                          PD-1621&1622-15                             PD-1621&1622-15
                                                            COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                          Transmitted 12/15/2015 7:29:43 AM
                                                            Accepted 12/15/2015 4:18:26 PM
                                                                             ABEL ACOSTA
                    IN THE COURT OF CRIMINAL APPEALS                                 CLERK
                         FOR THE STATE OF TEXAS

  VIKRAM S. CHAUHAN,
      APPELLANT


                     V.    COA NOS. 02-14-00252-CR
                                    02-14-00253-CR
                   TRIAL COURT NOS. 1248464D
                                    1248466D
  THE STATE OF TEXAS,
      APPELLEE


  APPEALED FROM CAUSE NUMBERS 1248464D AND 1248466D, IN THE
  CRIMINAL DISTRICT COURT NUMBER ONE, TARRANT COUNTY,
  TEXAS; THE HONORABLE ELIZABETH BEACH, JUDGE PRESIDING.


     APPELLANT'S PETITION FOR DISCRETIONARY REVIEW


                           WILLIAM H. "BILL" RAY
December 15, 2015          TEXAS BAR CARD NO. 16608700
                           ATTORNEY FOR APPELLANT

                           LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
                           512 MAIN STREET, STE. 308
                           FORT WORTH, TEXAS 76102
                           (817) 698-9090
                           (817) 698-9092, FAX
                           bill@billraylawyer.com

  ***ORAL ARGUMENT IS NOT REQUESTED**




  PETITION FOR DISCRETIONARY REVIEW, PAGE 1
                  IDENTITY OF PARTIES AND COUNSEL

VIKRAM S. CHAUHAN                           APPELLANT
    c\o Texas Dept. of Criminal
    Justice, Institutional
    Division, Huntsville, Texas

HONORABLE BRIAN WILLETT                     ATTORNEY FOR APPELLANT
                                            AT TRIAL

HONORABLE WILLIAM H. RAY                    ATTORNEY FOR APPELLANT
    512 Main Street, Ste. 308               ON APPEAL ONLY
    Ft. Worth, Texas 76102

HONORABLE SHAREN WILSON                     CRIMINAL DISTRICT ATTORNEY
    401 W. Belknap Street                   TARRANT COUNTY, TEXAS
    Fort Worth, Texas 76102

HONORABLE SAM WILLIAMS                      ASSISTANT CRIMINAL
    401 W. Belknap Street                   DISTRICT ATTORNEY
    Fort Worth, Texas 76102                 TARRANT COUNTY, TEXAS

HONORABLE SARAH BRUNER                      ASSISTANT CRIMINAL
    401 W. Belknap Street                   DISTRICT ATTORNEY
    Fort Worth, Texas 76102                 TARRANT COUNTY, TEXAS

HONORABLE ELIZABETH BEACH                   JUDGE, CRIMINAL DISTRICT
    401 W. Belknap Street                   COURT NUMBER ONE
    Fort Worth, Texas 76102                 TARRANT COUNTY, TEXAS

HONORABLE LISA McMINN                       STATE PROSECUTING
    P.O. Box 13046                          ATTORNEY
    Austin, Texas 78711




PETITION FOR DISCRETIONARY REVIEW, PAGE 2
                            TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                      2

INDEX OF AUTHORITIES                                 4

STATEMENT CONCERNING ORAL ARGUMENT                   6

STATEMENT OF THE CASE                                6

STATEMENT OF THE PROCEDURAL HISTORY                  7

GROUNDS FOR REVIEW

GROUND FOR REVIEW NUMBER ONE                         8

      THE TRIAL COURT ERRONEOUSLY ALLOWED
      APPELLANT TO BE TRIED IN VIOLATION OF THE
      INTERSTATE AGREEMENT ON DETAINERS ACT,
      ART. 51.14, CODE OF CRIMINAL PROCEDURE

GROUND FOR REVIEW NUMBER TWO                         13

      TRIAL COUNSEL WAS INEFFECTIVE FOR NOT URGING
      SUBSTANTIAL COMPLIANCE WITH THE INTERSTATE
      AGREEMENT ON DETAINERS

PRAYER                                               17

CERTIFICATE OF SERVICE                               17

CERTIFICATE OF COMPLIANCE                            18




PETITION FOR DISCRETIONARY REVIEW, PAGE 3
                          INDEX OF AUTHORITIES
Cases                                                                    Page

Birdwell v. Skeen, 983 F.2d 1331 (5th Cir.1993)                          9

Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App. 1984)                14

Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 3403,               9
     87 L.Ed.2d 516 (1985)

Cuyler v. Adams, 449 U.S. 433, 442, 101 S.Ct. 703, 709,                  9
     66 L.Ed.2d 641 (1981)

Ex Parte Felton, 815 S.W.2d 733, 735 (Tex.Crim.App. 1991)                14

Ex parte Menchaca, 854 S.W.2d at 131                                     14

Ex Parte Scott, 581 S.W.2d 181, 182 (Tex.Crim.App. 1979)                 13

Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993)     9

Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984)                15

Jackson v. State, 766 S.W.2d 504, 508 (Tex.Crim.App. 1985)               14

Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App. 1988)                    14

Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994)               15

Kirvin V. State 394 S.W.3d 550, at 555 (Tex.App.–Dallas 2011, no pet.)   9

McFarland v. State, 928 S.W.2d at 500                                    13

Murray v. Carrier, 106 S.Ct. 2639, 2649(1986)                            14

State vs. Chesnut, No. 06-13-00107-CR, (Tex.App.– Tyler, February 12,    10
       2014, no pet.)


PETITION FOR DISCRETIONARY REVIEW, PAGE 4
State v. Powell, 971 S.W.2d 577 (Tex.App.–Dallas 1998, no pet.)   11

Strickland v. Washington, 446 U.S. 668 (1984)                     13

United States v. Cronic, 104 S.Ct. 2039, 2046 n. 20 (1984)        14

United States v. Hall, 974 F2d 1201 (9th Cir. 1992)               12

Walker v. State, 201 S.W.23d 841 (Tex.App.–Waco 2006, no pet)     11


Statutes

Article 51.14, Code of Criminal Procedure                         8

Interstate Agreement of Detainers Act                             8

Title 18, U.S.C, Appendix.                                        8




PETITION FOR DISCRETIONARY REVIEW, PAGE 5
             STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is not necessary in this case.

                          STATEMENT OF THE CASE

      This is an appeal from two felony convictions for the offenses of Aggravated

Robbery with a Deadly Weapon. Appellant was charged in two indictments with

the offenses of Aggravated Robbery with a Deadly Weapon. CR-7 in both cases.

The cases arose out of the same transaction and were tried at the same time.

      The jury found Appellant guilty in each case. CR, Pages 180-185

[1248466D], Pages 188-193 [1248464D]; RR-5, Pages 103-104.

      Appellant elected for the jury to assess punishment. The jury set punishment

at twenty years in the Institutional Division of the Texas Department of Criminal

Justice in each case, with no fine. CR, Pages 180-185 [1248466D], Pages 188-193

[1248464D]; RR-6, Pages 30-33.

      On direct appeal, Appellant presented two points of error, which alleged: (1)

The trial court erroneously denied Appellant’s request to have his cases resolved

within 180 days after notice to the court and State, in violation of the Interstate

Agreement on Detainers Act; and (2) Appellant received ineffective assistance of

counsel in that trial counsel erroneously refused to present Appellant’s IADA

request.


PETITION FOR DISCRETIONARY REVIEW, PAGE 6
      On direct appeal, the Court of Appeals for the Second Appellate District in

Fort Worth affirmed Appellant’s conviction. The opinion was not designated for

publication.

      Appellant timely filed a motion for rehearing in the Court of Appeals, which

was denied.

     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      Appellant was sentenced on June 25, 2014. Notice of Appeal was timely

filed. Appellant timely filed his brief in the Court of Appeals on February 6, 2015.

The State timely filed its brief on May 15, 2015.

      The case was submitted to the Court of Appeals, with oral argument, on

September 1, 2015. The Court of Appeals affirmed Appellant’s conviction on

October 29, 2015. That opinion is not designated for publication.

      Appellant timely filed a motion for rehearing, which was denied by the

Court of Appeals on November 25, 2015.

      This Petition for Discretionary Review is timely filed.




PETITION FOR DISCRETIONARY REVIEW, PAGE 7
                     GROUND FOR REVIEW NUMBER ONE


    THE TRIAL COURT ERRONEOUSLY ALLOWED APPELLANT TO
   BE TRIED IN VIOLATION OF THE INTERSTATE AGREEMENT ON
 DETAINERS ACT, ART. 51.14, CODE OF CRIMINAL PROCEDURE (IADA)

      The Defendant was tried in violation of the Interstate Agreement of

Detainers Act, Article 51.14, Code of Criminal Procedure also codified at Title

18, U.S.C. Appendix.

      Article III of the Act, “IADA”, which is the relevant portion of the statute
when the prisoner is the initiator of the request, states as follows:
      (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 prisoner, he shall be brought to trial within 180 days
      after he shall have cause 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; provide 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. The request of the prisoner shall be accompanied
      by a certificate of the appropriate official having custody of the prisoner,
      stating the term of commitment under which the prisoner is being held,
      the time already served, the time remaining to be served on the sentence,
      the amount of good time earned, the time of parole eligibility of the
      prisoner, and any decision of the state parole agency relating to the prisoner.

      (b) The written notice an request for final disposition referred to in paragraph (a)
      hereof shall be given or sent by the prison to the warden, commissioner of
      corrections, or other official having custody of him, who shall promptly
      forward it together with the certificate to the appropriate prosecuting
      official and court by registered or certified mail, return receipt requested.

      Article IX of the act states in relevant part:
      This agreement shall be liberally construed so as to effectuate its purposes.


PETITION FOR DISCRETIONARY REVIEW, PAGE 8
      The IADA is a congressionally sanctioned compact between the United

States and the states, including Texas. The IADA may be invoked by either the

prisoner or the State. Kirvin V. State 394 S.W.3d 550, at 555 (Tex.App.–Dallas

2011, no pet.) The IADA’s interpretation is a question of federal law. Cuyler v.

Adams, 449 U.S. 433, 442, 101 S.Ct. 703, 709, 66 L.Ed.2d 641 (1981). Birdwell v.

Skeen, 983 F.2d 1331 (5th Cir.1993). Thus, the Court must use Federal, not Texas

rules to interpret the Agreement. Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct.

3401, 3403, 87 L.Ed.2d 516 (1985). The language of the IADA reveals that the

180-day period does not commence until the prisoner has caused the proper

officials to receive the request; that is, when the prosecutor has obtained the

request. This is particularly so, since the key word in the 180-day provision is

"delivered," not "sent," as used in subsection b, or "executed." Birdwell, supra, at

1337; See Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406

(1993).

      Appellant sent all the required documents pursuant to Article III of the

IADA directly to the trial court and State. Appellant, in the Motion for New Trial

hearing, showed the trial court written notice of his place of imprisonment, the

only certificate Appellant could obtain from the prison authority stating the term of

commitment under which he was being held, the time served, the time remaining to


PETITION FOR DISCRETIONARY REVIEW, PAGE 9
be served, the amount of good time earned, and the time of parole eligibility.

(Defendant’s Exhibit 1 and 15, RR-Supp-2, Pages 9-10 and 32-45; RR-Supp-3,

Pages 25-28 and 101-104). Both the trial court and the Tarrant County Criminal

District Attorney received these items well over 180 days before Appellant was

tried. This fact is not in dispute.

       Specifically, Appellant’s Request for Disposition of Indictments,

Information, or Complaints in Accordance to Article III of the Interstate

Agreement on Detainers, with all the required exhibits, was filed over 180 days

before the State even started its own process to obtain Appellant’s presence for

trial. The State was aware of Appellant’s request on July 9, 2013, at 8:36 a.m,

when the document was viewed by an employee of the Criminal District

Attorney’s Office. This fact was stipulated to by the State. Defendant’s Exhibit 7,

RR-Supp-3, Page 83, RR-Supp-2, Page 12. In this case the time from when the

court and district attorney knew of the request (delivery date as indicated by the

Tarrant County District Clerk file stamp of July 1, 2013, viewed by District

Attorney employee on July 9, 2013) was at least eleven months, well over 180 days

before trial.

       The Defendant can notify the trial court directly of this request and does not

have to go through the prison system. State vs. Chesnut, No. 06-13-00107-CR,


PETITION FOR DISCRETIONARY REVIEW, PAGE 10
(Tex.App.– Tyler, February 12, 2014, no pet.); State v. Powell, 971 S.W.2d 577

(Tex.App.–Dallas 1998, no pet.); Walker v. State, 201 S.W.23d 841

(Tex.App.–Waco 2006, no pet).

      The Court of Appeals held that Appellant’s request was improper because it

did not request a “final disposition” in the prayer of the document, (although the

title of Appellant’s third request of five pro se motions on this subject filed did in

fact request a “final disposition”), and did not have a statutorily required

certification from the warden, Appellant had failed to properly put the trial court

and state on notice. Opinion, at pages, 4-6.

      Only when the notice is delivered by the prisoner to the warden of his

facility who in turn notifies the trial court and prosecutor does it have to be sent

certified mail. See Art. III (a), IADA. The State in its responses and arguments to

the trial court, and its Proposed Findings of Fact, which were adopted by the trial

court, relied incorrectly on the assertion that Appellant was required to send items

to the court and then again to the prosecutor via certified mail. CR, Page 365

[1248464D]; CR, Page 360 [1248466D]. However, the IADA does not state that.

Further, the items were actually sent certified mail (Defendant’s Exhibits 5 and 6,

RR-Supp-2, Pages 11-12, RR-Supp-3, Pages 82-83) and received, filed, and

provided to the State, who reviewed them.


PETITION FOR DISCRETIONARY REVIEW, PAGE 11
      The State presented evidence that it had brought Appellant to trial pursuant

to Article IV of the IADA. While this is true, the problem is that the time had

already run on Appellant’s Art. III, IADA request.

      Appellant submits that the trial court’s decision to deny his Motion for New

Trial was clearly erroneous. See U.S. vs. Hall, 974 F2d 1201 (9th Cir. 1992).

      There was no circumstance to justify the length of the delay, and the delay

did not occur in any form due to any neglect or act of the Defendant. Appellant

requested counsel and was not afforded counsel for over seven months.

      This Court has not directly reviewed the process, specifically, whether the

receipt of the request by the State and trial court, regardless of its naming, is

sufficient to trigger the IADA, or considered the requirement which directs that the

IADA be liberally construed to effect its purposes as required by Art. IX, IADA,

which was presented to both the trial court and Court of Appeals. RR-Supp-2,

Pages 124-125. Appellant submits that this is the first time all these issues are

before this Court, and requests that this Honorable Court hear his Petition for

Discretionary Review.

      Appellant respectfully requests that this Court reverse the decision of the

trial court and vacate the judgments of the trial court and Court of Appeals and

order prosecution barred pursuant to the Interstate Agreement on Detainers Act.


PETITION FOR DISCRETIONARY REVIEW, PAGE 12
                   GROUND FOR REVIEW NUMBER TWO

       TRIAL COUNSEL WAS INEFFECTIVE FOR NOT URGING
  APPELLANT’S REQUEST FOR DISMISSAL OF CHARGES PURSUANT
    TO THE INTERSTATE AGREEMENT ON DETAINERS ACT (IADA)

      In Strickland v. Washington, 446 U.S. 668, 104 S.Ct. 2052, 2065 (1984),

the U.S. Supreme Court held that in ineffective assistance of counsel cases, the

defendant must prove that his trial counsel’s representation was deficient, and the

deficient performance was so serious that it deprive him of a fair trial. Id., at 687.

Counsel’s representation is deficient if it falls below an objective standard of

reasonableness. The Defendant must show a reasonable probability but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.

      The assessment of whether a defendant received effective assistance of

counsel must be made according to the facts of each case. Ex parte Scott, 581

S.W.2d 181, 182 (Tex.Crim.App. 1979). Any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the

alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, at 500

(Tex.Crim.App. 1996). Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Id. Absent

both showings an appellate court cannot conclude the conviction resulted from a


PETITION FOR DISCRETIONARY REVIEW, PAGE 13
breakdown in the adversarial process that renders the result unreliable. Ex parte

Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App. 1993). Appellant bears the

burden of proving by a preponderance of the evidence that counsel was ineffective.

Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App. 1984). An appellate court

looks to the totality of the representation and the particular circumstances of each

case in evaluating the effectiveness of counsel. Ex Parte Felton, 815 S.W.2d 733,

735 (Tex.Crim.App. 1991). It is possible that a single egregious error of omission

or commission by appellant's counsel constitutes ineffective assistance. Jackson

v. State, 766 S.W.2d 504, 508 (Tex.Crim.App. 1985) (failure of trial counsel to

advise appellant that judge should assess punishment amounted to ineffective

assistance of counsel) (modified on other grounds on remand from U.S. Supreme

Court, Jackson v. State, 766 S.W.2d 518 (Tex.Crim.App. 1988)). See also Ex

parte Felton, 815 S.W.2d at 735 (failure to challenge a void prior conviction used

to enhance punishment rendered counsel ineffective). This position finds support in

opinions of the United States Supreme Court, which has also held that a single

egregious error can sufficiently demonstrate ineffective assistance of counsel.

Murray v. Carrier, 106 S.Ct. 2639, 2649(1986); United States v. Cronic, 104 S.Ct.

2039, 2046 n. 20 (1984). When handed the task of determining the validity of a

defendant's claim of ineffective assistance of counsel, any judicial review must be


PETITION FOR DISCRETIONARY REVIEW, PAGE 14
highly deferential to trial counsel and avoid the deleterious effects of hindsight.

Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984). There is a strong

presumption that counsel's conduct fell within the wide range of reasonable

professional assistance. Strickland v. Washington, supra; Jackson v. State, 877

S.W.2d 768, 771 (Tex.Crim.App. 1994).

         Trial counsel, Brian Willett, refused to present the matter to the court. At a

hearing on June 24, 2014, the day of trial, the trial court conducted a hearing and

the Defendant voiced his request for trial counsel to present and argue all the

aforementioned motions to the court. Mr. Willett stated to the trial court that in

his opinion, the motions and requests the Defendant made were without merit.

Defense Exhibit 8, (Motion for New Trial hearing.) Had trial counsel presented

this matter to the trial court, the Defendant submits that the outcome would have

been different. Specifically, the trial court would have dismissed the Defendant’s

cases.

         The result might have been different if he had presented Appellant’s

requests, according to trial counsel. Trial counsel thought Appellant had to send

the documents certified mail. There is no requirement, but even so, Appellant did

send the documents certified. If trial counsel had known that Article 51.14, C.C.P.

was required to be interpreted liberally, substantial compliance could have been a


PETITION FOR DISCRETIONARY REVIEW, PAGE 15
viable option, and trial counsel admitted that could have changed his position in

the matter and how he proceeded in handling Appellant’s Article 51.14 requests.

RR-Supp-2, Pages 71-72.

      The outcome would have been different if trial counsel had presented the

claims made by Appellant.

      The Court of Appeals held that since Appellant’s first point of error was not

meritorious, the ineffectiveness of counsel claim for not presenting Appellant’s

IADA point at trial was moot. Opinion at pages 6-7. Appellant submits that

should this Court find the first point of error meritorious, that this Court either

review his claim of ineffectiveness or remand it to the Court of Appeals for

consideration.

      For these reasons, Appellant submits that his trial counsel provided

ineffective assistance of counsel.




PETITION FOR DISCRETIONARY REVIEW, PAGE 16
                             PRAYER FOR RELIEF

      Appellant Prays that this Honorable Court vacate his convictions and order

the prosecution dismissed, and find trial counsel ineffective for not presenting his

arguments, or alternatively, remand the causes to the Court of Appeals for

consideration of Appellant’s second ground for review.

                          RESPECTFULLY SUBMITTED,

                          /S/ WILLIAM H. “BILL” RAY
                          WILLIAM H. "BILL" RAY
                          TEXAS BAR CARD NO. 16608700
                          ATTORNEY FOR APPELLANT

                          LAW OFFICE OF WILLIAM H. “BILL” RAY, P.C.
                          512 MAIN STREET, STE. 308
                          FORT WORTH, TEXAS 76102
                          (817) 698-9090
                          (817) 698-9092, FAX
                          bill@billraylawyer.com

                          CERTIFICATE OF SERVICE

      I certify that a true copy of Appellant's Petition for Discretionary Review
was delivered via the electronic filing system to the office of Ms. Sharen Wilson,
Tarrant County Criminal District Attorney, on the date of this document’s filing.
      I certify that a true copy of Appellant's Petition for Discretionary Review
was placed in the United States Mail addressed to Appellant, in the Texas
Department of Corrections, on the date of this document’s filing.
      I certify that a true copy of Appellant's Petition for Discretionary Review
was delivered via the electronic filing system to the State’s Prosecuting Attorney,
at P.O. Box 13046, on the date of this document’s filing.
                                  /S/ WILLIAM H. “BILL” RAY
                                  WILLIAM H. “BILL” RAY


PETITION FOR DISCRETIONARY REVIEW, PAGE 17
                      CERTIFICATE OF COMPLIANCE

       Pursuant to Rule 9.4 i3, of the Texas Rules of Appellate Procedure, I certify
that this Petition for Discretionary Review filed in this case, has 3299 words
contained therein. This count was obtained via the WordPerfect computer
program.
                                  /S/ WILLIAM H. "BILL" RAY
                                  WILLIAM H. “BILL” RAY




PETITION FOR DISCRETIONARY REVIEW, PAGE 18
