U.S. 433, 438, 101 S.Ct. 703, 66 L.Ed.2d 641, 647 (1981). Whether it is a member state attempting to obtain an incarcerated prisoner from another member state or a prisoner demanding speedy disposition of certain charges pending in another member state, the provisions of the Agreement are triggered only when a "detainer" is filed with the custodial (sending) state by another state (receiving) having untried charges pending against the prisoner. United States v. Mauro, 436 U.S. 340, 343, 98 S.Ct. 1834, 56 L.Ed.2d 329, 336 (1978).

While the denial of a defendant's motion to dismiss an indictment under the Interstate Agreement on Detainers is a question of law reviewed de novo, the factual findings underlying the decision are reviewed on a clearly erroneous standard. United States v. Hall, 974 F.2d 1201, 1204 (9th Cir.1992). The testimonial and documentary evidence indicates the State of Texas never issued a detainer for the offense of Delivery of a Controlled Substance: Cocaine, Cause Number 16,133. The sole documentary exhibit introduced into evidence during the hearing on punishment indicates that the detainer filed by Liberty County authorities was for the offense of "Delivery of Marijuana of less than 2 thousand pounds but not [sic] more than 2 hundred pounds." Since no detainer was ever filed by Liberty County authorities with regard to the Delivery of Cocaine case, the provisions of article 51.14 were never triggered. A clear reading of the pertinent provisions of article 51.14 set out above supports this construction. Clearly the only "indictments, informations, or complaints" which are subject to dismissal with prejudice are those "on the basis of which a detainer has been lodged." The lone exception, contained in Article V, paragraph (d), permits the receiving state to prosecute non-detainer pending charges "arising out of the same transaction" as those pending charges which form the basis of the detainer. There is no evidence that the Delivery of Marijuana charge for which the detainer was issued arose out of the same transaction as the Delivery of Cocaine charge.

Based upon the record before us as well as the applicable federal case law, we cannot say that the trial court clearly erred in denying appellant's motion to dismiss the Delivery of Cocaine indictment. The record does indicate that the Delivery of Marijuana indictment was dismissed. However, without a detainer issued on the Delivery of Cocaine charge, appellant cannot avail himself of the provisions contained in article 51.14. ⁴ This point of error is overruled.

Appellant's next point reads: "The trial court erred in proceeding on a new punishment hearing instead of a new trial on guilt and punishment." The sole contention is that Article I, § 16 of the Texas Constitution provides that no ex post facto law, or retroactive law can stand. Hence, appellant avers TEX.CODE CRIM.PROC. art. 44.29(b) (Vernon Supp.1995) is unconstitutional. We disagree.

Appellant concedes in his brief that the Court of Criminal Appeals in Grimes v. State, 807 S.W.2d 582 (Tex.Crim.App.1991), held that the application of article 44.29(b) does not punish as a crime an act previously committed which was innocent when done; it does not make more burdensome the punishment for a crime after its commission; it does not deprive the appellant of any defense available according to law at the time the act was committed. Therefore, we hold that the article is not violative of the ex post facto clause of the United States Constitution or the ex post facto provision of the Texas Constitution.

Appellant further argues that because he was convicted in Virginia subsequent to his original trial but prior to his new punishment hearing, evidence of the Virginia offense and conviction was wrongly introduced because this evidence makes more burdensome the appellant's punishment and deprives him of defenses. But this very argument was rejected in Grimes. In Grimes, 807 S.W.2d at 588, in footnote 9, the Court rejected an argument that was based on TEX. GOV'T CODE ANN. § 311.022 (Vernon 1988). The Court reasoned that the Texas Government Code provided in substance that a statute is presumed to be prospective in its operation unless...