Affirmed and Opinion Filed December 4, 2015




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-01460-CR
                                       No. 05-14-01461-CR

                          GUADALUPE MARTINEZ III, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 283rd Judicial District Court
                                   Dallas County, Texas
                     Trial Court Cause Nos. F06-68467-T & F06-68468-T

                              MEMORANDUM OPINION
                           Before Justices Bridges, Francis, and Myers
                                   Opinion by Justice Francis
       Guadalupe Martinez III appeals his convictions for the aggravated robberies of Amanda

Edmiston and Alyssa Acosta. After the jury found him guilty and found he used or exhibited a

deadly weapon during the offenses, the trial court assessed punishment in each case at fifteen

years in prison to be served consecutively. In five issues, appellant claims the trial court erred by

denying his motion to dismiss the indictments, the evidence is insufficient to support his

convictions, and the trial court lacked jurisdiction over the cases. We affirm.

       On July 20, 2006, after eating lunch at a Wendy’s restaurant on Forest Lane, Amanda and

Alyssa returned to Amanda’s car, an older blue Pontiac Bonneville with Texas license plates.

Alyssa sat in the front passenger seat while her friend changed her shoes in the back seat.

Appellant walked up, asked the time, then pulled out a gun, and told Amanda to get in the car
and drive. Amanda got in the driver’s seat while appellant sat in the back. He told the women

they were taking him to Kansas and took their cell phones, although he later returned Alyssa’s

phone to her. When the women told appellant they were not going with him to Kansas, he

“seemed to be okay with that.” He dropped them off near an elementary school and drove off in

Amanda’s car. They contacted the police with the license plate number and description of the

car. Later that day, appellant was arrested in Oklahoma driving Amanda’s car. Police found a

black 380 semiautomatic weapon on the driver’s side floor.

       That September, appellant was indicted on the two counts of aggravated robbery. In July

2009, a Dallas County detainer was filed on appellant with the Lawton, Oklahoma correctional

facility where appellant was confined. In April 2013, appellant sent a “Motion for speedy trial/or

dismissal of charges” to the “Court Clerk” in Dallas County. In December 2013, an assistant

district attorney for Dallas County sent a request for temporary custody to the warden of the

Oklahoma correctional facility where appellant was located, and on March 7, 2014, appellant

was booked into the Dallas County jail. A jury found appellant guilty of both offenses and he

was sentenced by the trial court.

       In his first issue, appellant contends the trial court erred by denying his motion to dismiss

the indictments with prejudice because he was not tried within 180 days of the date his written

request for final disposition was received.

       The Interstate Agreement on Detainers Act outlines the cooperative procedures to be used

between states when one state seeks to try a defendant who is imprisoned in the penal or

correctional institution of another state. State v. Votta, 299 S.W.3d 130, 134−35 (Tex. Crim.

App. 2009); see TEX. CODE CRIM. PRO. art. 51.14, Art. I (West 2006). The state with the untried

indictment files a detainer with the prison in the state that is holding the defendant; the prison

officials are required to promptly inform the defendant that the detainer has been filed and that

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he has the right to request final disposition of the charges. TEX. CODE. CRIM. PRO. art. 51.14,

Art. III; Votta, 299 S.W.3d at 135. The defendant may request final disposition by giving written

notice to the warden, who forwards the request, along with the certificate containing information

about the defendant’s current confinement, to the prosecuting officer and the appropriate court of

the prosecuting officer’s jurisdiction. TEX. CODE. CRIM. PRO. art. 51.14, Art. III; Votta, 299

S.W.3d at 135. Alternatively, the defendant may send the request himself; if he does so, he must

ensure the notice he sends complies with the requirements of Article III. Powell v. State, 971

S.W.2d 577, 580 (Tex. App.―Dallas 1998, no pet.); Burton v. State, 805 S.W.2d 564, 575 (Tex.

App.―Dallas 1991, pet. ref’d). The defendant must then be brought to trial in the receiving state

within 180 days of the date his written request was received unless the trial court grants a

continuance under the IADA. TEX. CODE. CRIM. PRO. art. 51.14, Art. III; see Kirvin v. State, 394

S.W.3d 550, 555−56 (Tex. App.―Dallas 2011, no pet.) (grant of reasonable or necessary

continuance tolls time limits set out in IADA).

       Although appellant claims he “caused to be delivered” his request for final disposition on

April 24, 2013, we disagree. The record shows a Dallas County detainer was filed on appellant

in Oklahoma in July 2009. On April 24, 2013, appellant mailed a letter addressed to the “Court

Clerk” at the Frank Crowley Courts Building along with three copies of a “Motion for a speedy

trial/or dismissal of charges,” citing article I, section 10 of the Texas Constitution and Smith v.

Hooey, 393 U.S. 374 (1969). Neither of these authorities invokes the IADA, and appellant’s

correspondence does not otherwise mention the IADA or a request for final disposition. These

documents were not sent to the prosecuting officer, nor did they disclose the information

required by Article III(a).    Because appellant’s communication did not comply with the

requirements of the IADA, the 180-day deadline was not triggered. See Burton, 805 S.W.2d 575

(because notices allegedly sent were not sent by registered or certified mail, return receipt

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requested and no notice was sent to district court, appellant never properly “caused to be

delivered” request for final disposition and 180–day period never began to run). Under these

circumstances, we cannot conclude the trial court erred by denying his motion to dismiss the

indictments under Article III of the IADA.

       In his second issue, appellant claims the trial court erred by denying his motion to dismiss

his indictments under Article IV because the State failed to bring him to trial within 120 days of

his arrival in Texas.

       Article IV provides that in “respect to any proceeding made possible by this article, trial

shall be commenced within 120 days of the arrival of the prisoner in the receiving state.” TEX.

CODE. CRIM. PRO. art. 51.14, Art. IV(c). The trial court, however, may grant any necessary or

reasonable continuance “for good cause shown in open court, the prisoner or his counsel being

present.” Id. Such continuances toll the 120-day deadline. See Kirvin, 394 S.W.3d at 555−56.

       Here, appellant was booked into the Dallas County jail March 7, 2014, and was appointed

counsel three days later. From March 28 until June 6, appellant’s legal counsel reset his cases

five times.   On June 9, new counsel was appointed and the cases were again reset until

November 3, 2014. Excluding the dates of the six continuances, the State brought appellant to

trial within the 120-day deadline. We conclude appellant’s complaint lacks merit and overrule

his second issue.

       In his third and fourth issues, appellant claims the evidence is legally insufficient to

support his convictions. Specifically, he argues the evidence is insufficient to establish he

committed theft or attempted theft by obtaining or maintaining control of Alyssa’s cell phone

and it “is absurd to conclude that anyone could identify” him eight years after the offense

occurred.




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       We review the question of legal sufficiency of the evidence under well-established

standards. We examine the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury is the exclusive judge of the

credibility of the witnesses and the weight to be given their testimony. Wise v. State, 364 S.W.3d

900, 903 (Tex. Crim. App. 2012). Thus, the jury resolves conflicts in the testimony, weighs the

evidence, and draws reasonable inferences from basic to ultimate facts. See Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007).

       A person commits robbery if, in the course of committing theft and with the intent to

obtain or maintain control of property, he intentionally, knowingly, or recklessly causes bodily

injury to another or intentionally or knowingly threatens or places another in fear of imminent

bodily injury or death. TEX. PENAL CODE ANN. § 29.02 (West 2011). A person commits theft if

he unlawfully appropriates property with intent to deprive the owner of the property. TEX.

PENAL CODE ANN. § 31.03(a) (West Supp. 2015). A person commits aggravated robbery if he

uses or exhibits a deadly weapon during the course of robbery. Id. at § 29.03(a)(2) (West 2011).

       At trial, both Amanda and Alyssa described appellant to the jury and identified him in

open court. Each woman confirmed appellant’s photograph as the one she had independently

selected the day after the incident from the photographic line up prepared by the police. In

addition, Deputy Sheriff David Lanman identified appellant as the man he stopped and arrested

in Oklahoma. At the time he was stopped, appellant was driving the blue Bonneville that had

been reported stolen. Furthermore, Alyssa told the jury appellant took both their cell phones

although he later returned hers. Contrary to appellant’s assertion, this evidence is sufficient to

identify him as the perpetrator and to establish he committed theft by taking Alyssa’s cell phone.




                                               –5–
Because the evidence is legally sufficient to support appellant’s convictions, we overrule his

third and fourth issues.

       In his final issue, appellant claims the trial court lacked jurisdiction to hear his cases

because nothing in the record shows a transfer order between the 204th Judicial District Court,

where the indictment was presented, and the 283rd Judicial District Court, where the case was

tried. We have previously addressed and rejected this argument concluding that while a specific

district court may impanel a grand jury, it does not necessarily follow that all cases returned by

that grand jury are assigned to that court.       Bourque v. State, 156 S.W.3d 675, 678 (Tex.

App.―Dallas 2005, pet. ref’d). Furthermore, appellant failed to preserve this complaint for

review by failing to pursue a plea to the jurisdiction. Lemasurier v. State, 91 S.W.3d 897, 899

(Tex. App.―Fort Worth 2002, pet. ref’d) (concluding that because lack of transfer is procedural

matter, not jurisdictional, appellant waives error on lack of transfer order by failing to file timely

plea to jurisdiction). We conclude this issue is without merit and overrule his final issue.

       We affirm the trial court’s judgments.




Do Not Publish
TEX. R. APP. P. 47                                     /Molly Francis/
141460F.U05                                            MOLLY FRANCIS
                                                       JUSTICE




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                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

GUADALUPE MARTINEZ III, Appellant                 On Appeal from the 283rd Judicial District
                                                  Court, Dallas County, Texas
No. 05-14-01460-CR       V.                       Trial Court Cause No. F06-68467-T.
                                                  Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee                      Justices Bridges and Myers participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered December 4, 2015.




                                            –7–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

GUADALUPE MARTINEZ III, Appellant                 On Appeal from the 283rd Judicial District
                                                  Court, Dallas County, Texas
No. 05-14-01461-CR       V.                       Trial Court Cause No. F06-68468-T.
                                                  Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee                      Justices Bridges and Myers participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered December 4, 2015.




                                            –8–
