Robert Earl Sims v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
Nos. 04-03-00015-CR & 04-03-00092-CR
Robert Earl SIMS,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2002-CR-7257 & 2001-CR-1107
Honorable Phil Chavarria, Judge Presiding (1)

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: November 5, 2003

AFFIRMED; DISMISSED FOR LACK OF JURISDICTION

Robert Earl Sims ("Sims") appeals his sexual assault conviction. Sims asserts five points of error relating to the trial court's denial of his motion to dismiss based on the Interstate Agreement on Detainers Act ("IADA"). Because we conclude that the 180-day provision was tolled for good cause, we affirm Sim's conviction in appeal number 04-03-00015-CR. Because no final judgment was entered in cause number 2001-CR-1007, we dismiss appeal number 04-03-00092-CR for lack of jurisdiction.

Background

The parties entered into an "Agreed Stipulations and Statement of Facts" which was presented to and signed by the trial judge at the hearing on the motion to dismiss. The Bexar County district clerk and Sims also testified at the hearing.

On March 26, 2002, Bexar County filed a detainer against Sims, who was incarcerated in Florida. On May 6, 2002, the district attorney's office and the district clerk signed certified mail receipts sent by the Florida Department of Corrections. On May 7, 2002, the district attorney's office file-stamped an envelope containing a cover letter and Interstate Agreement on Detainers Forms I, II, III, and IV that were received from the Florida Department of Corrections regarding defendant Robert Sims. The Bexar County district clerk was unable to locate similar documents on file with the district clerk's office.

On August 19, 2002, Sims appeared in court and was appointed counsel to represent him. On September 17, 2002, Sims filed pre-trial motions. On October 9, 2002, the trial court signed an order granting permission for Sims to proceed ex parte concerning the appointment of an expert. The same day, the trial court signed another order directing the State to provide defense counsel with access to all "still color and still black and white photographs (or copies of the negatives thereof) at least Today or ASAP days prior to the trial setting in this cause." The trial was set for October 14, 2002.

On October 14, 2002, after the State announced ready, the following dialogue occurred between defense counsel and the trial judge:

MR. HITCHINGS: The defendant is present, Your Honor. This is subject to an order that Judge Luitjen entered last week, to turn over photographs, which hasn't been accomplished yet.

THE COURT: All right. So if and when you get the photographs, are you ready?

MR. HITCHINGS: Well, we will need time to go over them, time to look at them, and go over them with the defendant, and possibly give those to an expert.

THE COURT: I will mark you not ready and inquire further.

The case was then sent to a different trial judge, who conducted a hearing on the pre-trial motions. Defense counsel informed the trial judge in open court that "had the photographs been turned over on October 9th, 2002, we in good faith believe we would have been ready for today." The parties stipulate that the availability of the photographs was then discussed by the prosecutor and defense counsel.

On October 31, 2002, Sims was re-indicted as a repeat offender for the same sexual assault offense. On November 1, 2002, Sims was arraigned on the new indictment. On November 7, 2002, a telephone call was made by the prosecutor to defense counsel about the unavailability of the photographs. On November 8, 2002, the prosecutor, defense counsel, and an investigator with the district attorney's office met regarding the status of the photographs. Defense counsel agreed to accept a cassette disk of the photographs rather than reprints from negatives. Defense counsel was given the cassette disk at approximately 3:00 p.m. on November 8, 2002. On November 12, 2002, the cassette disk was sent to a proposed expert. The expert completed his review and contacted defense counsel on November 18, 2002. On November 26, 2002, the hearing was held on Sims's motion to dismiss. On December 2, 2002, Sims went to trial.

Jurisdiction

A defendant may only appeal from a final judgment of conviction. State v. Sellers, 790 S.W.2d 316, 321 n. 4 (Tex. Crim. App. 1990). Because no final judgment is contained in the clerk's record for appeal number 04-03-00092-CR, that appeal is dismissed for lack of jurisdiction.

Discussion

The IADA is a congressionally sanctioned compact between the United States and the states. Morganfield v. State, 919 S.W.2d 731, 733 (Tex. App.--San Antonio 1996, no pet.). The IADA provides a mechanism for the speedy disposition of charges filed in one jurisdiction against prisoners who are serving sentences in another jurisdiction. Id. Under article III of the IADA, a prisoner may make a request for final disposition of a pending case in the other jurisdiction. State v. Powell, 971 S.W.2d 577, 580 (Tex. App.--Dallas 1998, no pet.). If the defendant properly makes the request for final disposition, he must be brought to trial within 180 days after he has caused his written request to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction; "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).

Postponements or continuances and resets agreed to by defense counsel toll the 180-day period. State v. Powell, 971 S.W.2d at 581; Petrick v. State, 832 S.W.2d 767, 772 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). In this case, the trial setting was postponed because defense counsel stated that he needed the photographs that the State had been ordered to produce. The trial court noted that defense counsel was not required to wait for the prosecutor to deliver the photographs because defense counsel could have taken the trial court's order to the police department and demanded that copies of the photographs be made from the negatives at the police department's development lab. Ultimately, defense counsel consented to accepting a cassette disk of the photographs when reprints from the negatives were unavailable. Trial was set and commenced fourteen days after defense counsel received the proposed expert's report regarding the photographs.

Assuming Sims made a proper request for final disposition that was delivered on May 6, 2002, the October 14, 2002 trial setting was within the 180-day limit. (2) The question is whether defense counsel's decision not to proceed to trial without the photographs on that date was the result of the type of prosecutorial delay which the IADA is designed to protect against or was a necessary or reasonable continuance for good cause, which would toll the 180-day period. See Bell v. State, 768 S.W.2d 790, 801 (Tex. App.--Houston [14th Dist.] 1989, pet. ref'd) (noting IADA provides remedy for delays in bringing appellant to trial due to prosecutorial delay); Ex parte Saylor, 734 S.W.2d 55, 57 (Tex. App.--Houston [1st Dist.] 1987, no pet.) (holding IADA is measure enacted to avoid prosecutorial delay). In this case, defense counsel waited until October 9, 2002, or five days before the trial setting, to seek an order to obtain the photographs. Although defense counsel stated that he believed that he could have been ready for trial if the photographs were provided on that day, defense counsel did not take the actions available to him to obtain the photographs. Furthermore, defense counsel did not obtain a report from his proposed expert until ten days after the State provided defense counsel with the cassette disk. Under these circumstances, we consider the reset to be a necessary and reasonable continuance for good cause and not the result of prosecutorial delay. As a result, the 180-day period was tolled from October 14, 2002, to December 2, 2002, and no violation of the IADA occurred.

Conclusion

Appeal number 04-03-00092-CR is dismissed for lack of jurisdiction. The judgment in appeal number 04-03-00015-CR is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

1. The Honorable Mark Luitjen presided at the hearing on Sims's motion to dismiss and denied the motion.

2. The 180-day period would have ended on November 2, 2002, which was a Saturday.