Opinion
No. 06-17-00095-CR
04-02-2018
AARON LUCAS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court Bowie County, Texas
Trial Court No. 13F0422-005 Before Morriss, C.J., Moseley and Burgess, JJ.
OPINION
After the State was granted a continuance of Aaron Lucas' Bowie County jury trial for aggravated sexual assault of a child and aggravated kidnapping of the same victim, the jury found him guilty of both charges at his trial held twenty-eight days later, resulting in dual life sentences ordered to run consecutively. This appeal addresses the conviction for sexual assault, while our companion appeal in cause number 06-17-00096-CR addresses the kidnapping conviction. Here, Lucas asserts that the continuance improperly delayed his trial beyond the deadline set by the Interstate Agreement on Detainers Act (IADA) and that, therefore, his charge for sexual assault should have been dismissed. Because nothing in the appellate record demonstrates a lack of good cause for the continuance or the unreasonableness and the lack of necessity of the length of the continuance, we affirm the trial court's judgment.
See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2017). A related charge was indecency with the same victim by contact, but it was treated initially as a lesser-included offense and was later dismissed. See TEX. PENAL CODE ANN. § 21.11 (West Supp. 2017).
The allegations arise from the same incident. On December 19, 2009, seven-year-old Melinda Givens (a pseudonym), see TEX. R. APP. P. 9.10, was playing on a playground near her family's apartment when Lucas abducted her. He forced the child into a car, took her to a warehouse or garage, and sodomized her. During the encounter, he threatened to kill the child if she did not quit screaming. He struck her at least twice on the lip. He released the child at the gate to the playground and apartment complex.
See TEX. CODE CRIM. PROC. ANN. art. 51.14 (West 2006); see Interstate Agreement on Detainers Act, 18 U.S.C.A. App. 2, §§ 1-9 (West, Westlaw through P.L. 115-122. Also includes P.L. 115-125 to 115-129. Title 26 current through 115-131). The agreement is sometimes referred to as the IAD.
This case turns on the IADA, "a compact entered into by 48 States, the United States, and the District of Columbia to establish procedures for resolution of one State's outstanding charges against a prisoner of another State." New York v. Hill, 528 U.S. 110, 112 (2000). The Texas charges were filed while Lucas was incarcerated in a Colorado prison, and two detainers were thus lodged against Lucas in Colorado under the IADA.
In its version of the IADA, Texas has provided that if the defendant properly makes the request for final disposition of his Texas charges, he must be brought to trial within 180 days after he has caused a 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) (West 2006) (emphasis added). If there is neither a timely trial nor a qualifying continuance, the Texas charges must be dismissed with prejudice. See TEX. CODE CRIM. PROC. ANN. art. 51.14, art. V(c) (West 2006); State v. Chesnut, 424 S.W.3d 213, 214 (Tex. App.—Texarkana 2014, no pet.); State v. Powell, 971 S.W.2d 577, 580 (Tex. App.—Dallas 1998, no pet.). Here, Lucas made his request under the IADA for a timely disposition of the Texas charges, and trial did not occur until after the 180-day deadline. But a continuance was granted. The questions before us are whether the continuance met the IADA's requirements of having been granted for good cause shown and was for a necessary or reasonable time period.
The 180-day limit does not begin until actual receipt of the notice by the prosecuting officer. Fex v. Michigan, 507 U.S. 43, 52 (1993). The State asserts that Lucas' notice regarding the sexual assault charge was not received and that, therefore, the IADA never created a trial deadline for that charge involved in this appeal. But, because we conclude herein that the continuance was granted for good cause and for a necessary or reasonable period, we need not reach the State's argument concerning receipt of the notice, and we assume for the purpose of this opinion that both notices were delivered to the State simultaneously.
Under the IADA, a qualifying continuance is one that is granted by a court (1) of competent jurisdiction, (2) in open court, and (3) with the defendant or his attorney present; it must also (4) be supported by a showing of good cause and (5) be for a period that is reasonable or necessary. See Birdwell v. Skeen, 983 F.2d 1332, 1336 (5th Cir. 1993) (continuances under IADA "are unique"). Here, Lucas challenges only the fourth and fifth continuance requirements: whether good cause for a continuance was shown by the State and whether the length of the continuance as granted was reasonable or necessary.
If we were asked to determine on appeal whether Lucas complied with the IADA or otherwise to interpret it, we would review such questions of law de novo. See State v. Chesnut, 424 S.W.3d 213, 216 (Tex. App.—Texarkana 2014, no pet.); Walker v. State, 201 S.W.3d 841, 845 (Tex. App.—Waco 2006, pet. ref'd). The questions before us, however, are essentially factual findings underlying the issue of IADA compliance, that is, whether good cause for the continuance was shown and whether the continuance was necessary or reasonable, which we review under the highly deferential clearly erroneous standard. Huff v. State, 467 S.W.3d 11, 21 (Tex. App.—San Antonio 2015, pet. ref'd); Chesnut, 424 S.W.3d at 216; see Nieto v. State, 365 S.W.3d 673, 676 (Tex. Crim. App. 2012) (discussing clearly erroneous standard in Batson context). A continuance is ordinarily a discretionary act of the trial court. See Engle v. Coker, 820 S.W.2d 247, 250 (Tex. App.—Beaumont 1991, no pet.).
In this record, we find nothing demonstrating that the State did not satisfy its trial-level burden to present good cause for the continuance or that, therefore, the trial court abused its discretion or was clearly erroneous in granting it. See Davis v. State, 345 S.W.3d 71, 78 (Tex. Crim. App. 2011).
Instead, at the April 3, 2017, hearing on the State's motion for continuance of the trial scheduled to begin April 4, the trial court granted the continuance based on two State-tendered reasons for the continuance, (1) the unavailability of Missy Davison, the State's expert witness and forensic interviewer, who was under a witness subpoena in Arkansas for April 4, and (2) the pending DNA retesting of biological material recovered from the victim's person, both of which were claimed to be necessary or at least in the interest of justice at trial. Nothing in this record demonstrates that those were not real, genuine reasons demonstrating need for the continuance. While there may have been legitimate questions concerning when the State asked that the DNA evidence be retested, there was and is no claim that retesting the material, some seven years after its initial testing, using now-available, updated technology and testing protocols, was a useless exercise or a specious excuse for a continuance. The unavailable expert witness, Missy Davison, was actually called by the State and testified at length at Lucas' rescheduled May 2 trial. This situation is easily distinguished from the rejected prosecution excuse in the Birdwell case that the prosecution there was trying to decide whether to use a then-unavailable witness and therefore needed a continuance. Birdwell v. Skeen, 983 F.2d 1332, 1340 (5th Cir. 1993). Therefore, the trial court's order continuing Lucas' trial is supported by a showing of good cause, and no abuse of discretion or clearly erroneous action by the trial court has been shown as to the good-cause requirement.
The DNA testing ultimately statistically identified Lucas as the source of the semen found on Melinda's clothing, originally acquired in December 2009, as being "15.2 sextillion times more likely" to have been acquired if the sample came from "Lucas than if the DNA came from an unrelated, unknown individual."
The final question is whether the length of the continuance was reasonable or necessary. As a result of the continuance, the scheduled trial date of April 4 was delayed twenty-eight days, to May 2, a date that was just eight days past the IADA trial deadline of April 24. This record contains no indication that there was any earlier date available on the trial court's calendar or that setting trial just eight days beyond the April 24 trial deadline of the IADA was unreasonable or in any way harmful to Lucas. Lucas has not provided a record that shows the length of the continuance to have been unreasonable and unnecessary. See Davis, 345 S.W.3d at 78. Thus, the record demonstrates no abuse of discretion nor any clearly erroneous action by the trial court as to the length of the continuance.
Our calculus of Lucas' IADA trial deadline starts with the State's acknowledged receipt of the kidnapping-related notice calculation October 26, 2016. For this opinion, we assume, for the sake of argument, that the State received Lucas' sexual-assault-related notice on that same day. One hundred eighty days thereafter would be April 23, 2017, which was a Sunday. Thus, we identify April 24 as the IADA trial deadline.
We affirm the trial court's judgment and sentence.
Bailey C. Moseley
Justice Date Submitted: January 17, 2018
Date Decided: April 2, 2018 Do Not Publish