Opinion issued May 7, 2019




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                   NOS. 01-18-00046-CR & 01-18-00047-CR
                            ———————————
                 DOMINIQUE DONTAE LASKER, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                  On Appeal from the 506th Judicial District
                            Waller County, Texas
               Trial Court Case Nos. 11-01-13704 & 11-01-13705


                                    OPINION

      Appellant Dominique Dontae Lasker appeals his two convictions for murder.

In two points of error, appellant contends that the trial court erred in denying his

motion to dismiss his cases because the State failed to bring him to trial within (1)
180 days after he triggered Article III of the Interstate Agreement on Detainers Act

(“IADA” or ”the Act”) and (2) 120 days after he was received in Waller County as

required by Article IV of the IADA. Because the trial court erred in denying

appellant’s motion to dismiss, we reverse the trial court’s judgments and remand the

causes to the trial court with instructions to dismiss the indictments with prejudice.

                                    Background

      On January 27, 2011, appellant was indicted by a Waller County grand jury

for capital murder (for two murders committed during the same criminal transaction)

and two counts of murder alleged to have been committed on March 11, 2010. At

the time of the indictments, appellant was in the custody of federal correctional

authorities in the Southern District of California, charged with “armed bank robbery

and aiding and abetting” (Count 1) and “use and carrying of a firearm during the

commission of a crime of violence, aiding and abetting” (Count 2).

      Appellant pleaded guilty to both federal counts and, on December 16, 2011,

he was convicted and sentenced to 37 months on Count 1 and 84 months on Count

2, with the sentences to run consecutively, for a total sentence of 121 months.

Following his convictions, appellant was incarcerated at the Federal Correctional

Complex in Victorville, California.




                                          2
      Waller County subsequently filed detainers1 against appellant. In July 2012,

appellant submitted his first request for final disposition of the Waller County

indictments to the Waller County District Clerk and Waller County Criminal District

Attorney (“first request”). The request included documents entitled “Notice and

Demand to District Attorney/Prosecutor for Trial or Disposition of Warrants,

Informations, Detainers, or Indictments by Federal Prisoner” and “Notice of Place

of Imprisonment and Request for Speedy Trial and Final Disposition.” The Waller

County District Attorney’s Office received appellant’s request on July 19, 2012. On

December 13, 2012, appellant filed a pro se motion to dismiss the Waller County

indictments against him for violation of the IADA.

      On January 2, 2013, the State of Texas requested temporary custody of

appellant from the federal prison authorities in California. Federal authorities

acknowledged receipt of the State’s request on January 31, 2013.

      It is undisputed that, on February 8, 2013, the Waller County Criminal District

Attorney’s Office received appellant’s second request for final disposition of the

indictments, this time sent by the federal correctional complex warden via registered



1
      “A detainer is a request by a criminal justice agency that is filed with the institution
      in which a prisoner is incarcerated, asking that the prisoner be held for the agency,
      or that the agency be advised when the prisoner’s release is imminent.” Fex v.
      Michigan, 507 U.S. 43, 44 (1993); State v. Votta, 299 S.W.3d 130, 135 (Tex. Crim.
      App. 2009).

                                             3
mail, return receipt requested (“second request”). The second request included

documents entitled “IAD—Placement of Imprisonment,” “IAD—Certificate of

Inmate Status,” and “IAD—Offer to Deliver Temporary Custody.” On April 10,

2013, appellant filed a second pro se motion to dismiss the indictments against him

for violation of the IADA.

      Appellant was returned to Waller County on May 24, 2013. On June 4, 2013,

appellant first appeared in Waller County district court and the trial court appointed

counsel to represent him. At the conclusion of the hearing, the case was not reset.

The court merely instructed that appellant be returned to custody. That same day,

the trial court signed an order appointing the Regional Public Defender for Capital

Cases to represent appellant. Two days later, the trial court appointed Frank Blazek

to represent appellant.

      On August 30, 2013, the State filed its first motion for continuance. In its

motion, the State indicated its intent seek the death penalty.

      On September 9, 2013, appellant filed his third motion to dismiss the

indictments, contending that the cases should be dismissed under the IADA and his

federal constitutional right to a speedy trial. That same day, the trial court heard

appellant’s motion to dismiss and the State’s motion for continuance. At the

conclusion of the hearing, the trial court granted the State’s motion:

      Well, I think I owe it to you for clarity right now to give you the grounds
      that as a preliminary ruling. I am using Article 4 of IADA to grant the
                                          4
      State’s Request for the Continuance because I do find good grounds.
      And that good grounds being the delay in getting Mr. Lasker back here;
      the seriousness of the charges against him; the availability of him being
      provided adequate and proper counsel; the complexity that has been
      represented to me of this case. And for all those reasons and there may
      well be further reasons upon study of this, I do find we have the good
      grounds that would be found under Article 4 for the Continuance.

The trial court stated that it would take appellant’s motion to dismiss under

advisement.    Later that day, the trial court signed a scheduling order setting

November 4, 2013 to hear motions and pleas and a jury trial on February 24, 2014.

      On October 30, 2013, appellant filed his first amended motion to dismiss. In

the motion, appellant cited both his initial Article III request received on July 19,

2012, and his second Article III request received on February 8, 2013, asserting that

180 days had passed since receipt of both requests. Appellant also argued that he

had not sought any delay in the cases, and that the trial court had not found that good

cause existed for any delay prior to the expiration of 180 days.

      At the November 4, 2013 hearing, the parties discussed the filing of

appellant’s first amended motion to dismiss, agreed to submit factual stipulations to

the trial court, and discussed the scheduling of pretrial matters. Following the

hearing, the trial court entered a new scheduling order setting pretrial hearings but

leaving the February 24, 2014 jury trial setting in place.

      At a hearing held on February 11, 2014, the parties argued appellant’s first

amended motion to dismiss and agreed to numerous stipulations regarding the facts

                                          5
and timeline of events relevant to appellant’s motion. The hearing concluded and

the February 24, 2014 jury trial setting remained in place.

      Trial did not occur on February 24, 2014. On April 4, 2014, the trial court

issued a new scheduling order setting the case for a preferential jury trial setting on

March 30, 2015.

      On July 2, 2014, the trial court signed an order denying appellant’s motion to

dismiss for violations of the IADA with the handwritten notation “although ruled on

March 11, 2014.” On July 11, 2014, appellant’s trial counsel sent a letter to the trial

court, with a copy to the State, forwarding appellant’s motion to dismiss. The letter

and motion stated that appellant was seeking dismissal of the indictments against

him based on violations of both the 120-day and 180-day periods under the IADA.

On July 15, 2014, the trial court signed an order denying appellant’s motion to

dismiss.

      Trial did not occur on March 30, 2015. The case was reset three more times

over the next two and a half years. The record does not reflect that either party filed

a continuance prior to any of those settings.

      On May 16, 2017, the State filed its first trial motion for continuance. The

trial court granted the State’s motion for continuance and reset the trial to October

2, 2017.




                                          6
      On October 2, 2017, appellant pleaded guilty to the two murder charges.

Pursuant to a plea agreement with the State, appellant was sentenced to forty-five

years’ confinement, to run concurrently with his federal sentence. The trial court

granted appellant the right to appeal the denial of his IADA motions to dismiss.

                                      Discussion

      In his first point of error, appellant contends that the trial court erred in

denying his motion to dismiss for violation of the IADA because the State failed to

bring him to trial within 180 days after he triggered Article III of the Act. In his

second point of error, appellant argues that the trial court erred in denying his motion

to dismiss because the State failed to bring him to trial within 120 days after he was

received in Waller County as required by Article IV of the Act.

   A. Standard of Review

      We review de novo a trial court’s ruling on a motion to dismiss pursuant to

the IADA and the question as to whether there has been compliance with the Act’s

requirements. See Arthur Alexander Office v. State, 563 S.W.3d 457, 463 (Tex.

App.—Houston [14th Dist.] 2018, pet. ref’d); Kirvin v. State, 394 S.W.3d 550, 555

(Tex. App.—Dallas 2011, no pet.). Any factual findings underlying that decision

are reviewed under a clearly erroneous standard. Walker v. State, 201 S.W.3d 841,

845 (Tex. App.—Waco 2006, pet. ref’d); State v. Miles, 101 S.W.3d 180, 183 (Tex.

App.—Dallas 2003, no pet.).

                                           7
    B. Interstate Agreement on Detainers Act

      The IADA is a congressionally sanctioned compact between the United States

and the states that have adopted it. See Alabama v. Bozeman, 533 U.S. 146, 148

(2001); State v. Chestnut, 424 S.W.3d 213, 214 (Tex. App.—Texarkana 2014, no

pet.). It “outlines the cooperative procedure between the states to be used when one

state is seeking to try a prisoner who is currently imprisoned in a penal or

correctional institution of another state.”2 State v. Votta, 299 S.W.3d 130, 134–35

(Tex. Crim. App. 2009). Texas is a party to the IADA and has codified the IADA’s

provisions in the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.

ANN. art. 51.14; Votta, 299 S.W.3d at 134–35.

      The IADA’s purpose is to “encourage the expeditious and orderly disposition

of [outstanding] charges and determination of the proper status of any and all

detainers based on untried indictments, informations, or complaints,” based on the

rationale that such charges and detainers “produce uncertainties which obstruct

programs of prisoner treatment and rehabilitation.” TEX. CODE CRIM. PROC. art.

51.14, art. I. Article IX mandates that the IADA “shall be liberally construed so as

to effectuate its purposes.” Id. art. IX.




2
      “State” as used in the IADA includes the United States. See TEX. CODE CRIM.
      PROC. ANN. art. 51.14, art. II(a); 18 U.S.C. App. 2, § 2 (enacting IADA).

                                            8
      Under the IADA, the prosecuting authority seeking to try an individual who

is incarcerated in another state’s institution must file a detainer with the institution

in the state where the individual is being held. See id. art. III(a); Votta, 299 S.W.3d

at 135. Once the detainer is filed, the warden or other official who has custody of

the prisoner must promptly inform the prisoner that a detainer has been filed against

him and that he has the right to request a final disposition of the pending charges

upon which the detainer is based. TEX. CODE CRIM. PROC. art. 51.14, art. III(c);

Votta, 299 S.W.3d at 135. The IADA’s central provisions are Articles III and IV.

In re Dacus, 337 S.W.3d 501, 504 (Tex. App.—Fort Worth 2011, no pet.).

      1. Article III

      Article III provides the procedure for a prisoner in one state to request a

speedy or “final” disposition of the charges underlying the detainer lodged by

another state. See id. at 504–05 (citing TEX. CODE CRIM. PROC. art. 51.14, art. III).

To invoke the IADA, the prisoner must “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” of the

charges against him. TEX. CODE CRIM. PROC. art. 51.14, art. III(a), (b); Votta, 299

S.W.3d at 135. The defendant’s written notice and request for final disposition must

be accompanied by a certificate from the custodial official stating (1) the defendant’s

term of commitment, (2) the time already served, (3) the time remaining to be served,

                                           9
(4) the amount of good time earned, (5) the date of parole eligibility, and (6) any

decision of the parole agency regarding the defendant. TEX. CODE CRIM. PROC. art.

51.14, art. III(a); Votta, 299 S.W.3d at 135.

      A prisoner may comply with the statutory requirements by either (1)

delivering his IADA request to the warden where he is imprisoned to be forwarded

with the required certificate to the court and prosecuting attorney of the state which

lodged the detainer against him, by regular mail or certified mail, return receipt

requested,3 or (2) delivering his request directly to the court and the prosecuting

attorney of that state. Arthur Alexander, 563 S.W.3d at 463; Walker, 201 S.W.3d at

846; see TEX. CODE CRIM. PROC. art. 51.14, art. III(b). When a prisoner delivers the

request for disposition to the warden where he is incarcerated for the purpose of

forwarding it to the State that issued the detainer, “then the prisoner’s ‘only

obligation [i]s to show that he notified the appropriate [prison] officials of his desire

to [be transferred].’” Arthur Alexander, 563 S.W.3d at 463 (quoting Walker, 201

S.W.3d at 846) (internal quotations omitted). “Conversely, if the prisoner decides

to deliver his transfer request directly to the court and prosecuting attorney of the

other state, he is personally responsible to see that the notice is sent by registered or

certified mail, return receipt requested, to those authorities.” Id. (quoting Walker,


3
      The requirement for registered or certified mail provides documentary evidence of
      the date on which the request is delivered to the prosecuting officer. See Fex, 507
      U.S. at 51.

                                           10
201 S.W.3d at 846). The IADA specifically places the duty of notifying the

appropriate prosecuting officer and court on a defendant. Lindley v. State, 33 S.W.3d

926, 930 (Tex. App.—Amarillo 2000, pet. ref’d). If the prisoner complies with all

the requirements of article 51.14, he must be brought to trial in the state where

charges are pending “within 180 days from the date on which the prosecuting officer

and the appropriate court receive” the written request, provided that for good cause

the court may grant any reasonable or necessary continuance. Votta, 299 S.W.3d at

135 (citing TEX. CODE CRIM. PROC. art. 51.14, art. III(a)).

      2. Article IV

      Article IV provides the procedure for a prosecutor in a state to request

temporary custody of a prisoner in another state for disposition of the pending

charges in his state. See TEX. CODE CRIM. PROC. art. 51.14, art. IV(a). Article IV(c)

states that “trial shall be commenced within 120 days of the arrival of the prisoner

in the receiving state, but for good cause shown . . . the court having jurisdiction of

the matter may grant any necessary or reasonable continuance.” Id. art. IV(c). The

penalty for failing to meet the deadlines of the IADA is severe. If a case is not

brought to trial within the applicable Article III or Article IV time period, the court

where the indictment is pending “shall enter an order dismissing the same with

prejudice . . . .” Id. art. 51.14, art. V(c); see State v. Williams, 938 S.W.2d 456, 459




                                          11
(Tex. Crim. App. 1997) (stating IADA “requires a dismissal of the prosecution from

the docket, with prejudice, if the Act’s time limits are not met”).

   C. Dismissal Under Article III

      Appellant contends that the trial court erred in denying his motion to dismiss

for violation of the IADA because the State failed to bring him to trial within 180

days after he properly triggered Article III. Appellant asserts that while his first

Article III request was possibly ineffective, his second request to invoke its

provisions was successful. The State argues that both of appellant’s requests failed

to strictly comply with Article III. It further asserts that, even if appellant complied,

the trial court continued the case for good cause, thereby tolling the 180-day period

under Article III.

      1. Appellant’s First Request

      The record reflects that appellant sent a request for final disposition of the

indictments against him to the Waller County district clerk and the Waller County

district attorney in July 2012. His request included two documents—“Notice and

Demand to District Attorney/Prosecutor for Trial or Disposition of Warrants,

Informations, Detainers, or Indictments by Federal Prisoner” and “Notice of Place

of Imprisonment and Request for Speedy Trial and Final Disposition.”                The

documents were filed with the Waller County district clerk’s office on July 16, 2012,

and the Waller County district attorney’s office received them on July 19, 2012.

                                           12
      When appellant directly notified Waller County officials of his request for a

final disposition, he assumed responsibility to ensure that the request included the

proper information and was sent properly. See Walker, 201 S.W.3d at 846 (“[I]f the

prisoner decides to deliver his transfer request directly to the court and prosecuting

attorney of the other state, he is personally responsible to see that the notice is sent

by registered or certified mail, return receipt requested, to those authorities.”). The

State asserts—and appellant does not dispute—that appellant’s July 2012 request (1)

was not forwarded to the Waller County district attorney and Waller County district

court through the federal prison warden or other custodial official, (2) did not include

a certificate from the federal prison official who had custody of appellant, and (3)

was not sent by registered or certified mail, return receipt requested. See TEX. CODE

CRIM. PROC. art. 51.14, art. III(b). Because his first request failed to comply with

the requirements of the IADA, appellant did not trigger the 180-day period under

Article III. See Huff v. State, 467 S.W.3d 11, 25–26 (Tex. App.—San Antonio 2015,

pet. ref’d) (concluding trial court properly denied motion to dismiss because

defendant did not comply with IADA requirements when he failed to send his

request by registered or certified mail, return receipt requested, or include certificate

with required information, so that 180-day deadline never began); State v. Garcia,

361 S.W.3d 244, 246 (Tex. App.—Amarillo 2012, no pet.) (reversing order

dismissing indictments because defendant did not comply with IADA requirements

                                           13
when he failed to provide certificate and required information so that “the 180 day

timeline remain[ed] dormant”).

      2. Appellant’s Second Request

      Appellant contends that his second request for final disposition of the Waller

County indictments complied with the IADA and, therefore, the State was required

to bring him to trial within 180 days of its receipt of his second request, i.e., by

August 7, 2013.

      The record reflects that appellant sent this Article III request for final

disposition through the warden of the federal correctional facility in which he was

incarcerated and by registered mail, return receipt requested. There is no dispute

that this request, which included forms entitled “IAD – Placement of Imprisonment,”

“IAD – Certificate of Inmate Status,” and “IAD – Offer to Deliver Temporary

Custody,” was received by the Waller County district attorney on February 8, 2013.

The certificate of inmate status included the term of appellant’s federal sentence

(“121 months”), the time he had already served as of the filling out of the certificate

(“1 year 3 months 4 days”), the time remaining to be served (“6 years 6 months 15

days”), the amount of good time earned (“108”), and the maximum expiration date

under the sentence (“11-29-2020”).

      The State acknowledges that appellant’s second request properly included all

relevant documentation, including a certificate from the appropriate custodial

                                          14
official, and that it was sent by registered mail, return receipt requested.          It

nevertheless argues that appellant failed to strictly comply with Article III because

the certificate did not include the date of appellant’s parole eligibility and any

decisions of the United States Parole Commission relating to appellant. Although it

accepts appellant’s contention that he is not eligible for federal parole, 4 the State

argues that “it cannot be presumed to know [f]ederal parole law” and that “the forms

could have included a simple ‘n/a’” instead of being left blank.

      Appellant’s second Article III request was forwarded to the Waller County

district attorney through the warden of the federal correctional facility where

appellant was incarcerated. It was the federal correctional authorities, not appellant,

who filled out the certificate of inmate status. Federal courts have recognized that

“strict compliance” with Article III is not necessarily required when the prisoner

forwards his Article III request through the appropriate custodial authorities. See,

e.g., Norton v. Parke, 892 F.2d 476, 481 (6th Cir. 1989), cert. denied, 494 U.S. 1060

(1990) (recognizing exception to rule requiring strict compliance with IADA where

prisoner has done everything possible to comply with IADA and custodial state is

responsible for prisoner’s default); Casper v. Ryan, 822 F.2d 1283, 1293 (3rd Cir.


4
      With exceptions not relevant here, the Sentencing Reform Act of 1984 abolished
      federal parole for persons convicted under federal law after November 1, 1987.
      Lightsey v. Kastner, 846 F.2d 329, 331–32 (5th Cir. 1988). Appellant was convicted
      of the federal charges in 2011.

                                          15
1987), cert. denied, 484 U.S. 1012 (1988) (“Strict compliance with Article III may

not be required when the prisoner has done everything possible, and it is the custodial

state that is responsible for the default.”); see also Lara v. Johnson, 141 F.3d 239,

243 (5th Cir. 1998) (“[W]e are not implying or stating that nothing short of strict and

literal compliance with each and every IAD provision is absolutely necessary to

sufficiently notify a state’s prosecutors of a request for trial.”).

      Several Texas courts have reached a similar conclusion. In Walker v. State,

the Waco Court of Appeals held that the defendant had successfully invoked Article

III by forwarding his request to the warden of the facility in which he was being

held, explaining that “[i]f the prisoner delivers the transfer request to the warden

where he is incarcerated for forwarding, then the prisoner’s ‘only obligation [i]s to

show that he notified the appropriate [prison] officials of his desire to [be

transferred].’” 201 S.W.3d at 846 (quoting Burton v. State, 805 S.W.2d 564, 575

(Tex. App.—Dallas 1991, pet. ref’d)). In State v. Chestnut, the Texarkana Court of

Appeals concluded that a federal prisoner who was incarcerated in Oregon at the

time of his indictment in Texas had complied with the requirements of the IADA,

despite the fact that the warden of the Oregon prison had failed to ensure that the

request for final disposition was received by the court. 424 S.W.3d at 215–17. The

court held that the defendant had “met his only obligation under Article III” when

he delivered his IADA request to the warden in proper form. See id. at 217.

                                            16
      Here, it is undisputed that appellant delivered his second Article III request to

the appropriate federal correctional authorities in proper form.          Accordingly,

appellant met his only obligation under Article III of the IADA. See Chestnut, 424

S.W.3d at 217; Walker, 201 S.W.3d at 846.

      The State contends that appellant’s request for dismissal under Article III was

properly denied for another reason. It argues that the trial court granted two

continuances—one on June 4, 2013 and a second one on September 9, 2013—and

these continuances tolled the 180-day period under Article III.

      The record reflects that appellant first appeared in court on June 4, 2013. At

the hearing, the trial court told appellant “what we are here to do today is primarily

make sure that you have representation.” The trial court then informed appellant

that he would be assigned a two-person capital defense team from the Regional

Capital Defender’s Project. The trial court signed an order appointing counsel the

same day.

      It is the State’s position that the trial court, at appellant’s request, reset the

case at the June 4, 2013 hearing so that appellant could be appointed counsel to

represent him. The State asserts that “[a] court has no real choice but to grant a

reasonable and necessary continuance as part and parcel of appointing counsel, per

the Defendant’s request, in a capital murder prosecution in which the death penalty




                                          17
is on the table.”5 The State concludes that “[i]t appears plain that the judge granted

a necessary continuance as part of this hearing” until the next hearing on September

9, 2013, thereby tolling the 180-day period until the September 9, 2013 hearing.

      The IADA is a congressionally sanctioned interstate compact subject to

federal construction. See New York v. Hill, 528 U.S. 110, 111 (2000). The Fifth

Circuit’s analysis in Birdwell v. Skeen is instructive. In that case, during a hearing

on the defendant’s motion to dismiss the indictment against him for violation of his

right to a speedy trial, the State requested a continuance so that it could determine

whether it needed the testimony of its investigator who was unavailable. See

Birdwell, 983 F.2d 1332, 1334 (5th Cir. 1993). The district court granted a one-week

continuance; however, the hearing did not reconvene until three weeks later without

an explanation for the delay. See id.

      Noting the “unique” nature of continuances under the IADA, the Fifth Circuit

stated:

      The IADA sets forth five distinct requirements for obtaining such a
      continuance. First, the court must have competent jurisdiction. Second,
      the grant of the continuance must be in open court. Third, the defendant
      and/or his attorney must be present. Fourth, the movant must
      demonstrate good cause in open court, and finally, the length of the
      continuance must be reasonable or necessary.




5
      The State cites no legal authority in support of this assertion.
                                            18
Id. at 1336 & n.9 (“[U]nless [a] continuance[] compl[ies] with the IADA

requirements, [it] will not toll the speedy trial period.”). The court held that the

continuance granted by the district court lasted only for one week, and that the

additional two-week unexplained delay did not meet the criteria for an additional

continuance under the IADA. See id. at 1339. The Fifth Circuit affirmed the district

court’s order vacating the defendant’s conviction because the State did not comply

with the requirements of the IADA. See id. at 1341.

      Here, the more than three months between the June 4, 2013 hearing and the

September 9, 2013 hearing failed to comply with the IADA continuance

requirements in several respects. Neither the State nor appellant asserted any motion

for continuance, either written or oral, and the trial court did not grant a continuance

in open court. In fact, the word “continuance” does not appear anywhere in the

reporter’s record of the hearing.6 The purpose of the hearing, as the trial court

advised appellant, was to ensure that appellant had representation.           Once that

purpose was accomplished, the trial court adjourned the hearing and signed an order

that same day, and there was no finding, or even reference to, good cause for any

continuance. And, contrary to the State’s assertion, appellant did not request a reset


6
      Because neither party moved for a continuance and the trial court did not grant one,
      it follows that there was no demonstration of good cause in open court. See Birdwell
      v. Skeen, 983 F.2d 1332, 1336 (5th Cir. 1993) (stating third requirement of
      continuance under IADA is that movant must demonstrate good cause in open
      court).
                                           19
but, instead, repeatedly requested that his motions to dismiss be heard. The trial

court did not take up appellant’s motions. Cf. Morganfield v. State, 919 S.W.2d 731,

735 (Tex. App.—San Antonio 1996, no pet.) (concluding that 120-day provision

under Article IV was not tolled where no request for continuance from either party

or any agreed resetting appeared in record).

      The IADA mandates that the agreement “be liberally construed so as to

effectuate its purposes.” Birdwell, 983 F.2d at 1339 (noting purpose of IADA is “to

provide for the expeditious disposition of outstanding charges against persons

imprisoned in other jurisdictions”). It is clear that, under this mandate, a silent record

is counted against the State. As the Birdwell court explained:

      If the speedy trial period could be tolled by unexplained extensions of
      continuances simply because the record fails to attribute them to the
      prosecution, the speedy trial provision would, in effect, be rendered a
      nullity. For a trial court could grant a one-week continuance, but not
      reconvene for weeks or months. And although no party had
      demonstrated good cause for the additional postponement in open court
      and in the presence of the defendant and/or his attorney, not one day of
      that “super-continuance” would count in the speedy trial computation.
      We believe that such a rule would not only render the explicit
      continuance requirements surplusage, but would also encourage
      prosecutors to obtain ex parte continuances and “busy district courts”
      to grant sua sponte continuances. Such clever maneuvering around the
      IADA provisions would thwart the purposes of the IADA and chisel
      away defendants’ rights to a speedy trial under the agreement.

Id. at 1339 (emphasis in original). See also Johnson v. Stagner, 781 F.2d 758, 763

n.8 (9th Cir. 1986) (determining that “responsibility for undocumented continuances

cannot simply be imputed to a defendant”); Stroble v. Anderson, 587 F.2d 830, 839–
                                           20
40 (6th Cir. 1978), cert. denied, 440 U.S. 940 (1979) (stating that informal methods

of granting continuances are inconsistent with requirements of IADA); United States

v. Ford, 550 F.2d 732, 743 (2d Cir. 1977), aff’d 436 U.S. 340 (1978) (noting that

defendant’s “speedy trial rights may be whittled away in the non-adversary context

of ex parte communications between the government and the court”). We must

emphasize, again, that the IADA is “a federal law subject to federal construction.”

Hill, 528 U.S. at 111.

       The 180-day period ran without interruption from February 8, 2013, the day

the Waller County district attorney received appellant’s second IADA request, until

August 7, 2013. Because the State failed to bring appellant to trial before the

180-day period expired, we hold that the trial court erred in denying appellant’s

motion to dismiss for violation of Article III of the IADA. Accordingly, we sustain

appellant’s first point of error.7




7
       In light of our disposition of appellant’s first point of error, we need not address his
       second point of error contending that the trial court erred in denying his motion to
       dismiss for violation of Article IV of the IADA because the State failed to bring him
       to trial within 120 days after he was received in Waller County. See TEX. R. APP.
       P. 47.1 (stating that appellate court must address every issue raised and necessary to
       final disposition of appeal). Nor do we need to address the fact that the case was
       not resolved with a plea on a reduced charge until more than four years after
       appellant arrived in the state.
                                             21
                                    Conclusion

      We reverse the trial court’s judgments in cause numbers 11-01-13704 and 11-

01-13705 and remand the causes to the trial court with instructions to dismiss the

indictments with prejudice. See TEX. CODE CRIM. PROC. art. 51.14, art. V(c).




                                             Russell Lloyd
                                             Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Publish. TEX. R. APP. P. 47.2(b).




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