Walker v. State

• Citation: 201 S.W.3d 841
• Decision Date: 19 July 2006
• Docket Number: No. 10-04-00313-CR.,10-04-00313-CR.
• Parties: Billy Dean WALKER, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 841

201 S.W.3d 841

Billy Dean WALKER, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 10-04-00313-CR.

Court of Appeals of Texas, Waco.

July 19, 2006.

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Walter M. Reaves, Jr., West, for Appellant.

John W. Segrest, McLennan County Criminal Dist. Atty., Waco, for Appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

LEAD OPINION

FELIPE REYNA, Justice.

A jury convicted Billy Dean Walker, Jr. of six counts of indecency with a child and assessed his punishment at twenty years' imprisonment and a $10,000 fine on each count. Walker contends in five points that: (1) 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 from Tennessee under article III of the Interstate Agreement on Detainers Act; (2) he received ineffective assistance of counsel because counsel failed to request such a dismissal; (3) the court erred by ordering his Texas sentences to run consecutively with his Tennessee sentences; (4) the court abused its discretion by admitting evidence of extraneous offenses; and (5) his right to jury trial and his right to due process were violated under Apprendi v. New Jersey and its progeny because the jury was not asked to determine whether his Texas sentences should run consecutively with his Tennessee sentences. We will affirm.

I. The Interstate Agreement on Detainers Act

Walker contends in his first point 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 of the Interstate Agreement on Detainers Act. The State provides a five-part response, contending: (1) the IAD does not apply because there is nothing in the record to indicate that Texas authorities filed a detainer with Tennessee authorities; (2) the record does not reflect that Walker properly served the Texas prosecutor with a request to be transferred under the IAD; (3) Walker failed to preserve this issue for appellate review because he failed to request a dismissal in the trial court;¹ (4) there is nothing in the record to indicate that his trial was not continued "for good cause"; and (5) article III of the IAD is unconstitutional.

Article III of the IAD "basically . . . gives a prisoner the right to demand a trial within 180 days." Alabama v. Bozeman, 533 U.S. 146, 151, 121 S.Ct. 2079, 2083, 150 L.Ed.2d 188 (2001). This 180-day time period "does not commence until the prisoner's request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him." Fex v. Michigan, 507 U.S. 43, 52, 113 S.Ct. 1085, 1091, 122 L.Ed.2d 406 (1993).

We conduct a de novo review of the legal question of whether there has been compliance with the requirements of the IAD. State v. Miles, 101 S.W.3d 180, 183 (Tex. App.-Dallas 2003, no pet); Lindley v. State, 33 S.W.3d 926, 930 (Tex.App.-Amarillo 2000, pet. ref'd); State v. Sephus, 32 S.W.3d 369, 372 (Tex.App.-Waco 2000, pet. ref'd). We review any factual findings underlying the issue of compliance with the IAD under a clearly erroneous standard. Id.

II. The Detainer Was "Lodged" Against Walker

The State contends that the provisions of article III do not apply because there is nothing in the record to indicate that Texas authorities filed a detainer with Tennessee authorities. We disagree.

Subdivision (a) of article III provides in pertinent part:

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, 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; 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.

TEX.CODE CRIM. PROC. ANN. art. 51.14, art. III(a) (Vernon 1979).

Thus, article III is invoked only when "a detainer has been lodged against [a] prisoner" in another state by Texas authorities because of an "untried indictment, information, or complaint" pending in Texas. Id.; see New York v. Hill, 528 U.S. 110, 112, 120 S.Ct. 659, 662, 145 L.Ed.2d 560 (2000); Miles, 101 S.W.3d at 183. A detainer is "lodged" when it is filed with the institution holding the prisoner. See Hill, 528 U.S. at 112, 120 S.Ct. at 662; Miles, 101 S.W.3d at 183-84.

The clerk's record contains "Agreement on Detainers" Forms II, III, IV, and V-B. These documents were filed by the district clerk on November 18, 2003, together with a cover letter from the warden of the Tennessee prison where Walker was incarcerated before his transfer to Texas.

Item 8 of Form III refers to the following "[d]etainers currently on file against this inmate" (Walker):

                  Indecency W/ A Child    6 cts   Indictment #83-3678L
                  Warrant #2002-1076-C
                

Thus, the IAD paperwork delivered to Texas authorities by Tennessee prison officials states that there was at that time a detainer on file with the Tennessee prison for the six-count indictment under which Walker ultimately was tried and convicted in Texas.

Accordingly, article III was invoked in Walker's case because Texas authorities lodged a detainer against him with Tennessee prison officials. See TEX.CODE CRIM. PROC. ANN. art. 51.14, art. III(a); Hill, 528 U.S. at 112, 120 S.Ct. at 662; Miles, 101 S.W.3d at 183-84.

III. Walker Complied With the IAD

The State contends that Walker cannot prevail on his claim because the record does not reflect that Walker properly served the Texas prosecutor with a request to be transferred under the IAD.

The prisoner bears the burden of demonstrating compliance with the procedural requirements of article III. Lindley, 33 S.W.3d at 930 (citing United States v. Henson, 945 F.2d 430, 434 (1st Cir. 1991)). The prisoner may comply by either: (1) delivering his IAD transfer request to the warden where he is imprisoned to be forwarded to the court and prosecuting attorney of the state which lodged the detainer against him; or (2) delivering his transfer request directly to the court and prosecuting attorney of that state. See TEX.CODE CRIM. PROC. ANN. art. 51.14, art. III(b) (Vernon 1979); Bryant v. State, 819 S.W.2d 927, 931 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd); Burton v. State, 805 S.W.2d 564, 575 (Tex. App.-Dallas 1991, pet. ref'd).

If the prisoner delivers the transfer request to the warden where he is incarcerated for forwarding, then the prisoner's "only obligation [i]s to show that he notified the appropriate [prison] officials of his desire to [be transferred]." Burton, 805 S.W.2d at 575. Conversely, if the prisoner decides to deliver his transfer request directly to the court and prosecuting attorney of the other state, he is personally responsible to see that the notice is sent by registered or certified mail, return receipt requested, to those authorities. See Bryant, 819 S.W.2d at 931; Burton, 805 S.W.2d at 575; see also TEX.CODE CRIM. PROC. ANN. art. 51.14, art. III(b).

Here, the cover letter accompanying the IAD paperwork clearly reflects that Walker delivered the IAD transfer request to the warden of his Tennessee prison to be forwarded to the Texas court and prosecuting attorney. The warden stated in the cover letter that the IAD paperwork was sent by certified mail, return receipt requested. There is nothing in the record to rebut this statement in the warden's letter.

Accordingly, we hold that Walker satisfied his burden of proving compliance with the requirements of article III. See Henson, 945 F.2d at 434; Lindley, 33 S.W.3d at 930; Burton, 805 S.W.2d at 575.

IV. Walker Failed To Request A Dismissal In The Trial Court

The State next contends that Walker has failed to preserve this issue for appellate review because he failed to request a dismissal in the trial court.

The record reflects that Walker's IAD paperwork was received by Texas authorities on November 18, 2003. This is the date on which the 180-day period began to run. Fex, 507 U.S. at 52, 113 S.Ct. at 1091. However, Walker's trial did not commence until more than 325 days later in October 2004.

Walker arrived back in Texas in February 2004. The docket sheet reflects two trial settings for his case: May 24 and October 11. The record also contains a motion for substitution of counsel filed by Walker on April 20 and granted on that same date. Walker did not file a motion to dismiss. The record is silent regarding whether his attorney agreed to any postponement of his trial date.

In Marin v. State, the Court of Criminal Appeals identified three categories of rights with regard to error preservation.² 851 S.W.2d 275, 279 (Tex.Crim.App.1993).

[O]ur system may be thought to contain rules of three distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request. In the present context, the most important thing to remember about the Texas law of procedural default is that it only applies to the last category.

Id.

The Court of Criminal Appeals has consistently followed this tripartite approach to preservation of error. See, e.g., id.; Jimenez v. State, 32 S.W.3d 233, 235 (Tex. Crim.App.2000); Speth v. State, 6 S.W.3d 530, 533 n. 5 (Tex.Crim.App.1999). This Court...