Wells, Darryl B. ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-77,433-03

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EX PARTE DARRYL B. WELLS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2007CR2049 IN THE 379TH DISTRICT COURT FROM BEXAR COUNTY

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Per curiam.   O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of murder and sentenced to sixty-five years' imprisonment. The conviction and sentence were affirmed on direct appeal, and Applicant's petition for discretionary review was refused. Wells v. State, 319 S.W.3d 82 (Tex.App.--San Antonio 2010, PD-0508-10 ref'd).

Applicant has raised several procedurally barred claims in his writ application, and he has alleged his three successive appointed trial lawyers and his appointed appellate lawyer all provided ineffective assistance. All trial counsel have responded to the IAC claims in affidavits, and each explains his respective representation of Applicant and addresses the claims raised with the exception of Applicant's claim concerning the Interstate Agreement on Detainers Act (IADA).

The IADA is a congressionally sanctioned compact between the United States and the states, including Texas, that have adopted it. State v. Miles, 101 S.W.3d 180, 183 (Tex.App.--Dallas 2003). The statute's purpose is "to provide for the speedy disposition of charges filed in one jurisdiction against prisoners who are serving sentences in another jurisdiction." Morganfield v. State, 919 S.W.2d 731, 733 (Tex.App.--San Antonio 1996). In so doing, "uncertainties which obstruct programs of prisoner treatment and rehabilitation" are avoided. See Tex. Code Crim. Proc. art 51.14, sec. I. The IADA is a federal law subject to federal construction, New York v. Hill, 528 U.S. 110, 111 (2000), and it has been described as a measure enacted to "avoid prosecutorial delay," Ex parte Saylor, 734 S.W.2d 55, 57 (Tex.App.--Houston [1st Dist.] 1987). Under Article III of the IADA, the return and trial of the out-of-state prisoner are invoked by the prisoner himself. Tex. Code Crim. Proc. art 51.14, art. III(a).

A prisoner may request final disposition of untried charges by giving written notice to the warden, who forwards the request, along with a certificate containing information about the prisoner's current confinement, to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction. See State v. Votta, 299 S.W.3d 130, 134-35 (Tex.Crim.App.2009). The prisoner must then be brought to trial in the receiving state within 180 days from the date on which the prosecuting officer and the appropriate court receive this written request for a final disposition, unless a continuance is granted under the Act. See Tex. Code Crim. Proc. art. 51.14, art. III(a); Votta, 299 S.W.3d at 134-35. If the prisoner is not brought to trial within 180 days, the trial court must dismiss the indictment with prejudice. Tex. Code Crim. Proc. art. 51.14, art. III(d); Votta, 299 S.W.3d at 134-35.

Applicant alleges trial and appellate counsel failed to urge an IADA claim, and he includes a letter from Ohio authorities where Applicant was previously confined showing that Applicant attempted to invoke the IADA through the Ohio Department of Rehabilitation and Correction. The letter indicates IADA paperwork was mailed to authorities in Texas on October 2, 2006, including Bexar County and the prosecutor's office, but the trial did not occur until August 2008. Applicant states in his application and memorandum that the prosecutor's office denies receiving the material from Ohio, and he also alleges proof he had regarding his IADA request was taken from him when the prosecution had jail officials remove documents from his jail cell before trial. There is no information in the writ record regarding the receipt of the IADA paperwork or any action taken on it or on a motion to dismiss filed by first trial counsel based on the IADA.

In regard to this IAC/IADA issue only, Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex.Crim.App. 1999). Applicant's remaining claims lack merit. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order trial and appellate counsel to respond to Applicant's claim of ineffective assistance in regard to the IADA issue. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether the performance of Applicant's trial and/or appellate counsel was deficient and, if so, whether the deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: October 31, 2012

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