JASON SHANE DAVIS, Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND; Opinion issued June 11, 2010
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01683-CR
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JASON SHANE DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F08-01154-H
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OPINION
Before Justices Morris, FitzGerald, and Francis
Opinion By Justice Morris
        A jury convicted Jason Shane Davis of felony escape. He complains on appeal that the trial court violated the Interstate Agreement on Detainers Act when it tried him. He further argues the evidence against him is legally and factually insufficient and the trial court erred in failing to charge the jury on a lesser included offense. Concluding the court violated the IADA, we reverse the trial court's judgment and remand the cause with instructions to dismiss the indictment with prejudice.
Factual Background
        Although the record contains no documentation showing the State requested appellant's presence for trial in Dallas County while he was incarcerated in Oklahoma, both parties agree that the State requested and received appellant's presence at trial pursuant to article four of the Interstate Agreement on Detainers Act. Under that provision, the State of Texas had 120 days from appellant's arrival in Dallas County on June 18, 2008 to begin appellant's trial. For good cause shown in open court with appellant or his counsel present, however, the trial court could grant any necessary or reasonable continuance in the case. See Tex. Code Crim. Proc. Ann. art. 51.l4, art. IV(c) (Vernon 2006). The 120-day deadline in appellant's case was October 16, 2008. The case was originally set for trial on October 6, but the defense attorney received an extension to October 13 so he could prepare for a legal specialization exam.
        On October 13, the court held a hearing to address some pretrial matters. On October 14, the State requested and was granted a continuance based on the fact that the complaining witness was hospitalized. Over appellant's objection that the continuance would violate the IADA, the trial court found “good cause” to continue the case to November 3, 2008.   See Footnote 1  The trial court also refused appellant's request to make a finding with respect to when the 120-day deadline under the IADA passed or would pass. On December 1, 2008, the trial court reconvened the case with a court reporter present. After jury selection, appellant's counsel requested the opportunity to note that he had objected the last time a continuance had been granted in the case. Counsel asserted that a court reporter had not been present at that time. The trial judge stated, “I don't know if [a court reporter was present] or not but you did . . . object to me granting the State's continuance. That's correct.”
        Clarifying his objection, defense counsel noted,
 
        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 of this time to reindict. They shouldn't have brought him back if they plan on reindicting him. I believe this is way outside the time limits set forth on the Interstate Agreement on Detainers Act.
 
The trial judge responded, “Okay. Very well.” The docket sheet in the case indicates that the case was continued from November 4, 2008 to December 1, 2008. No reason for the continuance is noted, and the record does not contain any explanation for the trial court's granting the continuance apart from defense counsel's argument.
 
        
Discussion
 
        In his first issue, appellant argues the trial court violated the IADA when it proceeded to trial in his case on December 1. He contends, among other things, that the final continuance allowed in the case was not made in open court and was granted without a showing of good cause.   See Footnote 2  The State responds that appellant waived this argument by failing to ensure his November 4, 2008 objection was included in the record and failing to renew the objection before trial began on December 1.
        As a prerequisite to presenting a complaint for appellate review, an appellant must show on the record that a complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling he desired with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. See Tex. R. App. P. 33.1(a)(1)(A). Moreover, the record must show that the trial court ruled on his request, objection, or motion either expressly or implicitly or refused to ruled on the request, objection, or motion, and the appellant objected to the refusal. See id. 33.1(a)(2). Here, the record shows that appellant lodged an objection to the trial court's granting of the November 4 continuance. Neither the trial court nor the State disputed the contention by appellant's attorney that he objected on the basis of the IADA. Cf. New York v. Hill, 528 U.S. 110, 118 (2000) (holding that defense counsel's agreement to a trial date outside IADA time period waived Hill's later IADA complaint); State v. Powell, 971 S.W.2d 577, 581 (Tex. App.-Dallas 1998, no pet.) (holding that by agreeing to postponements, Powell tolled the 180- day IADA time period applicable to his case). Moreover, from the context of counsel's comments on December 1, it is apparent appellant intended to renew the objection at that time, though he had already opposed the continuance and been overruled by the trial court. We conclude that, based on the record before us, by revisiting his previous objection on the date of trial, counsel was essentially re-objecting to the violation of the IADA, and by proceeding with the trial in spite of appellant's complaint, the trial court impliedly overruled appellant's objection. See id. 33.1; see also Tex. Code Crim. Proc. Ann. art. 51.14, art. IX (providing that the statute “shall be liberally construed to as to effectuate its purposes”).
        Once appellant made his objection under article four of the IADA, the burden then shifted 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 the 120-day window provided under the IADA.
        The trial court erred in conducting the trial outside the 120-day time period prescribed by the IADA. We therefore resolve appellant's first issue in his favor. We reverse the trial court's judgment. Our disposition of the case is required by statute. Accordingly, we remand the cause with instructions to the trial court to dismiss the indictment with prejudice. See Tex. Code Crim. Proc. Ann. art. 51.14, art. V(c). Due to our resolution of appellant's first issue, we need not address his remaining issues.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081683F.U05
 
Footnote 1 Appellant's counsel mistakenly believed that the 120-day deadline under the IADA was October 10, 2008, rather than October 16. Appellant further objected that it was his understanding that the complainant was merely having day surgery. The prosecutor responded that appellant's counsel had “asked for a reset on the last trial setting which was within the 120 days” so he could have more time to investigate and prepare his punishment case. Counsel responded that any delay he had caused in the case had been the State's fault for failing to provide him with timely discovery.
Footnote 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 appellant's arrival in Dallas County to his trial date is 139.