Affirmed and Opinion filed October 30, 2018.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00344-CR

                 ARTHUR ALEXANDER OFFICE, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1380069

                                 OPINION

      Arthur Alexander Office appeals his conviction for aggravated assault of a
family member. He contends that the trial court erred by denying his motion to
dismiss his case with prejudice because “his trial was not conducted within 180 days
of the State and the trial court receiving Appellant’s request to be transferred
pursuant to the Interstate Agreement on Detainers Act.” Because the trial court did
not err in denying appellant’s motion to dismiss, we affirm.
                                   BACKGROUND
      Our recitation of the background of the case is constrained by the appellate
record before us. We draw the following from the limited record.
      Appellant was indicted on April 24, 2013, of aggravated assault of a family
member committed on February 27, 2013. He was released on bond in 2014.
Appellant was convicted on federal charges in 2015 and began serving a federal
prison sentence in Louisiana. Appellant was at some point “notified by the Federal
Bureau of Prisons staff that an outstanding warrant/detainer had been lodged against
[him] by Harris County, Texas authorities, and that the warrant/detainer charged
Aggravated Assault of a Family Member in violation of Texas law.”

      Appellant drafted a pro se motion to dismiss the charge for aggravated assault
of a family member with prejudice in accordance with the Interstate Agreement on
Detainers Act (IADA) on April 6, 2016, which was apparently sent via regular mail
to the Harris County District Attorney’s Office and file stamped “RECEIVED
DISTRICT ATTORNEY’S OFFICE APR 11, 2016.”

      The record contains an “AGREEMENT ON DETAINERS: FORM VII”
dated June 2, 2016, which is “used when an offer of temporary custody has been
received as the result of an inmate’s request for disposition of a detainer.” The form
states: “PROSECUTOR’S ACCEPTANCE OF TEMPORARY CUSTODY
OFFERED IN CONNECTION WITH A PRISONER’S REQUEST FOR
DISPOSITION OF A DETAINER,” and is addressed to the warden at the federal
correctional facility in Louisiana. The form further states:

      In response to the defendant’s request of April 20, 2016 and offer of
      temporary custody regarding Arthur Alexander Office, Inmate No.
      44730-379 who is presently under an indictment, information or
      complaint in the 177th District Court, Harris County, Texas of which I
      am an Assistant District Attorney, please be advised that I accept
      temporary custody and that I propose to bring this person to trial on the
                                          2
          indictment, information or complaint named in the offer within the time
          specified in Article III(a) of the Agreement on Detainers (IAD).
          I hereby agree that immediately after the trial is completed in this
          jurisdiction, I will return the prisoner directly to you or allow any
          jurisdiction you have designated to take temporary custody. I agree
          also to complete Form IX, Prosecutor’s Report for Disposition of
          Charges, immediately after trial, and return it to your state with the
          inmate.
This portion of the form is signed by an assistant district attorney. The last portion
of the form is signed by the judge of the 177th Harris County District Court and
states:

          I hereby certify that the person whose signature appears above is an
          appropriate officer within the meaning of Article IV(a) [of the IADA]
          and that the facts recited herein are correct and that having duly
          recorded this acceptance, I hereby transmit it for action in accordance
          with its terms and the provisions of the Agreement on Detainers.
The record also contains an “AGREEMENT ON DETAINERS: FORM VI” which
states that appellant will be taken into custody in Louisiana pursuant to the IADA
on September 12, 2016, “for delivery to Harris County, Texas for trial on or about
September 14, 2016[,] after completion of the trial, the inmate shall be returned to
the sending state.” The form then names several police officers who have authority
to act for the State of Texas to return appellant to Louisiana. The form is signed by
the assistant district attorney assigned to the 177th Harris County District Court. The
State sent Forms VI and VII together with a Prosecutor’s Certification dated June
29, 2016, to the warden of the federal correctional facility in Louisiana on July 25,
2016, explaining that travel arrangements would be made for appellant.

          Appellant was transferred from Louisiana to Harris County on September 9,
2016. Appellant was brought to court, and the trial court signed an order appointing
trial counsel on September 14, 2016. On the same order, the trial court ordered the
cause set by “operation of law” for an Evidence Exchange Hearing on November 1,

                                            3
2016, and a Comprehensive Pretrial Conference on December 13, 2016.                     A
Consultation Conference Scheduling Order was signed by the assistant district
attorney, appellant, and appellant’s trial counsel on September 14, 2016. The order
assessed the case as “basic” instead of “expedited” or “complex” and stated that “the
undersigned counsel hereby agrees this case is set for” an “Evidence Exchange
Hearing on November 1, 2016,” and a “Comprehensive Pretrial Conference on
December 13, 2016.”

      Appellant filed a Demand for Trial pursuant to the IADA on September 26,
2016, arguing that he is entitled to a trial within 180 days of “requesting the interstate
transfer.” Appellant argued that, unless he was granted a trial on or before October
16, 2016, which is 180 days from the date he requested his transfer to Texas on April
19, 2016, the trial court would have to dismiss his case with prejudice. The trial
court held a hearing on appellant’s motion on September 30, 2016, and signed an
order denying trial demand on December 20, 2016.

      A case reset form signed December 13, 2016, shows that the comprehensive
pretrial conference was reset by appellant to January 30, 2017. Over appellant’s
objection, the case was reset on January 30, 2017, to February 21, 2017. On
February 20, 2017, a jury trial was reset over appellant’s objection to March 7, 2017.
On March 7, 2017, a jury trial was reset over appellant’s objection to March 31,
2017, because another case was being tried in the trial court on that day by “the
prosecutor assigned to this case.”

      Appellant filed a motion to dismiss his case with prejudice pursuant to the
IADA on March 31, 2017, arguing that more than 180 days had passed since he
requested his transfer to Harris County to resolve the aggravated assault of a family
member case. In support of his motion to dismiss, appellant attached a copy of
Forms VI and VII; a copy of the Prosecutor’s Certification; a copy of the July 25,

                                            4
2016 letter sending Forms VI and VII to the warden in Louisiana and advising him
that travel arrangements for appellant will be made; and a copy of a priority mail flat
rate envelope addressed by appellant to the Harris County District Attorney’s Office
and stamped “RECEIVED DISTRICT ATTORNEY’S OFFICE APR 11, 2016,”
which apparently contained appellant’s pro se motion to dismiss drafted April 6,
2016. In that motion, appellant stated that prisoners may demand under the IADA
that charges against them be prosecuted within 180 days or be dismissed. Appellant
then concluded that, “in conjunction with the (I.A.D.), [he] requests that the
warrant/detainer be dismissed with prejudice, so as to preserve the States [sic]
resources in the extradition of defendant to Harris County to be better served in a
more suitable capacity on another cause.”

      The trial court held a hearing on appellant’s March 31, 2017 motion to
dismiss. After hearing arguments, the trial court denied appellant’s motion and
instructed appellant to decide if he wanted to resolve “this case short of trial” or
“we’ll go to trial next week.” Appellant pleaded guilty on March 31, 2017. Pursuant
to a plea agreement, appellant was sentenced to six years’ confinement. The trial
court certified appellant’s right to appeal. Appellant filed a timely notice of appeal.

                                      ANALYSIS

      Appellant argues in his sole issue that the trial court erroneously denied his
motion to dismiss because “his trial was not conducted within 180 days of the State
and the trial court receiving Appellant’s request to be transferred pursuant to the
Interstate Agreement on Detainers Act.” Appellant argues that Form VII, which was
signed by the State and the trial court on June 2, 2016, establishes that the State and
the trial court received notice of appellant’s request for final disposition on April 20,
2016, thus beginning the 180 day period for commencing trial pursuant to the IADA.
According to appellant, the trial court should have ordered a dismissal because the

                                           5
180 day period expired on October 17, 2016, and it “took a total of 346 days for the
State to bring the Appellant’s case to trial on March 31, 2017 after the State and the
trial court received notice of Appellant’s request on April 20, 2016.”

      The State counters that the trial court correctly denied his motion to dismiss
because the record does not show that (1) the State and the trial court were provided
with appellant’s request for a final disposition; and (2) appellant complied with the
IADA’s requirements.

      The IADA is a compact between states that enables a party state to obtain
custody of an out-of-state prisoner for prosecution and imposes duties to ensure a
prisoner’s quick return. Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim. App.
2017). Texas has codified the IADA in the Code of Criminal Procedure. See Tex.
Code Crim. Proc. Ann. art. 51.14 (Vernon 2018); State v. Votta, 299 S.W.3d 130,
134-35 (Tex. Crim. App. 2009). If a prisoner is serving a term of imprisonment in
another state and the State of Texas files a detainer in that other state, both the State
of Texas and the prisoner have a right to demand the transfer of the prisoner to Texas
for a final disposition of the Texas charge. Hopper, 520 S.W.3d at 924-25; see Votta,
299 S.W.3d at 134-35.

      The parties agree that appellant requested a transfer to Texas and that article
III of the IADA therefore is implicated in this case. Under article III, a prisoner may
make a request for final disposition of the charges pending against him. See Tex.
Code Crim. Proc. Ann. art. 51.14, art. III(a). He bears the burden of demonstrating
compliance with article III. Huff v. State, 467 S.W.3d 11, 24 (Tex. App.—San
Antonio 2015, pet. ref’d); Walker v. State, 201 S.W.3d 841, 846 (Tex. App.—Waco
2006, pet. ref’d); see Bryant v. State, 819 S.W.2d 927, 930-31 (Tex. App.—Houston
[14th Dist.] 1991, pet. ref’d). If a prisoner properly requests final disposition and
complies with the statutory requirements in article 51.14, then he must be tried

                                           6
within 180 days or the charge must be dismissed with prejudice. Tex. Code Crim.
Proc. Ann. art. 51.14, art. III(a), (b), (d); Huff, 467 S.W.3d at 22; State v. Powell,
971 S.W.2d 577, 580 (Tex. App.—Dallas 1998, no pet.); see also Votta, 299 S.W.3d
at 135. “[T]he 180-day time period in Article III(a) of the IAD[A] does not
commence until the prisoner’s request for final disposition of the charges against
him has actually been delivered to the court and prosecuting officer of the
jurisdiction that lodged the detainer against him.” Fex v. Michigan, 507 U.S. 43, 52
(1993); see also Votta, 299 S.W.3d at 135; Powell, 971 S.W.2d at 580.

       To properly request final disposition under article III, a prisoner must “have
caused 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.” Tex. Code Crim. Proc. Ann. art. 51.14, art. III(a). “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.” Id. “And, should
that information not be forwarded with the request for final disposition, the 180 day
timeline remains dormant.” State v. Garcia, 361 S.W.3d 244, 246 (Tex. App.—
Amarillo 2012, no pet.); see Lara v. State, 909 S.W.2d 615, 617-18 (Tex. App.—
Fort Worth 1995, pet. ref’d).

      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
to the court and prosecuting attorney of the state which lodged the detainer against
him; or (2) delivering his request directly to the court and prosecuting attorney of

                                          7
that state. Walker, 201 S.W.3d at 846; Burton v. State, 805 S.W.2d 564, 574-75
(Tex. App.—Dallas 1991, pet. ref’d); see Tex. Code Crim. Proc. Ann. art. 51.14,
art. III(b). If a prisoner delivers the request to the warden where he is incarcerated
to forward the request, then the prisoner’s “‘only obligation [i]s to show that he
notified the appropriate [prison] officials of his desire to [be transferred].’” Walker,
201 S.W.3d at 846 (quoting Burton, 805 S.W.2d at 575). “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.; see
Bryant, 819 S.W.2d at 931; Burton, 805 S.W.2d at 575.

      A trial court’s ruling on a motion to dismiss pursuant to the IADA and whether
there has been compliance with the requirements of the IADA is a legal question
reviewed de novo. See Kirvin v. State, 394 S.W.3d 550, 555 (Tex. App.—Dallas
2011, pet. ref’d); Walker, 201 S.W.3d at 845; Lindley v. State, 33 S.W.3d 926, 930
(Tex. App.—Amarillo 2000, pet. ref’d). Any factual findings underlying that
decision are reviewed on a clearly erroneous standard. Walker, 201 S.W.3d at 845;
State v. Miles, 101 S.W.3d 180, 183 (Tex. App.—Dallas 2003, no pet.); Lindley, 33
S.W.3d at 930.

      Appellant contends that the trial court erroneously denied his motion to
dismiss because Form VII establishes that the State and the trial court received notice
of appellant’s request for final disposition on April 20, 2016, and trial was not
conducted within 180 days of receiving his request. Appellant does not point to
anything in the record as the actual request for final disposition. It seems appellant’s
pro se motion to dismiss, signed April 6, 2016, and sent to the District Attorney’s
Office is the only document in the record that could be considered a request for final
disposition. But even though his motion specifically mentions the IADA and article

                                           8
51.14, appellant failed to comply with the requirements of the IADA in several
respects. Therefore, the 180 day period under article III of the IADA never began
to run.

      First, it is debatable whether appellant made a request for final disposition in
his April 6, 2016 motion to dismiss when he “request[ed] that the warrant/detainer
be dismissed with prejudice, so as to preserve the States [sic] resources in the
extradition of defendant to Harris County to be better served in a more suitable
capacity on another cause.” Assuming for the sake of argument that this constitutes
a request for final disposition, the motion was not sent via registered or certified
mail, return receipt requested. See Huff, 467 S.W.3d at 25-26 (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 so that the 180 day deadline never commenced); Powell, 971
S.W.2d at 580 (court of appeals reversed grant of motion to dismiss because
defendant failed to comply with the IADA requirements when he sent his request
“by regular first-class mail, not registered mail” so that the 180 day deadline did not
begin to run); Burton, 805 S.W.2d at 575 (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 so that the
180 day deadline never commenced); see also 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) (same).

      Second, there is no evidence in the record that appellant sent his April 6, 2016
motion or any other request for final disposition to the trial court. Therefore, no
request was “delivered to the prosecuting officer and the appropriate court of the
prosecuting officer’s jurisdiction” as required by article III. See Tex. Code Crim.

                                           9
Proc. Ann. art. 51.14, art. III(a) (emphasis added); Burton, 805 S.W.2d at 575 (trial
court properly denied motion to dismiss because defendant did not comply with
IADA requirements when he failed to send his request to the trial court so that the
180 day deadline never commenced); see also Martinez v. State, Nos. 05-14-01460-
CR & 05-14-01461-CR, 2015 WL 7874210, at *2 (Tex. App.—Dallas Dec. 4, 2015,
no pet.) (mem. op., not designated for publication) (trial court properly denied
motion to dismiss because defendant did not comply with IADA requirements when
he sent his request to the trial court but not to the prosecuting officer); McNulty, 2003
WL 575212, at *2 (trial court properly denied motion to dismiss because defendant
did not comply with IADA requirements when he failed to send his request to the
trial court); Owens v. State, No. 11-96-397-CR, 1998 WL 34334489, at *2 (Tex.
App.—Eastland May 8, 1997, pet. ref’d) (not designated for publication) (trial court
properly denied motion to dismiss because defendant did not comply with IADA
requirements when he “failed to deliver his request for final disposition to the trial
court”).

      Third, there is no evidence in the record that appellant’s April 6, 2016 motion
was “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” as required by article III(a). And
although appellant’s motion provides information about his term of commitment, it
does not disclose, as required by article III(a), the time already served, the time
remaining on his sentence, good time earned, his parole eligibility, and any decision
of the state parole agency. See Tex. Code Crim. Proc. Ann. art. 51.14, art. III(a);
Huff, 467 S.W.3d at 25-26 (trial court properly denied motion to dismiss because


                                           10
defendant did not comply with IADA requirements when he failed to provide the
certificate and the information required to be included therein so that the 180 day
deadline never commenced); Garcia, 361 S.W.3d at 246 (court of appeals reversed
grant of motion to dismiss because defendant did not comply with IADA
requirements when he failed to provide the certificate and the information required
to be included therein so “the 180 day timeline remain[ed] dormant”); Lara, 909
S.W.2d at 617-18 (trial court properly denied motion to dismiss because defendant
did not comply with IADA requirements when he failed to provide the certificate
and the information required to be included therein so that the 180 day deadline
never began to run); Bryant, 819 S.W.2d at 930-31 (same); see also Martinez, 2015
WL 7874210, at *2 (same); McNulty, 2003 WL 575212, at *2 (same).

      Based on the record before us, we conclude that appellant failed to comply
with the requirements of the IADA, and that the 180 day deadline was not triggered.
Therefore, the trial court properly denied appellant’s March 31, 2017 motion to
dismiss. Accordingly, we overrule appellant’s sole issue.

                                  CONCLUSION

      We affirm the trial court’s judgment.




                                              /s/   William Boyce
                                                    Justices


Panel consist of Justices Boyce, Donovan and Wise.
Publish — Tex. R. App. 47.2(b).




                                        11
