                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

 DAVID CORRAL,                                   §
                                                                 No. 08-06-00270-CR
                   Appellant,                    §
                                                                    Appeal from the
 v.                                              §
                                                                  384th Impact Court
 THE STATE OF TEXAS,                             §
                                                               of El Paso County, Texas
                   Appellee.                     §
                                                                 (TC# 20050D04663)
                                                 §

                                          OPINION

       David Corral, Appellant, appeals his guilty plea, contending that the trial court erred by

overruling his motion to dismiss the indictment for want of jurisdiction and by upholding the

warrantless search of his home. We affirm.

                                        BACKGROUND

       Corral was charged with unlawful possession of marijuana. Corral filed multiple pretrial

motions, including a motion to dismiss for lack of jurisdiction and a motion to suppress evidence.

The trial court heard both of these motions and expressly overruled Corral’s motion to dismiss the

indictment. The trial court did not rule or issue a written order on Corral’s motion to suppress

evidence. Corral subsequently entered a guilty plea, and then filed a motion for new trial in which

he again raised the same lack of jurisdiction arguments that were raised in his motion to dismiss

along with evidence not previously presented to the trial court. The trial court considered Corral’s

arguments and evidence regarding the trial court’s lack of jurisdiction and overruled his motion for

new trial.

                                          DISCUSSION
                               Jurisdiction and Preservation of Error

       Before reaching the merits of Corral’s issues on appeal, we first determine sua sponte

whether we have jurisdiction to resolve the issues he has raised. State v. Roberts, 940 S.W.2d 655,

657 (Tex. Crim. App. 1996). Where a defendant has pleaded guilty or nolo contendere pursuant to

a plea bargain agreement and the punishment assessed does not exceed the agreed punishment, a

defendant may only appeal matters that were raised by a written motion filed and ruled on by the trial

court, or after getting the trial court’s permission to appeal. TEX . R. APP . P. 25.2(a)(2)(A) & (B).

       In order to preserve an alleged error for our review, the record must show both that the

complaint was made to the trial court by a timely request, objection or motion, and that the trial court

expressly or implicitly ruled on the request, objection, or motion. TEX . R. APP . P. 33.1(a)(1) &

(2)(A); Richardson v. State, 981 S.W.2d 453, 455 (Tex. App.–El Paso 1998, pet. ref’d). When an

appellant timely makes his complaint by a motion, but the record does not show that the trial court

expressly ruled on it, we must determine whether the trial court implicitly overruled the motion.

Gutierrez v. State, 36 S.W.3d 509, 511 (Tex. Crim. App. 2001). A court’s ruling need not be

expressly stated if its actions or other statements unquestionably indicate a ruling. Rey v. State, 897

S.W.2d 333, 336 (Tex. Crim. App. 1995).         Failure to obtain an adverse ruling on a motion to

suppress waives error. Dunavin v. State, 611 S.W.2d 91, 97 (Tex. Crim. App. 1981).

       Here, Corral pleaded guilty to possession of marijuana pursuant to a plea bargain agreement

and the punishment imposed did not exceed the punishment recommended by the State and agreed

to by Corral. TEX . R. APP. P. 25.2(a)(2)(A) & (B). The issues Corral may raise on appeal are

therefore restricted to those matters that were raised by a written motion filed and ruled on before

trial, and only after obtaining the trial court’s permission to appeal. Id.


                                                   2
       Corral filed two motions that were heard by the trial court in a single proceeding. In his first

motion, Corral sought to dismiss the indictment for lack of jurisdiction based upon his assertion that

he had not been tried within the time frame mandated under the Interstate Agreement on Detainers

Act (IADA). The trial court expressly overruled Corral’s motion during the hearing, thus preserving

error so that we may consider his first issue on appeal. TEX . R. APP. P. 33.1(a)(1) & (2)(A);

Richardson, 981 S.W.2d at 455.

       The trial court next considered Corral’s motion to suppress evidence but never expressly

ruled upon the motion during or after the hearing. Indeed, the trial court merely stated at the

conclusion of the hearing that it would review the cases cited by counsel and would “get with [them]

some time [the next day].” The record is devoid of any trial court order overruling the suppression

motion. Nor does the record reflect any further actions or statements by the trial court that would

render the issues raised in Corral’s suppression motion implicitly overruled or otherwise preserved

for appeal. Consequently, because there were no written orders, actions or other statements by the

trial court that unquestionably indicate that the trial court made the requisite adverse ruling, either

expressly or implicitly, regarding the suppression motion, we find that Corral has failed to preserve

error and has waived his second issue on appeal. Appellant’s second issue is overruled. Rey, 897

S.W.2d at 336; Dunavin, 611 S.W.2d at 97; see Licon v. State, No. 08-03-00386-CR, 2005 WL

82190, at *1 (Tex. App.–El Paso Jan. 13, 2005, no pet.) (not designated for publication) (defendant

pleaded guilty after suppression hearing at which trial court deferred ruling to consider case law to

be submitted by defense counsel; because appellate record did not contain an adverse ruling denying

defendant’s motion to suppress, and because a docket sheet notation that the motion had been denied

was deemed inherently unreliable and lacked the formality of orders and judgments, defendant had


                                                  3
waived any error and the appeal was dismissed for want of jurisdiction).

                             Writ of Habeas Corpus ad prosequendum

       In his sole issue remaining for our consideration, Corral contends that the trial court erred

by overruling his motion to dismiss the indictment because the State failed to bring him to trial

within 120 days as required under the Interstate Agreement on Detainers Act (IADA). We disagree.

                                                Facts

       The record on appeal demonstrates that the State petitioned the trial court in the underlying

case to issue a writ of habeas corpus ad prosequendum to secure custody of Corral from the U.S.

Marshal Service for the purpose of a hearing in the underlying case. Pursuant to the State’s request,

the trial court then ordered that a writ of habeas corpus ad prosequendum be issued to secure

Corral’s presence for the purpose of a hearing and the order stated that Corral would be returned to

the Sheriff’s custody at the conclusion of all pending cases. The trial court also signed an “Order

of Transport” ordering the El Paso County Sheriff to bring Corral to the court for the purpose of a

hearing and the order contained a provision that at the conclusion of all pending cases Corral “shall

be returned to the custody of the U.S. Marshal Service, El Paso, Texas.” A writ of habeas corpus

ad prosequendum was subsequently issued through the District Clerk’s office to the U.S. Marshal’s

Service, the El Paso County Sheriff, and the El Paso Chief of Police directing them to bring “the

body of [Corral] detained in your custody at [U.S. Marshal Service], EL PASO, TEXAS by

whatsoever name the said [Corral] may be known, 09:00 a.m. on the 13th day of FEBRUARY, 2006

to do and receive what shall then and there be considered concerning the said [Corral] so detained

as aforesaid.” The return of service on the copy of the writ that is contained in the record on appeal

does not identify where or upon whom the writ was actually served.


                                                  4
       On August 10, 2006, the trial court heard Corral’s motion as well as counsel’s arguments that

(1) Corral had been convicted in federal court, was in federal custody “across the street” under an

article 51.14 (IADA) detainer, (2) that the State had asked to have Corral brought to trial for the

underlying case, and (3) that Corral had not been tried within 120 days as of February 10, 2006,

when he was transferred into local custody. The State acknowledged that it had petitioned the trial

court to issue a writ of habeas corpus ad prosequendum and had brought Corral over from Hudspeth

County, Texas, but denied that Corral had been secured under an IADA detainer since Corral was

in a county jail and was not under prison control. Corral’s counsel responded by asserting that

Corral did not have to be imprisoned but merely within the custody of another jurisdiction for the

IADA to apply. The trial court overruled Corral’s motion to dismiss for want of jurisdiction.

       Corral pleaded guilty and then filed a motion for new trial. At the motion for new trial

hearing, the State explained that Corral had been in the custody of the U.S. Marshal’s Service and

that Corral had been transferred for the underlying proceedings pursuant to a writ of habeas corpus

ad prosequendum rather than a detainer because Corral was not incarcerated and was not in the

custody of a penal, institutional, or correctional facility. The State argued that the IADA and its

mandatory time frames for trying a prisoner were, consequently, inapplicable to Corral.

       Corral, in turn, offered for the trial court’s consideration an affidavit from Supervising

Deputy U.S. Marshal Alejandro Patino, which states that Corral was transferred from the Otero

County Prison Facility in New Mexico to the El Paso County Detention Facility on February 10,

2006, the day after the writ of habeas corpus ad prosequendum was served. In his affidavit, Deputy

U.S. Marshal Patino states that the transfer was made pursuant to “a formal request by the State of

Texas” to hold and transfer Corral, and he further notes that he is prohibited by uncited federal


                                                 5
regulations from releasing a paper copy of the electronic records due to law-enforcement sensitive

information contained therein. During the hearing, Corral’s counsel reiterated its contention that

Corral had been detained by the State under the IADA. The trial court overruled Corral’s motion

for new trial.

                                        Standard of Review

        The denial of a defendant’s motion to dismiss an indictment under the IADA is a question

of law reviewed de novo while the factual findings underlying the decision are reviewed on a clearly

erroneous standard. Johnson v. State, 900 S.W.2d 475, 479 (Tex. App.–Beaumont 1995) (citing

United States v. Hall, 974 F.2d 1201, 1204 (9th Cir. 1992)), aff’d as reformed, 930 S.W.2d 589 (Tex.

Crim. App. 1996).

                                          Applicable Law

        We find it necessary to the resolution of Corral’s issue to consider how a detainer filed in

accordance with the IADA differs from the issuance of a writ of habeas corpus ad prosequendum.

More than 30 years ago, the United States Supreme Court delineated these differences. United States

v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978).

        The IADA is a congressionally-sanctioned compact between the United States and the states,

which provides the procedure whereby a person who is imprisoned in one state can be expeditiously

tried for pending criminal charges in another state or federal jurisdiction while he is serving his

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

Birdwell v. Skeen, 983 F.2d 1332, 1336 (5th Cir. 1993). Texas, New Mexico, and the United States

are among the “party states” governed by the terms of the IADA. 18 U.S.C.A., App. 2, pp. 1395-98

(1976 ed.); TEX . CODE CRIM . PROC. ANN . art. 51.14 (Vernon 2006); NMSA 1978, §§ 31-5-12 to 31-


                                                 6
5-16; State v. Votta, 299 S.W.3d 130, 134-35 (Tex. Crim. App. 2009).

       While the term “detainer” is not defined within the IADA, in Mauro, the Supreme Court

noted that U.S. House and Senate reports reveal that “[a] detainer is a notification filed with the

institution in which a prisoner is serving a sentence, advising that [the prisoner] is wanted to face

pending criminal charges in another jurisdiction.” Mauro, 436 U.S. at 359, 98 S.Ct. at 1846 (citations

omitted, emphasis added). The Texas Court of Criminal Appeals has recognized that a detainer is

a request by a criminal justice agency that is filed with the institution in which the 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. Votta, 299 S.W.3d at 135, n.5.

       There are two ways by which the final disposition of a prisoner’s untried matters may be

sought under the IADA. Under the first scenario, if a detainer has been lodged and a prisoner seeks

final disposition of any untried indictment, information, or complaint, the prisoner must be brought

to trial within 180 days of being delivered to the receiving state, subject to his compliance with

additional requirements imposed by the provisions of the IADA that we will not discuss here. TEX .

CODE CRIM . PROC. ANN . art. 51.14, art. III(a)(b); State v. Miles, 101 S.W.3d 180, 183 (Tex.

App.–Dallas 2003, no pet.) (the provisions of Article III apply only when a detainer has first been

lodged against the prisoner).

       Under the second scenario, the IADA provides:

       The appropriate officer of the jurisdiction in which an untried indictment,
       information, or complaint is pending shall be entitled to have a prisoner against
       whom he has lodged a detainer and who is serving a term of imprisonment in any
       party state made available in accordance with Paragraph (a) of Article V hereof upon
       presentation of a written request for temporary custody or availability to the
       appropriate authorities of the state in which the prisoner is incarcerated; provided that
       the court having jurisdiction of such indictment, information, or complaint shall have


                                                  7
       duly approved, recorded, and transmitted the request; and provided further that there
       shall be a period of 30 days after receipt by the appropriate authorities before the
       request be honored, within which period the governor of the sending state may
       disapprove the request for temporary custody or availability, either upon his own
       motion or upon motion of the prisoner.

TEX . CODE CRIM . PROC. ANN . art. 51.14, art. IV(a). Both of these provisions require that a detainer

be lodged. As noted by the Supreme Court, when a detainer is lodged on the initiative of a

prosecutor or law enforcement officer, it requires additional action, that is, the filing of “a written

request for temporary custody or availability” by the receiving state, before the prisoner may be taken

into custody. Mauro, 436 U.S. at 352, 358, 98 S.Ct. at 1843, 1846; TEX . CODE CRIM . PROC. ANN .

art. 51.14, art. IV(a). The written request must be duly approved, recorded, and transmitted by the

court having jurisdiction over the untried indictment, information, or complaint, and the request is

also subject to the disapproval of the sending state’s governor. TEX . CODE CRIM . PROC. ANN . art.

51.14, art. IV(a). After meeting these and other prerequisites mandated by the IADA, a prisoner’s

trial must be commenced within 120 days after the arrival of the prisoner within the receiving state;

however, the trial court may grant any necessary or reasonable continuance for good cause shown,

in the presence of the prisoner and his counsel. TEX . CODE CRIM . PROC. ANN . art. 51.14, art. IV(a)-

(c).

       Conversely, a writ of habeas corpus ad prosequendum is issued by a court, rather than

prosecutors or law enforcement officers, and is immediately executed. Mauro, 436 U.S. at 360, 98

S.Ct. at 1847. In Mauro, the Supreme Court expressly held that a writ of habeas corpus ad

prosequendum is not a detainer and does not trigger the provisions of the IADA. Id. at 349, 361, 98

S.Ct. at 1841-42, 1848. Nor may a writ of habeas corpus ad prosequendum be considered a “written

request for temporary custody” as contemplated within the meaning of Article IV of the IADA,


                                                  8
unless a detainer is also filed. Id. at 361-62, 98 S.Ct. at 1848.

                                              Application

        Corral challenges the trial court’s decision to overrule his motion to dismiss the indictment

by which he asserted that the trial court had lost jurisdiction due to the State’s failure to try him

within 120 days under the provisions of the IADA. In conducting our analysis, we are mindful that

the trial court did not have an opportunity to consider Deputy U.S. Marshal Patino’s affidavit at the

dismissal hearing, as it was not executed until one month thereafter and it was only brought to the

trial court’s attention at the new trial hearing, after Corral had entered his guilty plea.

        While there is some evidence that Corral was transferred from the custody of the Otero

County Prison Facility by the U.S. Marshal, the fact remains that no evidence was ever presented to

the trial court showing that a detainer was filed either before or after the writ of habeas corpus ad

prosequendum was issued. Because the writ of habeas corpus ad prosequendum is not a detainer,

because there was no evidence presented to the trial court that showed a detainer had ever been filed

with the institution having custody of Corral, rather than with a law enforcement agency, and

because there was no evidence presented to the trial court showing that Corral was in fact “serving

a term of imprisonment” as required by the IADA, the Act’s time frame for bringing Corral to trial

in El Paso on the underlying charges did not apply here. Mauro, 436 U.S. at 349, 361, 98 S.Ct. at

1841-42, 1848; TEX . CODE CRIM . PROC. ANN . art. 51.14, art. IV(a); see McNulty v. State, No. 05-02-

00635-CR, 2003 WL 575212, at *2 (Tex. App.–Dallas Feb. 28, 2003, no pet.) (not designated for

publication) (where a formal detainer neither preceded nor followed the issuance of two writs of

habeas corpus ad prosequendum, the trial court’s issuance of the writs alone did not trigger the

application of the IADA); see also Espinoza v. State, 949 S.W.2d 10, 13 (Tex. App.–San Antonio


                                                   9
1997, pet. ref’d) (holding that neither the time period nor the dismissal provisions in the IADA

applied to a charge that did not form the basis of a detainer, and holding that the trial court did not

err in refusing to dismiss the non-detainer charge). Consequently, we find that the trial court did not

err when it overruled Corral’s motion to dismiss the indictment for lack of jurisdiction as the time

period for commencing trial under the IADA did not apply to him. Corral’s first issue on appeal is

overruled.

                                          CONCLUSION

       The trial court’s judgment is affirmed.



                                               GUADALUPE RIVERA, Justice

March 31, 2010

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




                                                  10
