Johnson v. State

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effect of parole; so-called “Rose error”.2 Johnson v. State, 737 S.W.2d 923 (Tex.App.—Beaumont 1987), reversed, in an unpublished opinion, on remand, 774 S.W.2d 276 (Tex.App.—Beaumont 1989), reversed, 797 S.W.2d 658 (Tex.Crim.App.1990).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 sheriffs 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 evi-dentiary hearing held November 13, 1992. *478The 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/PboC. 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 prisoner3, 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; ....

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(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

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

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(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 *479more 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. Cwyler v. Adams, 449 U.S. 438, 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 de-tainer 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 ease 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.PR0C. 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 *480clause 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 expressly made retrospective. Section 311.022 does not prohibit application of Article 44.29(b) to cases that were on appeal on the date of enactment since Article 44.29(b) applied prospectively in the trial courts following remand from the Court of Criminal Appeals or from the Courts of Appeals. The Court held that absent an express legislative intent to the contrary, procedural statutes control litigation from their effective date and they apply to both pending and future actions. Point of error two is overruled. See also Collins v. Young-blood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Edüd 30 (1990) (applying Tex.Code Cmm. PROCAnn. art. 37.10(b)).

Appellant asserts in point of error three the trial court erred in sentencing the appellant to a term of years more than his original sentence. Appellant argues there exists a limitation on the power of a sentencing authority to increase the sentence after recon-viction following a new trial. Appellant argues the Due Process Clause of the Fourteenth Amendment prevents increased sentences when that increase is motivated by vindictiveness on the part of the sentencing judge. Appellant relies on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) which states at 395 U.S. at 725, 89 S.Ct. at 2080, 23 L.Ed.2d at 669:

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

In Pearce, the Supreme Court held neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction. Id. at 723, 89 S.Ct. at 2079, 23 L.Ed.2d at 668. The Court did, however, conclude that the Due Process Clause of the Fourteenth Amendment requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence that he receives after a new trial. Whenever a judge imposes a more severe sentence upon a defendant after a new trial, the record must affirmatively show objective information or facts concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. “The factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” Id. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670.

Here, the record reflects that subsequent to the first sentencing proceeding, appellant was convicted in the State of Virginia for the offense of' distributing cocaine. This conviction affirmatively appears in the record and the trial court heard this evidence at the second sentencing proceeding.

Moreover, in Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984), the Supreme Court held that after a defendant’s successful appeal, a sentencing authority may justify an increased sentence where the increased sentence was based on an intervening conviction even for conduct preceding the first sentence. The Court reasoned that an increased sentence would be correct when relevant conduct or relevant events had occurred subsequent to the origi*481nal sentencing proceedings. Id. at 571-572, 104 S.Ct. at 3224, 82 L.Ed.2d at 435. In Wasman, Chief Justice Burger wrote:

We conclude that any language in Pearce suggesting that an intervening conviction for an offense committed prior to the original sentencing may not be considered upon sentencing after retrial, is inconsistent with the Pearce opinion as a whole. There is no logical support for a distinction between “events” and “conduct” of the defendant occurring after the initial sentencing insofar as the kind of information that may be relied upon to show a nonvindictive motive is concerned.

Id.

Appellant has totally failed to prove actual vindictiveness. The trial court was well within its powers and prerogatives in assessing the increased punishment. This point is overruled.

Next, appellant avers the trial court erred in declaring the Texas sentence was to begin after his sentence in Virginia had been served. The version of Tex.Code Crim.Proc. Ann., art. 42.08 in effect at the time of the commission of the offense prohibited the cu-mulation of a Texas sentence with that of a sister state or federal conviction. Hernandez v. State, 748 S.W.2d 324, 326 (Tex.App.—Dallas 1988, pet. refd). However, the statute was amended in 1987, after the commission of the offense, but prior to the cumulation order. The amendment deleted language referring to each sentence being confinement in an institution operated by the Department of Corrections, effectively allowing cumulation with non-Texas sentences. Appellant argues the present cumulation order violates the constitutional prohibition against ex post facto enactments and relies upon Hernandez. This reliance is misplaced. In Hernandez, both the offense and cumulation order were before the 1987 amendment. Here, only the offense occurred prior to the 1987 amendment. The analysis of article 44.29(b) contained in Grimes v. State, 807 S.W.2d at 583 applies to article 42.08 in this situation. Appellant’s fourth point of error is overruled.

The last point of error contends the conduct of trial counsel denied appellant the effective assistance of counsel and a fair trial. A complaint of ineffective assistance of counsel may be raised in a motion for new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim.App.1993). The record reflects a motion for new trial raising this issue was filed and a specific request was made by appellate counsel for a hearing on the motion. Apparently no hearing was conducted as we have no statement of facts from any such hearing. Furthermore, there is no complaint by appellant of the failure to conduct an evidentiary hearing on this motion.

The proper standard for determining claims of ineffective assistance of counsel is the standard adopted in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court adopted a two-pronged analysis for claims of ineffective assistance in the guilt-innocence stage of the trial. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. First, appellant must show that counsel performed deficiently. Id. Second, appellant must show the .deficient performance prejudiced the defense. Id. Appellant must establish these two prongs by a preponderance of the evidence. Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App.1985). When considering effectiveness of counsel in the punishment phase, the standard is whether the defendant received reasonably effective assistance of counsel. Ex parte Cruz, 739 S.W.2d 53, 58 (Tex.Crim.App.1987); Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980).

In the course of establishing the Strickland prongs, appellant must additionally rebut the presumption that counsel performed competently. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Appellant can rebut this presumption by showing counsel’s actions were unreasonable under prevailing professional norms and were not sound trial strategy. Id. Furthermore, the record must support an ineffectiveness claim. Johnson v. State, 691 S.W.2d 619, 627 (Tex.Crim.App.1984), cert. denied, 474 U.S. 865, 106 S.Ct. 184, 88 L.Ed.2d 152 (1985). When the record contains no evidence to show the reasons for trial counsel’s allegedly *482ineffective acts or omissions, we cannot conclude that counsel performed deficiently. Jackson, 877 S.W.2d at 771. A silent record does not require us to speculate on the reasons behind counsel’s decisions. Id. Isolated errors alone do not indicate ineffective assistance. Bridge v. State, 726 S.W.2d 668, 571 (Tex.Crim.App.1986). No Texas court defines the right to effective counsel as the right to error-free counsel. Hernandez v. State, 726 S.W.2d 63, 58 (Tex.Crim.App.1986). Lastly, all of the above standards are applied by examining, without hindsight, the totality of the representation. Strickland, 466 U.S. at 688-689, 104 S.Ct. at 2064, 80 L.Ed.2d at 694; Butler v. State, 716 S.W.2d 48, 64 (Tex.Crim.App.1986).

Appellant raises three specific complaints with regard to trial counsel’s representation, viz:

1. Trial counsel faded to file a writ of mandamus to force the trial court to dismiss the indictment for a violation of the Interstate Detainer Act.

2. Trial counsel faded to advise appedant that the trial court could consider appellant’s convictions in Virginia which has become final after the appeal of the instant case and that the trial court could consider the entire range of punishment on retrial.

3. Trial counsel faded to include in the record as a bdl of exception Defendant’s Exhibit Number One, an eight page affidavit of appedant, and Defense Exhibit Two, a three page agreement between appedant and the U.S. Department of Justice, which exhibits were not allowed into to [sic] evidence by the trial court.

With regard to adeged deficiency number one, appedant argues that if trial counsel had sought a writ of mandamus, “the issue regarding the violation of the Interstate Detainer Act could have been decided prior to the imposition of any sentence and more expeditiously than an appeal.” Appedant engages in rather specious reasoning in that he equates the mere initiating of mandamus proceedings with the granting of a mandamus grounded in article 51.14 redef. Such speculation does not satisfy appedant’s burden to prove deficient conduct by a preponderance of the evidence.

As for the second alleged deficiency, the record provides no evidence as to what appellant and his trial counsel discussed as to the status of the Virginia conviction, or as to the punishment range appedant was exposed to on remand. Such evidence edeited at a motion for new trial hearing could possibly have aided appedant on this issue but, as previously noted, the record indicates no hearing took place.

Under the third adeged deficiency, appedant argues the fodowing:

Since the exhibits were not included in the record on appeal, Appedant is denied the right to appeal the court’s ruling excluding such exhibits. Had these exhibits been included in the record, there is a reasonable probabidty the appedant could show how the evidence was relevant to the trial court’s decision on punishment and would have resulted in a substantiady lesser sentence.

Again, an evidentiary hearing on the motion for new trial with the exhibits in question in evidence would have at least placed the documents before us. Instead, we have nothing with which to make any determination as to both deficient conduct and prejudice to the defense. Appedant does not even hint at how the documents, if present in the record before us, would have shown a reasonable probabidty that' appedant’s sentence would have been less severe. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. We reiterate that it is ap-pedant’s burden to rebut the presumption that trial counsel performed competently, and that a sdent record does not require us to speculate on the reasons behind trial counsel’s decisions. Jackson, 877 S.W.2d at 771. We find that appedant has faded to estabdsh either of the two Strickland prongs. Point of error five is overruled. The judgment and the sentence of the trial court are affirmed.

AFFIRMED.

. On October 18, 1984, Johnson flew a plane carrying 700 pounds of nearly pure cocaine into Cleveland, Texas. The transferee was a Drug Enforcement Administration agent.

. Rose v. State, 752 S.W.2d 529 (Tex.Crim.App. 1987).

. All emphasis in this opinion is by the author unless otherwise indicated.

. The State argues that the IAD does not apply because appellant was not tried on “an untried indictment.” We need not reach that argument. The State also argues that Article 51.14 is unconstitutional because it violates the separation of powers doctrine expressed in Tex Const. Art. II, § 1, in the same manner applied to the Speedy Trial Act by the Court of Criminal Appeals in Meshell v. State, 739 S.W.2d 246 (Tex.Crim.App. 1987). This Court rejected this argument in Engle v. Coker, 820 S.W.2d 247 (Tex.App.—