Davis v. State
Davis v. State
Opinion of the Court
OPINION
delivered the opinion for a unanimous Court.
The appellant was convicted by a jury of the offense of felony escape. His punishment was enhanced by two prior felony convictions, and the jury assessed the minimum enhanced sentence of twenty-five years in the penitentiary. On appeal, he argued, inter alia, that the State failed to bring him to trial within the time limits prescribed by the Interstate Agreement on Detainers Act (IADA), and that the trial court therefore erred in failing to dismiss the indictment against him with prejudice in accordance with the remedial terms of that statute.
PROCEDURAL POSTURE
The appellant escaped from the custody of the Dallas County Jail while being treated at Parkland Hospital, stole a taxicab, and drove it north to Oklahoma. After leading Oklahoma lawmen on a dangerous and protracted high speed chase, he was apprehended, prosecuted, and imprisoned there. Subsequently, the Dallas County District Attorney’s Office invoked Article IV of the IADA to bring the appellant back to Texas for prosecution for the felony escape. Subsection (c) of Article IV provides:
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.5
The appellant arrived in Dallas County for prosecution on June 18, 2008. A trial date was set for October 6, 2008, ten days before the 120 day time limit under Article IV, Section (c) would expire (October 16, 2008) absent a continuance. Counsel for the appellant obtained an extension until October 13th, on which date the trial court granted an agreed motion to amend the original indictment. The next day, October 14th, in open court, the State requested a continuance on account of the hospitalization of its chief witness. The trial court made an express finding on the record that good cause was shown and granted the State a continuance until November 4, 2008. In the meantime, on October 31, 2008, for reasons unclear from the record, the State re-indicted the appellant.
The next setting for which there are reporter’s notes in the record was not November 4th, however, but December 1, 2008, the day the jury was selected.
[DEFENSE COUNSEL]: Your Hon- or, can I make one more quick record on something else?
THE COURT: Yes.
[DEFENSE COUNSEL]: I don’t know if, Your Honor, last time this case was set for trial noted on the docket sheet my objection to a continuance being granted. We did not have a court reporter.
THE COURT: I don’t know if I did or not but you did make a — you did object to me granting the State’s continuance. That’s correct.
[DEFENSE COUNSEL]: And I just wanted to say I specifically objected on the grounds that a continuance should be denied given the fact that it was premised upon their reindictment. I objected to that. They’ve had all this time to reindict. They shouldn’t have brought him back if they plan on rein-dicting him. I believe this is way outside the time limits set forth on the Interstate Agreement on Detainers Act.
THE COURT: Okay. Very well.
It thus appears that the trial court granted another continuance at the State’s request, in open court, and over the appellant’s objection, on November 4, 2008. But, other than the above colloquy, which suggests that the State sought this second continuance because of its re-indictment of the appellant, the reporter’s record does not reflect why the trial court continued the trial until December 1, 2008, a date well beyond the expiration of the 120 day time limit of Article IV, Section (c), of the IADA.
The jury found the appellant guilty of first degree felony escape.
Once appellant made his objection under article four of the IADA, the burden then shifts to the trial court to make a determination on the record of good cause shown to justify the continuance. The trial court failed in this respect. Nothing in the record, other than an oblique statement in defense counsel’s argument quoted above, shows why the continuance was granted or how the State provided the trial court with good cause to continue the case. Accordingly, the trial court erred in granting the November 4, 2008 continuance. By improperly continuing the trial, the court caused appellant’s trial to begin outside*75 the 120-day window provided under the IADA.10
Because the IADA mandates dismissal of a charging instrument with prejudice under these circumstances,
In its petition for discretionary review, the State maintains that the court of appeals’s disposition of the appellant’s IADA claim was premature. If it was indeed the trial court’s burden to make sure that a good cause determination was made on the record, as the court of appeals held, and the trial court simply failed to do so, then the trial court committed remediable error in contemplation of Rule 44.4 of the Rules of Appellate Procedure. The court of appeals should not have ordered the radical remedy of dismissal of the indictment with prejudice, argues the State, without at least first remanding the cause to the trial court for that court to make a retrospective record of the good cause, if any, that convinced it on November 4, 2008, to grant the State’s second requested continuance. Once the record could be supplemented in this way, the State urges, the court of appeals could reconsider the appellant’s IADA point of error. In our view, however, a remand to the trial court is ultimately unnecessary, as we shall now explain.
ANALYSIS
The court of appeals held that the IADA placed a burden on the trial court, once the appellant objected to the second continuance, to make sure that the record reflected the State’s proffer of good cause (if any). If we delve no further into the case than this, the question for discretionary review simply boils down to whether the trial court’s failure to make such a record should be regarded as remediable for purposes of Rule 44.4. On its face, Rule 44.4 authorizes a remand to the trial court only when the record is inadequate to present a claim due to some “erroneous action or failure or refusal to act” on the part of the trial court, as opposed to one of the parties.
In his reply brief, however, the appellant maintains that the court of appeals erred to characterize the absence of a reporter’s record of the November 4th hearing as a “failure or refusal to act” on the trial court’s part, in contemplation of Rule 44.4. While Article IV, Subsection (c) of the IADA requires that any showing of good cause be made, inter alia, “in open court,” the appellant argues, it does not require that the showing necessarily be made on the record, much less does it explicitly assign a burden to the trial court to ensure that it is. The trial court obviously had a duty under the IADA to deny any motion for continuance that was not made “in open court,” or in the absence of good cause, the appellant claims; but any failure to comply with those duties would not be remediable under Rule 44.4. Because the IADA places no burden on the trial court to make sure that any showing of good cause is memorialized, by assuring that it is spread on the record, the appellant insists, there is no trial court error in that regard to be remedied. The appellant would have us assign the burden of making a record of the November 4th hearing, instead, to the State, as the beneficiary of the motion for continuance. Because the State took no action to make sure that the court reporter was present to transcribe any showing of good cause in support of its motion for continuance, the appellant asserts, the lack of such a showing on the record should operate to its detriment. The court of appeals rightly ordered the dismissal of the indictment, not because (as it held) the trial court failed to put the hearing on the record, but because the State did. And in that event, the appellant concludes, Rule 44.4 should not apply.
So we are squarely confronted with the question: What was the erroneous action or failure to act in this case, and whose error was it? Did the error lie in the trial court’s granting of the State’s second motion for continuance in the absence of a showing of good cause? The colloquy between the appellant and the trial court suggests that the State did, in fact, make a proffer of good cause — the re-indictment of the appellant — and that the appellant simply believed that its proffer was inadequate. And yet, at least one federal appellate court has held that re-indictment may well constitute good cause for a continuance, at least under certain circumstances, under the IADA.
But we agree with the appellant that there is nothing in the language of Article IV, Section (c) of the IADA that imposes a burden on the trial court, ex
But we cannot simply let the matter end there. The appellant insists that, if the trial court had no burden to make a record of the November 4th hearing, then the deficiency in the record must work against the State, as the party that moved for the continuance. With this proposition we disagree. Indeed, even if Rule 13,1 does impose a preliminary burden on the trial court to ensure the presence of a court reporter at all proceedings, our case law also imposes an additional, independent burden on the appealing party to make a record demonstrating that error occurred in the trial court.
From defense counsel’s colloquy with the trial court, quoted above, it appears that the State proffered the re-indictment as its good cause. Because this is all the record reveals about the circumstances of the re-indictment, we cannot tell whether there may have been justification for the trial court to grant the State additional time to prepare. On this state of the record, we cannot say that the trial court abused its discretion to find that the continuance was “necessary or reasonable” for purposes of Article IV, Section (c). We have consistently held that it is the appealing party — here, the appellant rather than the State — who must bear the consequences of such a deficiency in the record.
CONCLUSION
The failure, then, is neither the trial court’s nor the State’s, but the appellant’s. We hold that the record is insufficient to establish that the provisions of the IADA were violated because it does not demonstrate that the trial court abused its discretion to grant the State’s November 4th request for a continuance under Article IV, Section (c). The court of appeals erred to order the dismissal of the indictment with prejudice. The judgment of the court of appeals is, accordingly, vacated and the cause is remanded to that court so that it can address the appellant’s remaining points of error on appeal.
. Tex.Code Crim. Proc. art. 51.14.
. Davis v. State, 2010 WL 2332326, No. 05-08-01683-CR (Tex.App.-Dallas, delivered June 11, 2010) (not designated for publication).
. Tex.R.App. P. 44.4. This provision reads:
(a) Generally. A court of appeals must not affirm or reverse a judgment or dismiss an appeal if:
(1) the trial court’s erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals: and
(2) the trial court can correct its action or failure to act.
(b) Court of Appeals Direction if Error Remediable. If the circumstances described in (a) exist, the court of appeals must direct the trial court to correct the error. The court of appeals will then proceed as if the erroneous action or failure to act had not occurred.
. Tex.R.App. P. 66.3(b).
. Tex.Code Crim. Proc. art. 51.14, Article IV(c).
. The docket sheet reflects that the trial court convened on November 4th and entered only the cryptic notation: "12-1-08 TRIL”. The court of appeals observed that "[t]he docket sheet in the case indicates that the case was
. See Davis v. State, supra, at *2 n. 2 (“Even if the State's first motion for continuance based on the hospitalization of the complainant was properly granted, appellant's trial occurred outside the 120-day deadline for proceeding to trial if the court erred in granting the November 4, 2008 continuance. From June 18, 2008 to December 1, 2008, 166 days passed. Excluding from this number the seven days allowed to defense counsel in October and the twenty days allowed to the State based on the complainant's hospitalization, the number of days from the appellant’s arrival in Dallas County to his trial date is 139.”)
. Tex. Penal Code § 38.06(a) & (e)(2).
. Tex. Penal Code § 12.42(d).
. Davis v. State, supra, at *2.
. See Tex.Code Crim. Proc. art. 51.14, Article V(c) ("in the event that an action on the indictment ... on the basis of which the de-tainer has been lodged is not brought to trial within the period provided in ... Article IV hereof, the appropriate court of the jurisdiction where the indictment ... 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.”).
. Davis v. State, supra, at *3.
. Id.
. Tex R.App. P. 44.4(a)(1).
. State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App. 2006); LaPointe v. State, 225 S.W.3d 513, 522 (Tex.Crim.App. 2007).
. LaPointe v. State, supra; Spence v. State, 758 S.W.2d 597, 599-600 (Tex.Crim.App. 1988).
. King v. Brown, 8 F.3d 1403, 1409-10 (C.A.9 1993).
. Tex. Gov’t Code § 52.046(a)(1).
. Tex.R.App. P. 13.1(a). See 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 43.302 (2d ed. 2001), at 575 (Rule 13.1 "appears to eliminate any prior need for a request"). At least one court of appeals, in an en banc plurality opinion, has held that Rule 13.1 is "void” because it modified the substantive law, echoed in Section 52.046(a)(1) of the Government Code, that required the parties to request attendance of the court reporter. Polasek v. State, 16 S.W.3d 82, 89 (Tex.App.Houston [1st Dist.] 2000, pet. ref'd). Professors Dix and Dawson have questioned the viability of this holding, Dix & Dawson, supra, and another court of appeals has declined to follow it. Tanguma v. State, 47 S.W.3d 663, 671 (Tex.App.-Corpus Christi 2001, pet. ref’d). This Court has yet to weigh in on this question, and, given our ultimate disposition, we need not do so today.
. Tanguma v. State, supra.
. Newman v. State, 331 S.W.3d 447, 450 (Tex.Crim.App. 2011).
. See id. (“This record also does not show whether appellant objected in the event that the court reporter was not present to transcribe” a critical speedy trial hearing); Valle v. State, 109 S.W.3d 500, 507-509 (Tex.Crim.App. 2003) (though court reporter's presence is "automatic” under Rule 13.1, rather than upon request, appellant must still object to failure of court reporter to transcribe bench conference before predicating appellate error
. See Amador v. State, 221 S.W.3d 666, 675 (Tex.Crim.App. 2007) (though State had burden to show reasonable suspicion at motion to suppress hearing, "[ijt was ... appellant's burden to bring forward a record on appeal sufficient to show that the trial court erred in his ruling on the motion to suppress”).
Concurring Opinion
filed a concurring opinion.
From the record, it appears that, four and one-half months after appellant arrived in Dallas County after extradition pursuant to IADA and with the IADA clock ticking, the state chose to reindict appellant and to request a continuance because of that reindictment. The trial court granted the state’s request, thereby pushing the beginning of the trial well past the time limits of the IADA.
In this Court, the state complains that the court of appeals erroneously placed on the trial court the burden of making a record of its reasoning in finding good cause that justified a second continuance. Because the second state continuance appears to have been granted because of a new indictment, determining whether the allegations in the new indictment were sufficiently different so as to necessarily require reworking of the state’s case requires comparison of the two indictments. The burden of making a record that per
I therefore join the opinion of the Court.
Reference
- Full Case Name
- Jason Shane DAVIS, Appellant, v. the STATE of Texas
- Cited By
- 33 cases
- Status
- Published